National Union of Mineworkers and Others v WBHO Construction (Pty) Ltd (J1687/15, JS620/15) [2017] ZALCJHB 512 (13 December 2017)

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[2017] ZALCJHB 512
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National Union of Mineworkers and Others v WBHO Construction (Pty) Ltd (J1687/15, JS620/15) [2017] ZALCJHB 512 (13 December 2017)

THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
case
no:  J 1687 / 15
JS
620 / 15
In
the matter between:
NATIONAL UNION OF MINEWORKERS

First Applicant
PERSONS LISTED IN ANNEXURE
“A”

Second to Further Applicants
and
WBHO CONSTRUCTION (PTY)
LTD

Respondent
Heard
:
June 2017
Delivered
:
13 December 2017
Summary:
Operational requirements – rationale for retrenchment –
evidence
considered – proper rationale for retrenchment
shown
Operational requirements –
bumping of employees between operating divisions – principles
pertaining to bumping considered
– proper cause for
differentiating between divisions – proper cause for not
applying bumping across all divisions –
approach of employer
fair
Operational requirements –
selection criteria – retention of TES employees on specific
contracts – approach justified
– employer did not act
unfairly
Operational requirements –
issue of alternatives to retrenchment considered – alternatives
properly explored –
lay off policy considered – no
suitable alternatives available
Operational requirements –
selection criteria considered – fair and objective basis for
selecting employees for retrenchment
– selection of employees
not unfair
Re-employment – alleged
failure by employer to re-employ in terms of undertaking –
constitutes an issue of an unfair
labour practice in terms of Section
186(2)(c) of the LRA – no such case referred to conciliation –
cannot be raised
now
Dismissal – operational
requirements – dismissal substantively fair
Operational requirements –
procedural fairness – Section 189A(8) considered – no
requirement to first refer matter
to conciliation before retrenchment
– absence of referral does not render dismissal procedurally
unfair – issue is
about time limits – time limits
complied with
Operational requirements –
procedural fairness – even if Section 189A(8) not complied with
– insufficient basis
to per se establish procedural unfairness.
Operational requirements –
procedural fairness – procedural unfairness can only be
challenged in the case where Section
189A applies by way of
application in terms of Section 189A(13) – procedural challenge
thus only be decided on the basis
of procedural fairness set out in
that application – no issue raised that labourers not properly
notified of retrenchment
or properly consulted – cannot be
considered
Dismissal – operational
requirements – procedural fairness – dismissals
procedurally fair
JUDGMENT
SNYMAN, AJ
Introduction
[1]
The
first applicant, NUM, brings this case on behalf of all its members
that has been retrenched by the respondent. This is therefore
a case
of unfair dismissal based on operational requirements, in which both
the substantive and procedural fairness of the dismissal
are
challenged. It was common cause that Section 189A of the LRA
[1]
applied to the dismissals in this case.
[2]
The
applicants have brought this case by way of a statement of claim
filed on 16 September 2015, as well as a separate application
in
terms of Section 189A(13) also filed on 16 September 2015 to
challenge procedural fairness, considering the provisions of Section

189A(17).
[2]
The respondent has opposed both these processes, on the basis that
the retrenchment of the employees concerned was in all respects
fair,
by way of an answering statement dated 16 October 2015 and an
answering affidavit also filed on the same date.
[3]
The
matter came before me on trial from 12 to 15 June 2017. Closing
argument was presented by both parties on 15 June 2017, but
I also
afforded both parties the opportunity to file further written
argument by 30 June 2017.  The applicants and the respondent

indeed filed written argument on 26 and 27 June 2017, respectively.
[4]
Before
the matter commenced on actual trial, a number of preliminary issues
were first dealt with. Firstly, the applicants’
Section
189A(13) application was filed out of time, and condonation in this
regard was applied for by the applicants.  This
application was
unopposed, and in my view the applicants had submitted a proper
explanation for the delay.  I granted condonation
for the late
filing of the Section 189A(13) application.
[5]
The
issue of which of the individual applicants were still party to these
proceedings and properly before Court was then dealt with.
The
matters concerned three divisions of the respondent, being the Civils
Division (‘Civils’), Building North
Division (‘Building
North’), and the Plumbing Division (‘Plumbing’).
It was agreed between the parties
that all the individual applicants
retrenched in Civils was contained in the final list found at pages
120 – 122 of the pleadings
bundle, amounting to 98 individual
applicants.  It was also agreed that the list of individual
employees retrenched in Plumbing
was the list found at page 117 of
the pleadings bundle, and amounted to a further 12 individual
applicants.  In the end, the
applicants could not establish the
existence of any individual applicants retrenched in Building North
that were a party to these
proceedings. This means that the only
individual applicants that are a party to this case are those from
Civils and Plumbing, constituting
a total of 110 individual
applicants.
[6]
Next,
by way of opening address and with reference to the Practice Notes
filed as well as the pre-trial minute, the parties sought
to finally
narrow the issues that needed to be decided, where it came to the
grounds on which the applicants’ case of substantive
and
procedural unfairness were based. It must be said that the applicants
never placed the general rationale for the restructuring
and
retrenchments in dispute. As to what was in dispute, and what need to
be decided, the essence of which is summarised as follows:
6.1
The
respondent should have applied bumping of employees across certain
divisions, being Building North, Civils and Plumbing.
The point
that the applicants sought to make was that the retrenched employees
in Civils and Plumbing could have been accommodated
in comparable
positions occupied by other employees in Building North with much
shorter service.
6.2
According
to the applicants, there were vacancies available in Building North
which could have been offered to retrenched employees
as an
alternative, which meant they could simply be transferred into
Building North without the need to retrench them
6.3
The
respondent should have terminated the services of all the labour
broker (TES) employees employed in Building North and made
those
positions available to the employees sought to be retrenched in
Plumbing and Civils.
6.4
Instead
of retrenchment, the respondent had the option available of applying
a lay-off policy, which had been agreed to between
the respondent and
the first applicant sometime earlier.  Because this lay-off
policy was a collective agreement, the respondent
was obliged to
apply it.
6.5
The
respondent failed to comply with its own undertaking to re-employ
retrenched employees, when vacancies arose after the retrenchment

process had been completed.
6.6
Finally,
and as to procedural unfairness, there were only two issues raised.
The first issue is that because Section 189A applied,
the respondent
was supposed to have referred the matter to the CCMA for conciliation
before retrenching employees in Civils and
Plumbing, and the failure
to do this rendered the dismissal procedurally unfair. Secondly, the
respondent, where it came to Civils,
failed to properly notify the
labourers that they could be affected by the retrenchment and did not
properly consult with them,
rendering their dismissal procedurally
unfair.
[7]
As to
consequential relief in the case of a finding of unfair dismissal,
the applicants seek fully retrospective reinstatement of
all the
retrenched individual applicants, with full back pay to date of their
dismissal.  In the case of a finding only of
procedural
unfairness, the applicants seek compensation equivalent to 6(six)
months’ salary.
[8]
Having
now set out all the issues to be decided, I will commence with first
setting out the relevant background facts. I may add
that in the end,
much of the factual matrix in this matter, as well as the documentary
evidence, was either undisputed or common
cause.
Background
facts
[9]
The
respondent in essence had five different operating divisions, being
Civils, Building North, Road and Earthworks (‘Roadworks’),

Plumbing and Plant.
[10]
On
face value, these different operating divisions were entire separate
from one another.  They in effect operated in different
market
segments, had different clients, and did different kinds of work.
Each division also had its own management and administration,

management accounts, and financial statements. According to the
respondent, each division may as well be considered to be a distinct

and separate business.
[11]
Civils
did what can be generally classified as heavy concrete work.
Building North principally constructed buildings such
as high rises
and office blocks.  Earthworks did large earthworks, earth
platforms, and roads.  The name ‘Plumbing’
speaks
for itself as to what is conducted in this division.
[12]
Civils
conducted business is a regulated working environment, and would
often use specialised subcontractors. Civils mostly did
work for the
various mines.  This meant that all employees working at the
mines had to go through an extensive period of induction
and had to
be cleared before being allowed to work on a mining site, which
affected the mobility of the workforce.
[13]
The
specialised positions in Civils were that of shutter hands, concrete
hands and construction hands. A shutter hand would be tasked
to put
together the formwork for the concrete, and the concrete hand would
do the actual concrete work. The construction hand would
assist
either the shutter hand, or concrete hand. The respondent sought to
distinguish these positions from the similar named positions
in
Building North.  It was explained that shutter hands in Building
North do not do the kind of formwork done by their namesakes
in
Civils, and also Building North shutter hands only do partial
formwork for parts of structures. Building North does not have

concrete hands, and that all concrete work is done by construction
hands. Again, this concrete work is not the kind of specialized

concrete work done in Civils, and is of a general construction
nature.
[14]
Civils
did not employ most of its general labourers or general workers on a
permanent basis. It obtained most of this kind of labour
only on
specific projects and then also only on limited duration (fixed term)
contracts linked to that project. There were a limited
amount of
general labourers still employed in Civils when the retrenchment
process giving rise to this matter arose. It was also
explained that
it was often a requirement by a client that general labour must come
from the local community where the project
is situated.
[15]
Building
North and Civils served an entirely different client base. Building
North principally did private contract work, for private
company
clients. This is a far less regulated working environment. Also, on
these kind of projects, Building North is not the only
contractor
working on the project, but would work with other specialized
contractors as well.
[16]
It
was undeniable that Civils, by 2014, was going through tough times.
In effect, the work was drying up and there were no reasonable

prospects of any further work in at least the short term. A number of
contracts were coming to an end and the mines (as the principal

clients of Civils) had drastically curbed spending.  Also, the
parastatals for which Civils did work were not allocating work.
The
respondent had prepared a list of all the contracts in Civils as at
August 2014, with an indication as to when this work would
end. This
list was presented to the first applicant in the consultations to
follow.  It was clear from this list that by the
middle of 2015,
all the contracts, save for two smaller contracts, would end. This
list also showed the number of foremen teams
on each contract. A
foreman would head up a team of the specialized employees referred to
above. According to the list, 17 senior
foremen teams, 29 foremen
teams, and 27 junior foremen teams would be directly impacted when
the contracts came to an end.
[17]
By
October 2014, Civils was looking at downsizing a total of 17 foremen
teams, involving a total 225 employees. This was, at the
time, the
envisaged worst case scenario for Civils. Civils however did anything
it could to avoid retrenchments. These measures
included seconding
teams to work on Roadworks projects to do civils kind of work,
expanding the scope of tenders to smaller projects,
and changing the
tender model. Another given example was that Civils, on the
Bloemfontein stadium project, even took to funding
the project out of
its own cash flow to keep it going until payment was received from
the client.
[18]
Civils,
as part of its proposed restructuring, also envisaged doing away with
all general labourer positions as permanent employment
positions. If
and where such labour would be required, they would engage labourers
only on the basis as required by a specific
project and then only on
fixed term contracts linked to that project.
[19]
On 15
July 2014, Civils issued a notice as contemplated by Section 189(3)
of the LRA to all relevant parties, including the first
applicant, of
its intention to restructure. The reason for restructuring given in
this notice was based on what has been summarized
above.
[20]
A
first consultation took place on 11 August 2014. It was more of an
introductory consultation, in which the rationale for the
restructuring and possible retrenchments was explained. The
consultation was attended by representatives of the first applicant,

who submitted a request to be provided with the number of employees
likely to be affected, the specific occupation and sites of
these
employees, as well as the total number of employees in Civils.
Civils undertook to provide that information.
[21]
On 26
August 2014, the information requested by the first applicant was
provided, in the form of lists.  These lists showed
the
categories of employees, being section leaders, concrete hands,
shutter hands and construction hands, with their starting date
of
employment and specific positions.  It was common cause that
general labourers were not listed.
[22]
The
next consultation took place on 4 September 2014. In this
consultation, the parties discussed alternatives to retrenchment.

One of these was that Civils would leave foremen teams at the Kusile
projects without invoicing the joint venture for longer than
normal.
It was also discussed that Civils managed to get one new small
contract that could accommodate one foreman team. The possible

seconding of teams to Building North was considered, but this was not
possible, on the basis that this had been tried in the past,
but was
not workable. The reasons for this have been set out above, but an
additional consideration was that the two divisions
even operated
under different bargaining councils.
[23]
A
third consultation took place on 23 October 2014. In this
consultation, a summary of the rationale for the restructuring and
the measures taken to try and avoid retrenchment was presented. These
measures included what has been set out above, but also included

terminating all limited duration contracts.   No issue was
taken with this presentation, by the first applicant. The
first
applicant however did raise certain specific issues in this
consultation.  It was requested that the retrenchment process
in
Civils be consolidated with that in Building North, and that bumping
be applied across Civils and Building North.  The
first
applicant further requested that the date of retrenchment be
postponed to December 2014, and a possible increase in the severance

package be considered.
[24]
Where
it came to the issue of selection, the parties were
ad
idem
that LIFO be used, in specific job categories.  Initially Civils
wanted to include absenteeism and disciplinary records in
the
selection process, but the first applicant was opposed to this, and
it was then agreed to drop this. It was however also agreed
that
senior foremen core teams would be excluded from selection, because
of their particular speciality.
[25]
The
fourth and final consultation convened on 4 November 2014. In this
consultation, the rationale for retrenchment was not challenged.

But what the first applicant certainly took issue with was the issue
of selection. The first applicant insisted that one process
should be
conducted for both Civils and Building North jointly, and that the
agreed selection criteria be applied across both these
divisions and
that bumping be applied.  The first applicant did not accept the
explanation that the divisions were separate
and why they were
separate.  As a result, the first applicant refused to
participate in the consultation further, and left.
The
consultation continued with the other participants, and the manner of
application of LIFO as primary selection criteria was
discussed.
Voluntary retrenchments were also made available.
[26]
Civils
then proceeded to draw up lists of employees to be selected for
retrenchment, applying LIFO by occupational category. These
lists
were sorted by way of starting date of employment per occupational
category, of all employees in these categories, and the
selected
names were indicated in yellow.   These lists were then
circulated to all parties concerned, including the first
applicant.
No comment was received to the same. In the end, 137 employees would
face retrenchment.
[27]
On 8
December 2014, all affected employees in Civils were then given
notices of retrenchment, in terms of which their employment
was
terminated with effect from 11 December 2014 on one months’
notice, paid in lieu of notice.  The retrenchment notice

recorded that in the event of future vacancies arising within a
period of six months from date of the notice, for which an employee

may be suitable, the employee will be notified and may be offered
employment.
[28]
Turning
then to Plumbing, it is a small division in the respondent which
principally only does specialized plumbing work on other
contracts of
the respondent. However, Plumbing is not guaranteed such work, and
actually tenders for such work against other third
party service
providers. Thus, Plumbing is not even guaranteed work on contracts of
the respondent in other divisions. Plumbing
mainly did work for
Building North.
[29]
Plumbing
employed skilled and semi-skilled plumbers, as well as what was
called plumbers’ assistants. It does not employ general
workers
on a permanent basis, and would from time to time employ general
labourers on a fixed term contract basis where a project
required it.
An example would be where the work requires the digging of a trench.
This limited duration labour would be provided
by labour brokers.
Plumbing however only permanently employs a core group of skilled
employees, with employees working in teams
consisting of a skilled
and semi-skilled plumber, with an assistant.
[30]
After
the 2010 World Cup Soccer tournament, the work of Plumbing started to
diminish. There was a downward trend in volumes of work,
as well as
in the margins for the work. Similar to Civils, in 2014, it was
apparent that work in Plumbing was drying up and there
were no new
contracts in the pipeline. In simple terms, Plumbing simply had too
many employees for the amount of work available.
Plumbing was
actually in danger of being closed.
[31]
Similar
to the other divisions, Plumbing is also an entirely independent
operation, with its own management and financial records.
It is also
clear that the nature of the work it performs is entirely different
to that of the other divisions.
[32]
On 23
October 2014, Plumbing issued its own notice as contemplated by
Section 189(3) of the LRA with regard to its intended restructuring,

to all relevant parties, including the first applicant. In this
notice, it is specifically stated that Plumbing has insufficient
work
to sustain the current workforce.
[33]
A
first consultation was held on 30 October 2014, and was attended by
the first applicant. In this consultation, the rationale for
the
restructuring was discussed. The first applicant requested
information about the number of employees that would be affected
and
their positions, as well as the various contracts they were working
on. The requested information was provided on 3 November
2014, which
included a list of contracts and employees working on those
contracts, as well as the complement of staff that would
be required
going forward. It was envisaged that 20 employees would be affected.
[34]
A
second consultation was held on 10 November 2014. The first applicant
took no issue with any of the information provided. Similarly,
the
selection criteria of LIFO per occupational category was not taken
issue with.  The first applicant raised no issue about
bumping
being applied where it came to Plumbing employees.  In this
consultation, it was apparent that retrenchments were
unavoidable and
the parties then discussed termination benefits.  In the end, 19
employees were selected to be retrenched,
with 12 of these employees
being members of the first applicant.
[35]
On 13
November 2014, all affected employees in Plumbing were then given
notices of retrenchment, in terms of which their employment
was
terminated with effect from 10 December 2014 on one months’
notice, paid in lieu of notice.  The notice equally
recorded
that in the event of future vacancies arising within a period of six
months from date of the notice, for which an employee
may be
suitable, the employee will be notified and may be offered
employment.
[36]
It is
the termination of employment of the first applicant’s members
in Civils and Plumbing that has led to the current proceedings,
with
the fairness of such dismissal being challenged on the basis as
summarized above.  I will now commence deciding the fairness
of
such dismissals, starting with the issue of substantive fairness.
Was
the dismissal substantively fair?
[37]
The
issue of whether a dismissal for operational requirements is
substantively fair is decided by way of answering what is called
a
general question and a specific question.  As said in
Chemical
Workers Industrial Union and Others v Latex Surgical Products (Pty)
Ltd
[3]
:
‘
Whether
or not there was a fair reason for the dismissal of the individual
appellants relates to a general question and a specific
question. The
general question is whether or not there was a fair reason for the
dismissal of any employees. The specific one is
whether there was a
fair reason for the dismissal of the specific employees who were
dismissed, which in this case, happened to
be the individual
appellants. The question of a fair reason to dismiss the specific
employees who were dismissed goes to the question
of the basis upon
which they were selected for dismissal whereas the other question
relates to whether or not there was a reason
to dismiss any employees
in the first place.’
[38]
In
seeking to answer the general question first, as touched on above,
the rationale for retrenchment was in reality not challenged.

The applicants never took issue with the respondent’s decision
to restructure both in Civils and in Plumbing, as well as
the
operational considerations underlying such decision.  It was
certainly a course of action the respondent was justified
to pursue
and made general and proper business sense. As said
Kotze v Rebel
Discount Liquor Group (Pty) Ltd
[4]
:
‘…
What
we have to do is to decide whether the respondent's decision to
retrench was informed and is justified by a proper and valid

commercial or business rationale. If it is, then that is the end of
the enquiry even if it might not have been the best under the

circumstances. …’
Equally,
the applicants have never contended that the respondent’s
decision to restructure in Civils and Plumbing, which led
to the
ultimate retrenchments, was not genuine or was in reality a sham.
[5]
There is accordingly no case or basis to interfere with this
decision, and I shall deal with it no further.
[39]
But
where it comes to answering the general question, there are three
issues that must be considered.  The first is the issue
of the
lay-off policy, which the applicants contend would have removed the
very need to retrench employees if it was applied.
The second
issue is that if the TES employees were let go, this equally would
have removed the need to retrench the individual
applicants.
And finally, the third issue is that retrenched employees could have
been transferred to existing vacancies in
Building North, thereby
also removing the need to retrench such employees.
[40]
Turning
then to the specific question, this is in essence the core of the
applicants’ substantive unfairness challenge.
The
applicants’ complaint that bumping should have applied across
both Civils and Building North in the respondent, is squarely
an
issue of selection.
[6]
In short, the applicants are saying that the wrong persons, being the
individual applicants, were selected for retrenchment,
in that other
employees in Building North with shorter service should have been
selected.
[41]
I
will now proceed to consider the issues relating to both the general
question and the specific question, under separate headings,

hereunder, starting with the general question.
Evaluation:
the general question
[42]
Dealing
firstly with the lay-off policy (‘the policy’), it is
contained in a collective agreement concluded between
the respondent
and the first applicant on 29 September 2010.  It is stipulated
in the policy that the building and construction
industry is
cyclical, with ‘gaps’ (for the want of a better
description) between when one project starts and another
begins.
It is in fact provided in clause 1 that ‘
Due
to anticipation of future work/projects lay-offs are preferred over
retrenchment as a short term retention of skills’
.
Further, clause 5 of the policy specifically provides that the policy
will be implemented on a divisional basis and within
a division,
where there is no longer work on a specific site. As lay off benefit,
employees receive 50% of salary for a maximum
of 6 (six) weeks.
[43]
The
case of the applicants was that the application of the policy could
have avoided retrenchments.  I cannot agree.
Lambert
Johannes Smit (‘Smit’), the first witness for the
respondent, and the managing director of Civils for the last
7
(seven) years, explained that the lay-off policy was not applied in
Civils.  Instead, Civils utilizes an industry collective

agreement in the Bargaining Council for the Civil Engineering
Industry (“BCCEI’) which provides for short time in such

events, and which is more beneficial to employees.  In terms of
this BCCEI agreement, employees that are not placed on site
for work
are paid 30 hours per week, instead of the normal 45 hours, for as
long as they are not working. According to Smit, there
was never any
issue raised by the employees or the first applicant about this
whenever it was applied, because it was more beneficial
to
employees.  Significantly, this evidence of Smit emerged
undamaged from cross-examination.  It would thus seem that
where
it came to Civils, the policy had been overtaken by subsequent
industry provisions.
[44]
Be
that as it may, even if the provisions of the policy are considered,
it cannot assist the applicants. I am also mindful of the
fact that
the policy was never raised by the first applicant in the course of
the consultations as an alternative to retrenchment,
which seems to
indicate that it was in reality not a viable option. But it is the
terms of the policy itself which convinces me
that it is no
alternative at all.  As stated above, the policy had an
objective.  That objective was to provide for the
hiatus between
one project ending and another one starting.  Its application
was always premised on the continued availability
of work.
Considering that the application of the policy takes place in
individual divisions and not across divisions, it
did not provide for
the scenario that existed in Civils, being that the availability of
work was actually drying up.  Work
was ending, with no prospects
of further work.
[45]
In my
view, the application of the policy had no point.  As stated,
lay-off contemplates that work would become available in
the short
term, being an issue stipulated in the policy itself.  On the
undisputed evidence, in the end, no such work was
available, with no
short term prospects of further or new work.  In short, with no
prospect of available work to move into,
there is nothing pending
which could be covered by lay-off. Accordingly, the lay-off policy
cannot assist the applicants were it
comes their case of substantive
unfairness of the dismissal.
[46]
Next,
I will deal with the issue of the respondent retaining the services
of temporary employment service (‘TES’) employees
in
Building North, instead of terminating the services of such employees
and the applying the vacancies so created to the individual

applicants that faced retrenchment in Civils, or in Plumbing.
It must be mentioned that employment of all the fixed term
contract
employees, or temporary employees provided by third parties, in
Civils itself, were terminated first during the restructuring
process
in Civils.  When the individual applicants in Civils were
retrenched, there were no TES employees remaining.
No TES
employees were also employed in Civils after the retrenchments.
[47]
The
applicants placed some reliance on a list of TES employees provided
by Colven group as part of process by the applicants to
compel
disclosure of information from the respondent.  It was clear
from this list that none of these employees were provided
to Civils.
They were all working on Building North contracts / projects.
It is also clear that these were virtually
all general labourers /
workers positions.  According to the applicants, if all these
TES employees engaged as at December
2014 were let go, all the
individual applicants could be accommodated in such positions.
[48]
In
this context, Smit in fact explained that where it came to general
workers and unskilled labour, it was often subject to specific
client
requirements to use local labour, and that this kind of labour was
quite contract specific.  He explained that as a
matter of
business decision, this kind of labour would only be procured on a
temporary basis linked to specific contracts / projects.
It
would never be part of the permanent workforce.
[49]
But
according to the applicants, the explanation provided by Smit is as a
matter of principle unacceptable.  As far as the
applicants were
concerned, it would always be
per
se
unfair, should the respondent seek to retrench its own employees, but
then still retain the services of TES employees.  In
short, and
as far as the applicants were concerned, all TES employees must
always go first, no matter what.
[50]
I
simply cannot ascribe to this approach propagated by the applicants.
In my view, it simply cannot be said that as a matter
of principle,
an employer must always be required to first dispense with TES
employees in order to ensure that the retrenchment
of its own
employees would be considered to be fair.  There may well be
circumstances where it would be operationally justified
for an
employer to retain TES employees even when it seeks to retrench its
own employees.  This would of course depend on
what the
employer’s genuine operational imperatives are, and whether
these imperatives actually justify such an approach.
[51]
The
Court in
Forecourt
Express (Pty) Ltd v SA Transport and Allied Workers Union and
Another
[7]
dealt with the situation where employees were offered alternative
positions with a temporary employment service in circumstances
where
the employer, due to its business methodology, decided to declare
those positions internally within the employer itself redundant.

This is clearly similar to a situation where an employer wishes to
retain TES employees but retrenches permanent employees.
The
Court firstly held:
[8]
‘…
the
appellant was entitled to choose the manner in which it would run its
business provided that it did not change the terms and
conditions of
employment of the employees without their consent, and provided that,
if it contemplated the dismissal of the employees,
it complied with
its obligations provided for in s 189 of the Act.
’
Having
established this principle, the Court then said, with specific
reference to the operational circumstances of the employer
:
[9]
‘…
Du
Plessis had testified that, due to peaks and valleys, it made more
sense to use labour brokers because the appellant paid only
for cars
actually moved whereas, if the appellant used permanently
employed employees, it would be paying them per hour and
not per car
moved. In my judgment, even if it can be said that the appellant did
not prove 'peaks' and 'valleys', it was entitled
to prefer the use
of labour brokers and subcontractors to the use of permanently
employed workers because the former arrangement
gave it certain
benefits which the latter arrangement did not offer. Accordingly,
whether the peaks and valleys were proved is
neither here nor there.
The appellant was entitled to choose a way of doing business that was
less risky. The way of using labour
brokers and subcontractors was
less risky than the one of using permanent workers.’
[52]
A
similar approach was adopted in
National
Union of Metalworkers of SA and Others v John Thompson Africa
[10]
where the Court
said, of equal application
in
casu
:
‘
Furthermore,
the nature of the respondent's business was such that its labour
requirements fluctuated in quality and quantity. Labour
supplied via
a brokerage was therefore more efficient than having a workforce that
was fixed.
Outsourcing
certain work was more effective for the respondent. Mr Petersen's
proposition that the respondent would outsource
work whilst its
own employees stood idle, purely for the purposes of shrinking the
business to justify the ultimate retrenchment
of the employees is
improbable. The respondent existed to make a profit. If outsourcing
was not profitable it would have avoided
it.’
The
Court in
John
Thompson
then
concluded:
[11]
‘
I find that
there was a commercial rationale for the outsourcing of labour. The
respondent's use of labour brokers was therefore
not unfair.’
[53]
Similarly,
and in
Chester
Wholesale Meats (Pty) Ltd v National Industrial Workers Union of SA
and Others
[12]
the Court accepted
that the employer was entitled to use a labour broker for positions
that needed to be filled only as and when
required without this
rendering the retrenchment unfair.
[54]
In
the end, Smit’s explanation as to why it would be prudent to
use TES employees where it came to general labour was never

contradicted and as I have already said, made sound business sense.
The TES positions were temporary and served to cater
for a specific,
and legitimate, business need.  This cannot serve as a
legitimate basis upon which to contend that the dismissal
of the
individual applicants was not for a proper reason.  This ground
of substantive fairness raised by the applicants thus
cannot be
sustained.
[55]
Finally,
and as to the issue of vacancies in Building North in which the
individual applicants could simply be transferred, there
was no
evidence of this.  This was never suggested to Smit under cross
examination.  Considering that Building North
itself had gone
through a restructuring process at the same time, but had avoided
forced retrenchments on the basis of voluntary
retrenchments and
other forms of attrition, it is highly unlikely that there would be
any such vacancies.  In any event, the
applicants led no
evidence as to the existence of such vacancies.
[56]
I
thus conclude that the general question must be answered in favour of
the respondent.  There accordingly existed a proper
and fair
rationale for the retrenchment of the individual applicants.
Evaluation: The specific question
[57]
Where
it comes to the selection of employees for retrenchment, it was never
in issue that the selection criteria itself was unfair.
This
selection was conducted on the basis of LIFO applied to occupational
categories, both in Civils and in Plumbing.  The
applicants’
difficulty lies in the fact that this selection was not also applied
in Building North, on the basis of bumping,
where it came to
employees selected for retrenchment in Civils and Plumbing.  The
applicants, as part of the pre-trial process,
called for the lists of
employees with their occupations and starting dates in all the
divisions, and then conducted a like for
like comparison in respect
of all employees, across all divisions, referring to starting date
and occupation, as a basis of attack
on the selection.  The
applicants sought to show that there were employees who had lesser
service than the individual applicants
remaining in Building North,
in positions the individual applicants could competently fill.
[58]
It is
true that in the consultation process in Civils, the first applicant
had pertinently raised the issue of bumping across Building
North,
and when this was not agreed to, decided to leave the consultation
and cry unfairness.  Smit testified that the first
applicant was
provided with an explanation why bumping could not be applied across
Building North, but this was not accepted by
the first respondent.
It was however the subject matter of proper consultation.
[59]
The
explanation as to why bumping was not applied across Building North
has already to some extent been set out above.  But
what was
extensively explored with Smit under cross examination was movement
of employees between Civils and Building North.
It was
suggested to him that employees readily moved between these
divisions, which Smit pertinently disputed.  As touched
on
above, he in fact explained that where secondment between Building
North and Civils had been tried in the past, it did not work.
[60]
Smit
did concede that geographical location did not present a difficulty
to the respondent if employees were willing to relocate.
He
also conceded that the skills between the employees in Civils and
Building North were interchangeable where it came to certain

positions, in particular the positions of shutter hands.
[61]
It
was put to Smit that Lucky Mazibuko (‘Mazibuko’) would
say that he was a shutter hand that was employed in Civils,
but he
was used on a building project in Newtown.  Smit explained that
what happened in Newtown was that the contract was
a joint venture
between Building North and Civils, and that Civils employees still
remained Civils employees working on the Civils
component of that
project.
[62]
Where
it came to Plumbing employees, it was undisputed that Building North
did not employ plumbers or utilized skills associated
with plumbing,
and in fact utilised sub-contractors (including the Plumbing division
itself) for this purpose.  As such, there
were simply no
suitable positions into which plumbing employees could be bumped into
Building North.
[63]
Smit
also provided an explanation as to why vertical bumping would not be
feasible.  He gave the example that for a shutter
hand to do the
work of a general labourer would be such a reduction in status and
remuneration that it would never be accepted.
He added that in
such a situation, the shutter hand would then have to report to and
take instructions from other employees that
used to be on the same
level.  These explanations were never contradicted, and are in
my view proper explanations.  It
was suggested by Mazibuko in
giving evidence that employees would be prepared to consider lower
positions, but his evidence in
this regard was sketchy, and he in any
event could not speak for other individual employees.
[64]
Mazibuko
was the only witness that testified on behalf of the applicants as to
the merits of the matter.  Significantly, and
although he said
that he moved from site to site, this was always within the context
of contracts in Civils.  He then gave
a number of examples of
Civils employees being deployed on Building North projects.
This included the site manager that moved
from Civils on the Standard
Bank project which was a Building North project, and skilled
employees being transferred from Civils
to Building North for the
Newtown Junction project. The problem I have with the Standard Bank
example is that it was not put to
Smit under cross examination to
answer,
[13]
and thus he was not afforded an opportunity to deal with it in
evidence.  What was put to Smit was the Newtown project, and

this was explained on the basis as set out above and was not a
secondment at all.
[65]
Turning
then to the lists themselves, and even if LIFO is considered across
Civils and Building North divisions, there is not a
material
deviation from LIFO.  In the case of supervisors, there are two
individual examples of supervisors in Building North
that started
employment in 2014. Otherwise, all other supervisors in Building
North were more or less in the same realm of the
length of service of
those supervisors in Civils that were selected for retrenchment.
[66]
In
the case of concrete hands, only Civils employed this occupational
category of employee.  The application of LIFO affected
all
these employees in the employment starting date period between 2013
and 2009.  There were three individual employees not
selected in
sequence, but this was explained by Smit as being employees that were
still involved in projects to be completed and
were in fact
retrenched in a second round of retrenchments that followed in 2015.
[67]
Construction
hands selected for retrenchment were all in the 2012 and 2013
starting date of employment range, which is in line with
the shortest
serving comparable employees in Building North.  The same
consideration applies to shutter hands, with the applicable
starting
date period being between 2009 and 2013 and comparable to Building
North.
[68]
None
of the particular long serving shutter hands, concrete hands, or
construction hands, in Civils, with date of commencement of

employment prior to 2009, were selected for retrenchment.
[69]
In
argument for the first time, the applicants also conducted a
comparison with the employees in Roadworks, where it came to the

issue of bumping.  The difficulty I have with this is that this
was never part of the applicants’ case where it came
to
bumping.  It was not raised in the statement of case nor in the
pre-trial minute.  It was always, in short, an issue
between
Civils and Building North. Even in the retrenchment consultations,
the first applicant was only adamant that the retrenchment
process
should also be applied to Building North, and that bumping should be
applied in that division, with no reference being
made to Roadworks
at all. No evidence was presented that the skills of employees in
Civils was readily interchangeable with comparative
positions in
Roadworks or now these positions may in fact be comparable.  I
shall therefore not consider this issue.
[70]
Finally,
where it comes to Plumbing, it was the only division that employed
employees with plumbing skills, and none of these employees
were
readily transferrable into comparable positions within other
divisions.  It must also be considered that bumping was
never
raised in the retrenchment consultations of Plumbing.
[71]
It
must always be remembered that bumping is intended to protect long
serving employees against retrenchment. This is done by selecting

employees in comparable positions in other unaffected departments,
but with shorter service, for retrenchment, in place of the
long
serving employees in affected departments.  But because the
exercise of bumping is simply the application of the selection

criteria, it can be legitimately limited, provided the conducting of
selection always remains fair and objective.
[14]
In
Amalgamated
Workers Union of SA v Fedics Food Services
[15]
the Court
with approval to an article by Halton Cheadle
'Retrenchment:
The New Guide-lines
'
[16]
,
where the learned author said the following about bumping:
‘…
In
other words, should an employee with long service be made redundant
in one department he should be transferred to a similar post

elsewhere in the establishment, even though it may be occupied by an
employee with shorter service. Should there be no such post,
the
practice is to offer the longer-serving employee a less skilled
position occupied by employees with shorter service. This procedure

is graphically called ''bumping'. In short, one ''bumps' sideways and
down. The restriction of this principle to departments can
lead to
abuse. Long-serving employees can be transferred to departments where
redundancy is expected and thereby retrenched at
a later stage. Such
a practice would clearly subvert the objective application of the
principle
.'
[72]
The
Court in
General
Food Industries Ltd t/a Blue Ribbon Bakeries v Food and Allied
Workers Union and Others
[17]
applied bumping as
follows:
‘
What
was also established at the trial in this matter is that through
bumping the second and further respondents could have been

transferred to other bakeries to take jobs done by employees who had
shorter service periods than themselves but performing work
that the
second and further respondents could perform … I can see no
justification for an employer to retrench an employee
who has served
him loyally for, for example 20 years, and retain one who has been
employed for only a few months to perform work
that the one with a
longer service period can also perform. … On the contrary
allowing that approach in the absence of a
really sound reason or
explanation could lead to abuse. An employer who wants to get rid of
an employee (but lacks legitimate grounds
to do so) could transfer
such employee to a branch which he knows is likely to embark upon a
retrenchment exercise in due course
if he thought that such employee
would be a likely candidate for retrenchment in that branch on the
basis of LIFO which is applied
only to the affected branch. In that
way the employee could be selected for retrenchment at that branch
and be retrenched despite
the fact that in his old branch there are
employees who have shorter service periods than him who perform work
that he can perform.
…
’
[73]
Accordingly,
bumping is a relevant consideration where it comes to possibly
selecting long serving employees for retrenchment in
place of short
serving employees, and where it is necessary to apply selection
across departments or other unaffected business
areas / sections in
an employer so as to prevent such possible abuse.  As enunciated
in
Porter
Motor Group v Karachi
[18]
,
there are a number of principles applicable to the application of
bumping, summarized by the Court as follows:
‘…
In
determining a fair selection of employees for retrenchment bumping
has often been implemented and the following principles have

developed in relation thereto. This does not purport to be an
exhaustive list and merely catalogues the rules laid down which are

relevant to this case.
(1)
It
should be reiterated once again that fairness is not a one-way
street. It must accommodate both employer and employee. Section

189(2) of the Act requires both parties to attempt to reach consensus
on alternative measures to retrenchment, so there is a duty
on an
employee as well to raise bumping as an alternative. An employer is
obliged to consult with an employee about the possibility
of bumping.
(2)
Bumping
is situated within the 'last in first out' (LIFO) principle which is
itself rooted in fairness for well-established reasons.
Longer
serving employees have devoted a considerable part of their working
lives to the company and their experience and expertise
are an
invaluable asset. Their long service is an objective tribute to their
skills and industry and their avoidance of misconduct.
In the absence
of other factors, to be enumerated hereinafter, their service alone
is sufficient reason for them to remain and
others to be retrenched.
Fairness requires that their loyalty be rewarded.
(3)
The
nature of bumping depends on the circumstances of the case. A useful
distinction is that of dividing bumping into horizontal
and vertical
displacement. The former assumes similar status, conditions of
service and pay and the latter any diminution in them.
(4)
The
first principle is well established, namely that bumping should
always take place horizontally, before vertical displacement
is
resorted to. The bumping of an individual, in the absence of the
other relevant factors, seldom causes problems and the fact
of longer
service establishes the inherent fairness thereof. Vertical bumping
should only be resorted to where no suitable candidate
is available
for horizontal bumping. Where small numbers are involved the
implementation of horizontal or vertical bumping should
present few
problems.
(5)
Where
large-scale bumping, sometimes referred to as 'domino bumping',
necessitates vast dislocation, inconvenience and disruption,

consultation should be directed to achieving fairness to employees
while minimizing the disruption to the employer. Examples of

disruption include difficulties caused by different pay levels,
client or customer reaction to a replacement of employees and staff

incompatibility. In evaluating the competing interests of the
employer and the affected employees the consulting parties should

carry out a balancing exercise. Where minimal benefits accrue to
employees, while vast inconvenience is the lot of employers, fairness

requires that fewer employees should move.
(6)
There
will always be geographical limitations to bumping in that fairness
will require that limits be placed on how far an employee
is expected
to move to bump another. Although prejudice to the employer in
long-distance relocation cannot be excluded, in practice
this will be
rare. Generally speaking it is the employee who will suffer as a
result of being removed from a cultural and social
environment he or
she has become accustomed to. Second guessing the desires of
employees is undesirable; if they are happy to translocate
then
bumping should take place whatever the distances involved.
(7)
The
pool of possible candidates to be bumped should be established and
the circumference thereof will depend on the mobility and
status of
the employees involved. The managerial prerogative entails moving
employees to the best advantage of a company within
the parameters of
its activities, national or international; fairness requires that the
same circumference should define the limits
of potential candidates
to be bumped. The career path of the employee in the company will
often be a useful indication of scale
of mobility.
(8)
The
independence of departments as separate business entities may be
relevant but the argument that a company's departments are
managed
separately should be strictly scrutinized. Even if there is no past
practice of transferring between branches or departments,
the
employer must consider interdepartmental bumping unless it is
injurious to itself and to other employees.
(9)
Bumping
does not apply to employees in a different grade if the longer
serving employee cannot do the work of the employee with
shorter
service in that grade. This limitation applies most frequently where
competence, technical or professional knowledge or
experience and
specialised skills are involved. Where the necessity arises of
retraining those, who are transferred, this should
be carried out,
unless it places an unreasonable burden on the employer.
(10)
The
status of the post into which an employee is bumped is relevant, as
the employer's prerogative to choose someone of
managerial/supervisory
level should be respected. Management concerns
that downgrading an employee will be demoralizing will not justify a
decision not
to bump downwards where the employee is prepared to
accept downgrading. On the other hand the unwillingness of the
affected employee
to accept a lower wage may justify not bumping.
’
[74]
In
summing up, bumping is intended to protect long serving employees in
the case of a retrenchment exercise where there are other

departments, branches or business areas of the employer that may not
be affected by the restructuring that has employees in comparable

positions with substantially shorter service.  Especially in the
case of mass retrenchments, the purpose of bumping is not
to conduct
a post mortem of the selection conducted down to what can
colloquially be called the molecular level, long after the
fact, by
way of comparing lists of all employees in the employer so as to
establish which employee may possibly have slightly longer
service
than another and then calling it unfair. This kind of approach is not
conducive to the objective of protecting long serving
employees.
Using the example in
Blue
Ribbon Bakeries
,
bumping would be a relevant consideration where an affected employee
in one department has twenty years’ service, whilst
a
comparable employee in another and unaffected department has just
started work.  To describe it as simply as possible, it
must be
obviously unfair to retain one employee and retrench another because
of a significant discrepancy in length of service.
As said in
Porter
Motor Group
in the
dictum
quoted above, it must be a case of an employee that had
devoted
a considerable part of his or her working life to the employer, which
in itself would illustrate the value of such an  employee
and
would establish an ‘objective tribute’, in itself, to
that employee’s skills and experience.
[19]
[75]
As a
matter of common sense, bumping can also only find application if the
employee to be bumped into a position has the necessary
skills,
acumen and experience to fulfil the duties associated with that
position.  In other words, it must be a position the
employee is
objectively competent to fill.  It must also be remembered that
bumping only works horizontally and vertically
downwards.
Bumping upwards into a higher or promoted position is thus not a
valid consideration.
[76]
Despite
the above objective behind bumping, the application of this principle
may nonetheless be legitimately excluded in certain
circumstances.
This would be if a ‘sound reason’ is established for such
an exclusion, as said in
Blue
Ribbon Bakeries
.
Applying the
ratio
in
Porter
Motor Group
referred to above, this would be when:
76.1
There is substantial disruption and prejudice to the operations of an
employer if bumping is applied, which
scenario most often would arise
in the case of large scale bumping.  Whether disruption and
prejudice to operations would
be sufficient cause to exclude bumping
is a question of fact, and involves a weighing of the competing
interests.
76.2
There exists a geographical separation between departments or
divisions in an employer, to the extent that
bumping would be
impracticable and could lead to the incurring of undue additional
costs.  A relevant consideration in this
context is also whether
employees indeed express the wish to relocate.
76.3
There exists a proper and justified separation of an employers’
departments, divisions or operations.
Again, this is a question
of fact.  As said in
Porter
Motor Group
,
this separation must be carefully scrutinised in order to ascertain
whether it is legitimate, based on proper operational considerations,

and whether the employer itself has consistently treated such
department or divisions as if they were in reality distinct and
separate businesses, in all respects.  To illustrate by a simple
example, does the employer treat the department like a subsidiary
in
its own right with the employer’s central management
functioning like a holding company. Of course, the separation
consideration
is negated where the employer in reality readily
transfers, moves and deploys employees between departments or
divisions.
As said in
Blue
Ribbon Bakeries
:
[20]
‘…
The
contention by the appellant that each bakery was an independent
business unit with its own cost centre was no bar to the application

of bumping in that manner. On the appellant's own version there was
an established practice of transferring employees from one
bakery to
another …
’
[77]
Applying
all these considerations to the facts
in
casu
,
I am satisfied that the respondent has demonstrated a proper basis
for separating its Civils and Building North divisions.
This
separation is founded on a sound commercial rationale.  The
nature of the work performed in these divisions differs.
The
client base is not the same.  Each of these divisions is in
essence an independent operation, each with its own financials
and
management.  In the case of Civils and Building North, they are
even in different defined industries.  In fact, the
manner in
which the retrenchment exercises were conducted in this case
illustrates the very point.  It is not a case of one
division
conducting retrenchments whilst another division lies immune.
Building North, Civils and Plumbing all conducted
their own
retrenchment exercises at the same time, but separately, and with
separate management.  There was no indication
that this was some
kind of deliberate or clandestine design.  All the aforesaid
indicate the kind of separation that would
legitimately serve to
exclude bumping.
[78]
In
Mtshali
v Bell Equipment
[21]
the Court held:
‘
It
is clear from the authorities referred to above that bumping forms
part of LIFO as a method for selection of employees to be
retrenched.
It was therefore incumbent on the respondent to have consulted on its
application to determine whether its application
would have been
appropriate in the circumstances of this case. It was not for the
respondent to decide unilaterally that it would
not be appropriate to
apply bumping especially where it was not specifically prohibited in
the collective agreement. Reasons why
the respondent considered the
application of bumping inappropriate or unfair should have been
tabled for consideration by the consultation
parties before a final
decision could be taken
.’
Applying
this ratio
in casu
, this is exactly what the respondent did.
The respondent did not simply unilaterally decide not to apply
bumping.  It actually
discussed the issue with the first
applicant in the consultations in Civils and explained why bumping
would not be applied in Building
North. The first applicant made its
representations in this regard in the consultations, and in the end
the parties could not reach
consensus and the first applicant left
the consultations.
[79]
I
accept Smit’s testimony that employees of Civils were not
transferred or seconded to Building North.  There is no basis
to
gainsay what he said to the effect that it had been tried in the past
but was not workable. Nothing Mazibuko testified to was
sufficient to
contradict the evidence of Smit. The one example Mazibuko gave where
he was actually involved in was in the end no
transfer or secondment
at all, but a case of him remaining in Civils on a joint venture
project with Building North.  In the
end, what Mazibuko could
say was he transferred from site to site only in Civils itself.
I finally add that the lay-off policy
itself, relied on by the
applicants themselves, applied only within individual divisions, and
not across divisions. This all justifies,
as sound reasons, the
exclusion of bumping across Building North and Civils.
[80]
Whilst
it may be so that the skills of the various skilled employees in
Building North and Civils may be interchangeable and employees
in the
one division may competently fulfil comparable duties in the other,
it does not follow that bumping must apply for this
reason alone.
It is only one consideration, and is insufficient to outweigh all the
others.
[22]
[81]
Geographical
limitations are not a factor in this instance.  Mobility however
is.  Because of the nature of the client
base in Civils, it is
not a case of simply moving employees from one and onto another
site.  Induction and exit processes
and approvals apply. Even
Mazibuko conceded that such processes can take up to 2 weeks, whilst
Smit said it was longer, being 6
to 8 weeks. Whatever the case, there
is an impact on mobility, which must be considered.
[82]
Another
concern I have is that if bumping is applied across one division to
another, considering the number of employees involved,
the nature of
businesses in the various divisions, and the fact that these
businesses are in essence founded on projects that fluctuate
from
time to time, the kind of domino bumping may well result would be
unduly disruptive and unfair to the respondent and may well
make it
impossible to have a fair selection exercise.  Again, by way of
example, if a retrenchment is conducted due to a workload
reduction
in Civils, this could lead to selection in Building North (disrupting
a stable and existing contract there), and then
in turn dislodge
employees in Building North.  But that is only where bumping is
horizontal.  Then vertical bumping may
be considered, leading to
the same exploration starting all over again across the divisions to
try and place dislodged employees
in higher level occupational
categories that could do the work of lower level employees. This kind
of scenario is in my view not
palatable. In such circumstances, and
weighing all interests in the balance, it would be fair and justified
to limit selection
only to the affected division.
[83]
Finally,
this is simply not a case of needing to protect long serving
employees against possible abuse. None of the really long
serving
employees in Civils were selected for retrenchment. Whilst it may be
so that some employees in comparable occupations with
shorter service
remained employed in Building North, this discrepancy is not material
to the extent of crying out for intervention
and protection in order
to ensure that fair selection prevails.  I have elaborated on
this above.  After all, fairness
is an issue of balance, and has
to be what is fair to both parties.  Accordingly, there is no
need for bumping to apply,
in
casu
,
to counter abuse.
[84]
In
the circumstances, it is my view that the selection of the individual
applicants for retrenchment is not rendered unfair on the
basis of
the respondent declining to apply the principle of bumping. I am
satisfied that the respondent has demonstrated and proven
a ‘sound
reason’ for not applying bumping across the divisions of
Building North, Civils and Plumbing, on the basis
that these
divisions are in reality separate and independent businesses, and the
balancing of competing interests works in favour
of bumping not being
applied.  Further, the applicants have in any event not
demonstrated that there are employees with such
kind of long service
in Civils and Plumbing that requires the kind of protection afforded
by bumping. I find that the selection
of the individual employees for
retrenchment was thus fair, and the specific question must be
answered in favour of the respondent.
The
re-employment undertaking
[85]
The
re-employment undertaking relied on by the applicants was contained
in the letters of retrenchments of 13 November 2014 and
8 December
2014, respectively issued to Plumbing and Civils employees.  As
set out above, this was an undertaking to contact
a retrenched
employee if a suitable vacancy arose in 6 (six) months after date of
retrenchment. But significantly, the retrenchment
letters record that
an employee may be offered a position, and there is no guarantee of
being offered a position.
[86]
The
applicants contend that the list of TES employees engaged by Colven
and placed at the respondent, especially in January, February
and
March 2015, proves that there must have been vacancies that later
arose and the individual applicants were not contacted about
this,
thus resulting in a breach of the undertaking.  As said above,
this list applied to Building North.
[87]
Accepting
for a moment that such Building North vacancies should be offered to
retrenched Civils and Plumbing employees, and was
not, the
applicants’ case in this respect faces a fundamental
difficulty.  This difficulty is that the failure to comply
with
such an undertaking cannot serve to establish an unfair dismissal
based on operational requirements. The failure to re-employ
in terms
of an undertaking is not a case of a dismissal. It is actually an
unfair labour practice in terms of Section 186(2)(c)
[23]
of the LRA. In order to successfully rely on a failure to re-employ
in terms of such an undertaking, an employee would need to
prove that
this undertaking establishes an
agreement
that imposes an obligation on the employer to re-employ the employee,
which, in the case of a dismissal for operational
requirements, that
the employer must rehire the dismissed employee if and when a
‘suitable’ vacancy
arises.
As said in
Motor
Industry Staff Association and Another v Stanmar Motors (Pty) Ltd and
Others
[24]
:
‘…
It
is trite law that failure to re-employ when there is a formal binding
written agreement, amounts to an unfair labour practice,
in terms of
section 186(2)(C) of the LRA. (See
NAAWU
v Borg-Warner SA (Pty) Ltd
(1994) 15 ILJ 509 (A) at 519).The
onus
rests on the applicants to show that there is an obligation on the
employer to re-employ him.
’
[88]
It
is not for this Court to decide this kind of case. I cannot see how
the conduct of an employer in not complying with a re-employment

undertaking can render the retrenchment which gave rise to that very
undertaking in the first place, unfair.  It surely cannot
change
the issue of the rationale for retrenchment, the selection of an
employee for retrenchment, and the applying of a fair process
prior
to retrenchment, in any way.  Whether or not the employer
complied with a re-employment undertaking also involves completely

different considerations, which has nothing to do with the earlier
retrenchment, such as what the terms of the undertaking are,
whether
a suitable vacancy exists, whether or not it was complied with, and
if not, whether there was fair cause to depart from
it.  Insofar
as the judgment in
National
Union of Metalworkers of SA on behalf of Members v Timken SA (Pty)
Ltd
[25]
suggests
otherwise, it is my respectful view that this judgment is clearly
wrong and I shall not follow it.
[89]
If
the applicants wanted to legitimately pursue this issue, the
applicants needed to refer an unfair labour practice dispute to
the
CCMA for conciliation in the first place. Because the applicants
never pursued such a dispute to conciliation, it cannot be

entertained at adjudication stage.
[26]
Further, and in any event, this kind of dispute must be determined by
the CCMA by way of arbitration, and not adjudication
in this
Court.
[27]
I may add that the applicants have in any event failed to establish,
in evidence, the existence of any agreement as contemplated
by
Section 186(2)(c), as an undertaking to contact an employee coupled
with a stipulation that the employee ‘may’ be
offered a
position is not an agreement to re-employ.  As a result, this
part of the applicants’ case cannot succeed
and falls to be
rejected.
Procedural
fairness
[90]
As a
point of departure in deciding procedural fairness, it must be
remembered that in mass retrenchment dismissals, it was the
intention
of the legislature to clearly separate substantive and procedural
aspects of dismissals for operational requirements,
where it comes to
deciding the fairness of such dismissals.  In
Steenkamp
and Others v Edcon Ltd (National Union of Metalworkers of SA
intervening)
[28]
,
Zondo J (as he then was), and writing for the majority, held:
‘…
Section
189A also specifies the process for the adjudication of disputes. In
this regard it makes provision for the referral to
the Labour Court
for adjudication of a dispute about whether there is a fair reason
for dismissal. It makes provision for the route
of a strike and
lock-out for the resolution of a dispute. … In s 189A(13) the
LRA specifies special remedies for non-compliance
with a fair
procedure. All of that — including subsection (8) — is
about the right not to be unfairly dismissed which
the LRA creates in
s 185.
’
[91]
Section
189A (18) precludes
this
Court from adjudicating any dispute about the procedural fairness of
a dismissal for operational requirements referred for
adjudication in
terms of Sections 191(5)
(b)
(ii).
[29]
In
National
Union of Metalworkers of SA and Others v SA Five Engineering and
Others
[30]
the Court said:
‘
Disputes
about procedure in cases falling within the ambit of s 189A cannot be
referred to the Labour Court by statement of
claim, but must be
dealt with by means of motion proceedings as contemplated in s
189A(13), the exact scope of which I will return
to presently.
Suffice it now to say that the intention of s 189A(13), read with s
189A(18), is to exclude procedural issues from
the determination of
fairness where the employees have opted for adjudication rather
than industrial action, providing instead
for a mechanism to pre-empt
procedural problems before the substantive issues become ripe for
adjudication or industrial action.’
[92]
Thus,
the only manner in which procedural fairness can be challenged in the
case where Section 189A applies is by way of an application
in terms
of Section 189A(13) of the LRA.
[31]
In this regard, there is a specific objective underlying Section
189A(13), which must always remain at the forefront.
This
objective is a proactive intervention in the consultation process in
the case of mass retrenchments in order to ensure that
it is properly
done, in line with Sections 189 and 189A of the LRA, up front, so as
to save jobs.  In short, the idea behind
Section 189A(13) is
first and foremost to remedy.  As such, it is in reality an
urgent application that must be expeditiously
disposed of, whilst
remedying is still possible.  I
n
Insurance
and Banking Staff Association and Another v Old Mutual Services and
Technology Administration and Another
[32]
the Court dealt with the very idea behind Section 189A and said:
‘…
According
to the explanatory memorandum accompanying the 2002 amendments to the
LRA, s 189A was aimed at enhancing the effectiveness
of consultations
in large-scale retrenchments. … The overriding consideration
under s 189A is to correct and prevent procedurally
unfair
retrenchments as soon as procedural flaws are detected, so that job
losses can be avoided. Correcting a procedurally flawed
mass
retrenchment long after the process has been completed is often
economically prohibitive and practically impossible. All too
often
the changes in an enterprise with the passage of time deter
reinstatement as a remedy. So, the key elements of s 189A are:
early
expedited, effective intervention and job retention in mass
dismissals.
’
[93]
T
he
Court in
Banks
and Another v Coca-Cola SA — A Division of Coca-Cola Africa
(Pty) Ltd
[33]
made the following
valid and pertinent comments in this regard:
‘
In
short, the conclusion to be drawn from the wording of s 189A is that
this court appears to have been accorded a proactive and
supervisory
role in relation to the procedural obligations that attach to
operational requirements dismissals. Where the remedy
sought requires
intervention in the consultation process prior to dismissal, the
court ought necessarily to afford a remedy that
accounts for the
stage that the consultation has reached, the prospect of any joint
consensus-seeking engagement being resumed,
the attitude of both
parties , the nature and extent of the procedural shortcomings that
are alleged, and the like. ….
’
[94]
An
application in terms of Section 189A(13) is thus in essence an urgent
one that bypasses all the normal dispute resolution processes
for
unfair dismissal cases under the LRA and allows direct access to this
Court. In
Zero
Appliances (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[34]
the Court said:
‘
The
labour relations legislation makes specific provision for a special
dispute-resolution procedure in a case where a large number
of
employees participating in or affected by possible mass retrenchment
based on operational requirements feel that the employer
is not
adhering to a fair procedure. Section 189A (13) provides that
employees with such a grievance may directly approach the
Labour
Court by way of a formal application and seek a court order
compelling an offending employer, among others, to comply with
a fair
procedure. The benefits of this special dispute-referral procedure
are obvious. It obviates the conciliation procedure and
the
arbitration proceedings which characterize the ordinary
dispute-referral procedure as stipulated in s 191
Labour Relations
Act
66 of 1995
.
It affords the aggrieved employees direct and speedy access to the
Labour Court and accelerates the eradication of an employer's
labour
misdemeanours during the retrenchment process.’
[95]
As
touched on above, the possibility of effective proactive intervention
diminishes as time marches on. Preferably, this application
should
happen before the dismissal is effected or at least before the
consultation process is concluded.
In
National
Union of Metalworkers of SA on behalf of Members v General Motors of
SA (Pty) Ltd
[35]
the Court held:
‘…
where
an application is brought in terms of
s 189A
(13) after the
consultation process has been completed (as in the present case), it
is in most cases entirely inappropriate for
an applicant to use the
provisions of the subsection to seek relief compelling the employer
to comply with a fair procedure.’
Especially
where large scale measures have already been implemented in the
retrenchments, which if upset could cause a material
disruption and
prejudice to the employer’s operations, the remedies in
Section
189A(13)(a)
to (c) may very well not be appropriate.  As was
said in
Old
Mutual
:
[36]
‘
Thus,
if there is undue delay between the occurrence of the procedural flaw
… remedies under subsections (13)
(a)
to
(c)
would be inappropriate. Such remedies also become less appropriate
for an individual employee if it would have a domino disruptive

effect on the enterprise and other employees.’
[96]
In my
view, the very reason why it was necessary to distinguish between
substantive and procedural unfairness in the case of mass

retrenchments where
Section 189A
applies is to avoid a case of
scavenging, long after the fact, the carcass of a completed
retrenchment exercise to pick out individual
juicy pieces that may
serve to prove some failure in the process where it comes to
consulting on all the topics under
Section 189
, and claiming money as
a result. Such an approach helps no one where it comes to the very
idea behind urgent proactive intervention,
being the possibility to
save jobs and remedy defects before they become entrenched.
As
the Court held in
SA
Society of Bank Officials v Standard Bank of SA
[37]
:
‘
The
introduction of the
s 189A
procedure has a short-term preventative
aim of proactively fostering proper consultation, as opposed to a
long-term remedial one
of compensating employees, following a belated
'post-mortem' examination on what was wrong with the process, long
after workers
have been retrenched.’
[97]
In
the end, in the case of a retrenchment where
Section 189A
applies,
and where there has been no proactive intervention in terms of
Section 189A(13)
to remedy defects in the consultation process either
during or immediately after conclusion of the consultation process,
policy
considerations dictate that only the substantive fairness of
the retrenchment should remain a live issue for consideration in this

Court.
[98]
A
practice has however developed in this Court in terms of which the
consideration of procedural fairness is still introduced, by
way of a
back door so to speak, when a case of substantive fairness is decided
in this Court.  This is done by way of filing
a
Section 189A(13)
application, setting out in that application individual grounds of
procedural unfairness, and seeking compensation in terms of
Section
189A(13)(d).
This application is then not decided on its own,
but consolidated with a statement of claim challenging substantive
unfairness
under
Section 189A(8)(b)(ii)(bb)
, as read with
Sections
191(5)(b)(ii)
of the LRA.  That way, both substantive and
procedural unfairness is challenged, when challenging the fairness of
a mass retrenchment.
The matter
in
casu
is a case in point.
[99]
I
have a difficulty with this kind of approach. It circumvents what was
specifically intended with the separation of substantive
and
procedural unfairness in the case of mass retrenchments. It also
negates an essential component of the distinction drawn between

retrenchments under
Section 189
and
189A
of the LRA. Simply
described, what is the point of requiring proactive and expeditious
intervention in the case of possible procedural
failures, with the
view to saving jobs, if this very process is in reality simply used
to reserve procedural fairness challenges
to be raised later for the
purposes of claiming money? The fact is that
Section 189A(13)
is not
intended to be used as a basis for claiming compensation. I accept
that
Section 189A(13)(d)
does provide for compensation to be
awarded.  But it must always be considered when it is
appropriate to do so.  Zondo
J in
Edcon
dealt with this very consideration as follows:
[38]
‘
Subsection
(13)
(d)
provides that a consulting party may apply to the Labour Court for an
award of compensation 'if an order in terms of paragraphs
(a)
to
(c)
is not appropriate'. It seems to me that the phrase 'if an order in
terms of paragraphs
(a)
to
(c)
is not appropriate' constitutes a condition precedent that must exist
before the court may award compensation. The significance
of this
condition precedent is that its effect is that the Labour Court is
required to regard the orders provided for in subsection
(13)
(a)
to
(c)
as the preferred remedies in the sense that the Labour Court should
only consider the remedy in subsection (13)
(d)
when it is not appropriate to make any of the orders in subsection
(13)
(a)
to
(c).’
[100]
Similar
sentiments were expressed
in
Old Mutual
,
[39]
where the Court dealt with compensation claims in the context of
Section 189A(13)
, and held as follows:
‘…
an
award of compensation in motion proceedings is an extraordinary
remedy for which special circumstances must exist. Such special

circumstances can firstly be implied from subsection (13) itself. An
applicant must claim, as the primary relief, an order in terms
of
either para
(a)
,
(b)
or
(c)
.
Only if relief in terms of any those paragraphs is inappropriate can
compensation be claimed in terms of para
(d).
…’
[101]
Applying
the above, the applicants have in essence snookered themselves in
seeking to use their application in terms of
Section 189A(13)
to
claim compensation for procedural unfairness, as they have done in
the case before me.  The applicants have not made out
a case
that what they seek in terms of this application is to remedy the
defects in the process, so that proper consultation can
take place.
Also, the applicants continue to contend that the individual
applicants be reinstated, which means that what the Court
in
Edcon
called a pre-condition for an award of compensation to be appropriate
does not exist.  It is in any event not appropriate,
as I have
discussed above, to use
Section 189A(13)
to simply claim compensation
for procedural unfairness in trial proceedings brought to this Court
to challenge the substantive
fairness of the dismissal. For these
reasons alone, the application under
Section 189A(13)
must fail.
[102]
In
SA
Commercial Catering and Allied Workers Union and Others v Southern
Sun Hotel Interests (Pty) Ltd
[40]
the Court was
critical of the practice of bringing separate proceedings under
Sections 189A(13)
and
191
(5)(b)(ii), and then consolidating these
into one process at trial.  The Court held:
[41]
‘
Read
together with
s 189A
(13 ), it would appear that, in permitting H
employees to elect to seek the early, expedited and effective
intervention of the
Labour Court in procedural obligations that
attach to
s 189A
dismissals, the legislature has seen fit to exclude
employees from coupling these procedural claims with claims of
substantive
unfairness. The LRA provides for the adjudication of I
procedural claims by way of motion proceedings and claims of
substantive
unfairness by way of a separate trial.
To
my mind, consolidating unfair dismissal claims raised separately in
respect of procedural and substantive unfairness, on the
face of it,
goes against the grain of
s 189A
as a whole and against the plain
wording of
s 189A
(18) in particular …
’
The
Court concluded:
[42]
‘
To
the extent that the court has permitted consolidations of this nature
previously, I respectfully differ with those approaches.
…
I
thus find that consolidation or any other co-hearing of the
procedural issues raised in the applicants's 189A (13) application

together with the applicants'
s 191(5)
(b)
(ii)
referral is impermissible in terms of the LRA.
’
[103]
I
consider the aforesaid reasoning in
Southern
Sun Hotel Interests
compelling
and I am in agreement with same. It is fully in line with what I have
said above.  In summary, the applicants’
application in
terms of
Section 189A(13)
to claim compensation for procedural
unfairness along with the applicants’ challenge of substantive
fairness is not competent,
or permissible.
Section 189A(13)
was never
intended to be utilized in such a fashion, which can only serve to
negate the primary objective of proactive intervention
to remedy
procedural unfairness at the outset.
[104]
However,
and even if I consider the merits of the applicants’
Section
189A(13)
application, it faces problems. In presenting the case of
procedural unfairness of the applicants in Court, and as set out
above,
the applicants relied on two issues, the first being alleged
non-compliance with
Section 189A(8)
of the LRA, and the second being
that the
Section 189(3)
notice where it came to the labourers in
Civils was defective and that they were not properly consulted as a
result.  I will
deal with the latter contention first, in the
next paragraph.
[105]
Whilst
I must confess that when this matter was presented and argued in
Court, I did consider that on the evidence, the applicants
may have
made out a case for procedural unfairness where it came to the
labourers as a result of the fact that the
Section 189(3)
notice did
not refer to them, and it appeared they were not properly consulted
as a result. But even if this is true, the applicants
face an
insurmountable obstacle. This obstacle is that such a case was never
pleaded or made out in the applicants’ founding
affidavit in
their
Section 189A(13)
application. As I have dealt with above, the
proceedings under
Section 189A(13)
relating to procedural unfairness
is an application with a founding affidavit, and it is trite that an
applicant must make out
a case in the founding affidavit.
[43]
The only issue the applicants raised in the founding affidavit was
that the dismissal of the individual applicants was unlawful
for want
of compliance with
section 189A(8).
The applicants are bound to
this case and simply cannot be allowed to pursue a case not
pleaded.
[44]
In the end, as held in
Knox
D’Arcy AG and another v Land and Agricultural Development Bank
of South Africa
[45]
:
‘
It
is trite that litigants must plead material facts relied upon as a
basis for the relief sought and define the issues in their
pleadings
to enable the parties to the action to know what case they have to
meet. And a party may not plead one issue and then
at the trial, …
attempt to canvass another which was not put in issue …’
[106]
Accordingly,
it is not open for me to decide the procedural fairness of the
applicants’ dismissal based on defects in the
Section 189(3)
notice and lack of proper consultation, where it came to the
labourers in Civils, even if I did believe there may have been some

substance in the case.  For these reasons, this ground of
procedural unfairness must be rejected.
[107]
Turning
then to the issue of non-compliance with
Section 189A(8)
, this is in
reality what the crux of the applicants’ case on procedural
unfairness was.
[46]
I appreciate that when the applicants brought this application, the
judgments of the Labour Appeal Court in
Edcon
v Steenkamp and Others
[47]
,
and the
Constitutional Court in
Edcon
[48]
had not yet been delivered, and the concept of an unlawful dismissal
for want of compliance with the provisions of
Section 189A
was still
very much a live issue.
[49]
However, and following the judgment of the Constitutional Court in
Edcon
,
this is no longer a valid consideration, as the Court made it clear
that the LRA does not provide for nor contemplate an unlawful

dismissal.  Zondo J held:
[50]
‘
I
conclude that invalid dismissals and a declaratory order that a
dismissal is invalid and of no force and effect fall outside the

contemplation of the LRA. Such an order cannot be granted in a case
based on the breach of an obligation under the LRA concerning
a
dismissal.
’
And
then in dealing specifically with
Section 189A(8)
, the learned Judge
said:
[51]
‘
Having
regard to the purpose of the LRA in general, the purpose of
s 189A
,
the purpose of
s 189A(8)
and the provisions of
s 189A(8)
(a)
and of 189A(13) in particular, and other factors, there is no
sufficient basis for the proposition that the purpose of the LRA
is
that the consequence of a breach of
s 189A(8)
is the nullity of the
act done contrary thereto.
’
[108]
Because
the applicants’
Section 189A(13)
case was squarely founded on
an unlawful dismissal, which case is clearly no longer valid, the
applicants then sought to in effect
convert this case to one of
procedural unfairness based on the very same contention. In simple
terms, the applicants say that non-compliance
with
Section 189A(8)
,
even if it does not render the dismissal unlawful, would still render
the dismissal
per
se
procedurally unfair. I cannot agree with such a case, based on the
following ratio of Zondo J in
Edcon
:
[52]
‘
The
LRA spells out the consequences of an employer's breach of the
procedural requirements of
s 189A(8)
both in
s 189A(9)
, which is the
strike route, and in subsection (13). That the subsection (13) orders
are consequences of non-compliance with the
procedural requirements
is made clear when subsection (13) refers to 'non-compliance with a
fair procedure'. That phrase is a reference
to the procedure set out
in
s 189A.
If the provisions that cover the 'fair procedure' referred
to in subsection (13) include the procedural requirements of
subsection
(8), then logically that would lead to the conclusion that
the subsection (13) orders represent the consequences of
non-compliance
with subsection (8).
’
[109]
In
the end, therefore, even when
Section 189A
applies, what must be
considered is overall procedural fairness, which entails an enquiry
into whether there was proper and fair
consultation on all the
consultation topics as envisaged by
Section 189
of the LRA.
[53]
Where the procedural prescripts relating to time limits in
Section
189A(8)
, or for that matter
Section 189A(7)
where there is a
facilitator, are not complied with, procedural unfairness would only
follow if it can be established that this
non-compliance had the
effect that the consultation topics in
Section 189
had not been
properly and fairly dealt with in consultations, and that as a
result, holistically speaking, there was a material
failure of
procedural fairness.  As said in
Communication
Workers Union v Telkom SA SOC Ltd and Others
[54]
:
‘
A
final consideration is the nature of the alleged procedural defect or
flaw. It is not every minimal procedural failure that will
attract
the application of the remedies in
s 189A(13)
(a)
to
(c).
The failure must be material, to the extent that it can be said that
a fair consultation on one of the consultation topics in
s 189(2)
is
absent. A simple example would be where there is no consultation on
the basis of selection of employees to be retrenched, and
the
employer simply unilaterally applies its own criteria. …
’
[110]
I
will illustrate by way of examples.  If retrenchment
consultations are held between an employer and a trade union (or
employees)
over a period of two weeks, and in this period proper
consensus is achieved on all the consultation topics in
Section 189
,
then why should the employer simply wait for a further six weeks to
pass just to be able to effect retrenchments, just because
there is
such a time period in
Section 189A(7)
or (8).  Similarly, and if
all the consultations topics have been fully ventilated and the
parties have come to the point
of agreeing to disagree, there is no
reason to just wait out a time period. I accept that the time period
in
Section 189A(7)
and (8) have been created so as to establish what
Zondo J in
Edcon
[55]
called a ‘dismissal free period’. That will enable the
parties to at least be committed to consult for that period.
But once
the objectives of consultation have been achieved, then the dismissal
free period should fall away, as there is simply
no point to it.
[111]
If
the trade union or the employee parties believe that the failure of
the employer to comply with the time period as prescribed
in
Section
189A(7)
and (8) has the result of prejudicing proper consultation,
then that scenario is exactly what
Section 189A(13)
is there for. The
Section 189A(13)
application is then brought as one of urgency to
compel the employer to continue with consultations until such time as
there has
proper compliance with the consultation objectives as
envisaged by
Section 189
, and this Court is certainly empowered to
grant such relief.
[56]
But it simply cannot be said that just because the time period in
Section 189A(7)
or (8) has not been complied with, procedural
unfairness
per
se
exists.
[112]
This
brings me back to the applicants’ case.  It is
unfortunately a case to the effect that non-compliance with the time

period in
Section 189A(8)
is
per
se
unfair. This case has no substance, in the absence of any further
case made out that the consultations topics as contemplated by
Section 189
have not been properly and fairly dealt within the
consultations. With no such further case made out, that has to be the
end of
it where it comes to this alleged ground of procedural
unfairness.
[113]
For
the sake of being complete, however, I in any event do not believe
that the respondent had failed to comply with
Section 189A(8).
In my view, there is no necessity created by
Section 189A(8)
for the
respondent to first refer the matter to the CCMA before being able to
effect a termination of employment under that Section.
This argument
of the applicants is in essence based on the
ratio
of the judgments in
De
Beers
and
Revan
,
which have now been overturned by
Edcon
.
In my view, Zondo J in
Edcon
[57]
made it clear that the reference to a referral to the CCMA in
Section
189A(8)
is nothing more than providing a formula to calculate a time
period for the dismissal free period, where the learned Judge said:
‘…
In
terms of subsection (8) a period of at least 30 days must elapse from
the date of the giving of the
s 189(3)
notice before a party may
refer a dispute to a council or the CCMA. A referral of a dispute
before the expiry of that period would
be a breach of the provision.
Once the period of 30 days has elapsed, the employer must also wait
for the periods referred to in
s 64(1)
(a)
to elapse before it may give the employees dismissal notices. If the
employer were to give employees dismissal notices prior to
the expiry
of those periods, that would be a breach of subsection (8)
(a).
’
Simply
put, and practically considered,
Section 189A(8)
it is just a
roundabout way of defining a period of 60 (sixty) days, similar to
the 60 (sixty) day period in
Section 189A(7)
where facilitation is
involved.
[114]
In
the case of Civils, the
Section 189(3)
notice was given on 15 July
2014.  The dismissal notice followed on 8 December 2014. This is
long after the expiry of the
60 day time period, and thus there is
compliance. It is true that in Plumbing, the
Section 189(3)
notice
was given on 23 October 2014, and the dismissal notice followed on 13
November 2014.  Even though the 60 day time period
was not
complied with, all the consultation topics were fully canvassed and
exhausted, to the extent that the first applicant accepted
that
retrenchments were inevitable.  Overall, it is my view that
Section 189A(8)
was not contravened.
[115]
In
sum therefore, and for all the reasons as set out above, the
applicants’
Section 189A(13)
application has no substance, and
must fail. This application accordingly falls to be dismissed, and
that must be the end of the
applicants’ case of procedural
unfairness.
Conclusion
[116]
In
conclusion, I hold that the dismissal of the individual applicants by
the respondent for operational requirements is substantively
fair,
both in terms of the general question and the specific question as
articulated in
Latex
.
[58]
The applicants’ unfair dismissal claim brought by way of their
statement of claim dated 16 September 2015 under case
number JS 620 /
15 thus falls to be dismissed. Further, the applicants have failed to
make out a case of procedural unfairness
in terms of the application
under
Section 189A(13)
also dated 16 September 2015 brought under
case number J 1687 / 15, and this application equally falls to be
dismissed.
[117]
As to
costs, I do not consider that the applicants have acted unreasonably
in seeking to pursue their matter. I also consider that
there is an
ongoing relationship between NUM and the respondent. Mass
retrenchments are always trying on the relationship between

employees, trade unions and employers, and there is no need to put
further pressure on this relationship by way of costs orders.
One
must also consider that employees lost their jobs due to no fault of
their own, and they should feel free to approach this
Court to
scrutinize whether all that happened was in order, and fair. It is my
view that despite the fact that the applicants were
unsuccessful, a
costs order against them is unjustified. In terms of my wide
discretion under
Section 162
of the LRA, I consider it fair and
appropriate that no order as to costs should be made in this matter.
Order
[118]
For
all of the reasons as set out above, I make the following order:
1.
The
dismissal of the second to further applicants by the respondent was
substantively fair.
2.
The
applicants’ referral under case number JS 620 / 15 is
consequently dismissed.
3.
The
applicants’
Section 189A(13)
application under case number J
1687 / 15 is dismissed.
4.
There
is no order as to costs.
_____________________
S Snyman
Acting
Judge of the Labour Court
Appearances:
For the
Applicants:

Mr R Daniels of Cheadle, Thompson & Haysom Attorneys
For the
Respondent:

Advocate T Bruinders SC
Instructed
by:

Fluxmans Inc Attorneys
[1]
Labour Relations Act 66 of 1995
.
[2]
Reads
a)
An
application in terms of subsection (13) must be brought not later
than 30 days after the employer has given notice to terminate
the
employee's
services or, if notice is not given, the date on which the
employees
are dismissed
. See
[3]
(2006)
27 ILJ 292 (LAC) at para 55.
[4]
(2000)
21 ILJ 129 (LAC) at para 36.
[5]
See
SA
Clothing and Textile Workers Union and Others v Discreto   A
Division of Trump and Springbok Holdings
(1998)
19 ILJ 1451 (LAC) at para 8;
Kotze
(
supra
)
at para 39.
[6]
See
Porter
Motor Group v Karachi
(2002)
23 ILJ 348 (LAC) at para 16;
General
Food Industries Ltd t/a Blue Ribbon Bakeries v Food and Allied
Workers Union and Others
(2004) 25 ILJ 1655 (LAC) at para 25.
[7]
(2006)
27 ILJ 2537 (LAC).
[8]
Id at para 39.
[9]
Id at para 34.
[10]
(2002)
23 ILJ 1839 (LC) at paras 304 – 305.
[11]
Id at para 310.
[12]
(2006)
27 ILJ 915 (LAC) at paras 16 and 17.  .
[13]
This
means that this evidence should be rejected – see
ABSA
Brokers (Pty) Ltd v Moshoana NO and Others
(2005)
26
ILJ
1652
(LAC) at para 39;
Trio
Glass t/a The Glass Group v Molapo NO and Others
(2013)
34
ILJ
2662 (LC) at para 41.
[14]
Section
189(7)
reads: ‘The employer must select the employees to be
dismissed according to selection criteria- …(b) if no
criteria
have been agreed, criteria that are fair and objective.’
[15]
(1999)
20 ILJ 602 (LC) at paras 3 – 4.
[16]
(1985)
6 ILJ 127
at 137.
[17]
(2004)
25 ILJ 1655 (LAC)
at para 36.
[18]
(2002)
23 ILJ 348 (LAC) at para 16.  See also
Mtshali
v Bell Equipment
[2017] JOL 38221
(LAC) at para 22;
Motor
Industry Staff Association and Another v Autozone Grahamstown
[2016] ZALCJHB 204 (3 June 2016) at para 70.
[19]
See
National
Union of Metalworkers of South Africa and others v Beta Engineering
(1969)
[2016]
JOL 35829
(LC) at para 87.
[20]
(
supra
)
at para 36.
[21]
[2017]
JOL 38221
(LAC) at para 30.
[22]
Compare
NACBAWU
Obo Nhavene and Others v Extra Dimensions 1158 (Pty) Ltd
[2014]
ZALCJHB 502 (9 December 2014) at para 38.
[23]
The Section reads: ‘
'Unfair
labour practice'
means
any unfair act or omission that arises between an employer and an
employee involving … a failure or refusal by an
employer to
re-instate or re-employ a former employee in terms of any
agreement.’
[24]
[2016]
JOL 35712
(LC) at para 32.  See also
South
African Police Services v Smit and Others
[2016] ZALAC 22
(21 January 2016) at para 53;
Mangaung
Metro Municipality v SAMWU obo Senoko and Others
[2015] ZALCJHB 274 (27 August 2015) at para 11.
[25]
(2009)
30 ILJ 2124 (LC) at paras 38 – 42.
[26]
National
Union of Metalworkers of SA v Intervalve (Pty) Ltd and Others
(2015)
36 ILJ 363 (CC) at para 137.
[27]
See 191(5)
(a)
which reads: ‘…
the
council or the Commission must arbitrate the dispute at the request
of the employee if- (iv) the dispute concerns an
unfair labour
practice …’
[28]
(2016)
37 ILJ 564 (CC) at para 131
[29]
Section
189A(18)
reads: ‘The Labour Court may not adjudicate a dispute
about the procedural fairness of a dismissal based on the employer's

operational requirements in any dispute referred to it in terms of
section 191
(5) (b) (ii)
’
.
See also
Edcon
(
supra
)
at paras 157 – 158.
[30]
(2004)
25 ILJ 2358 (LC) at 2361I-2362B.  See also
Chemical
Energy Paper Printing Wood and Allied Workers Union on behalf of
Hlophe and Others v Bayfibre Central Co-Operative Ltd
(2017)
38 ILJ 627 (LC) 20;
Perumal
and Another v Tiger Brands
(2007)
28 ILJ 2302 (LC) at para 19;
Thomas
v Fidelity Corporate Services (Pty) Ltd
(2007)
28 ILJ 424 (LC) at para 8.
[31]
The
Section reads: ‘'If an employer does not comply with a fair
procedure, a consulting party may approach the Labour Court
by way
of an application for an order – (a) compelling the
employer to comply with a fair procedure; (b) interdicting
or
restraining the employer from dismissing an employee H prior to
complying with a fair procedure; (c) directing the employer
to
reinstate an employee until it has complied with a fair procedure;
(d) make an award of compensation, if an order in
terms of
paragraphs (a) to (c) is not appropriate.’
[32]
(2006)
27 ILJ 1026 (LC)
at para 9.
[33]
(2007)
28
ILJ
2748 (LC)
at para 18.  See also
Association
of Mineworkers and Construction Union and Others v Shanduka Coal
(Pty) Ltd
(2013)
34 ILJ 1519 (LC) at para 27;
National
Union of Metalworkers of SA on behalf of Members v General Motors of
SA (Pty) Ltd
(2009)
30 ILJ 1861 (LC) at para 35;
Zero
Appliances (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2007)
28 ILJ 1836 (LC) at para 23.
[34]
(2007)
28 ILJ 1836 (LC) at para 23.
[35]
(2009)
30 ILJ 1861 (LC) at para 47.  See also
National
Union of Metalworkers of SA and Others v Shakespear Shopfitters
(Pty) Ltd
(2008)
29 ILJ 1960 (LC) at para 9.
[36]
(
supra
)
at para 13.
[37]
(2011) 32 ILJ 1236 (LC) at para 29.
[38]
(
supra
)
at para 162.
[39]
(
supra
)
at para 14.
[40]
(2017)
38 ILJ 463 (LC).
[41]
Id at paras 19 – 20.
[42]
Id at paras 29 – 30.
[43]
See
Betlane
v Shelly Court CC
2011
(1) SA 388
(CC)
para
29; see also
Van
der Merwe and Another v Taylor NO and Others
2008
(1) SA 1
(CC)
para
122;
President
of the Republic of SA and Others v SA Rugby Football Union and
Others
2000
(1) SA 1
(CC)
para
150;
National
Council of Societies for the Prevention of Cruelty to Animals v
Openshaw
[2008] ZASCA 78
;
2008
(5) SA 339
(SCA)
paras
29-30.
[44]
See
Imprefed
(Pty) Ltd v National Transport Commission
[1993]
2 All SA 179
(A) at 188-189.
[45]
[2013]
3 All SA 404
(SCA) at para 35.  See also
Naidoo
v Minister of Police and Others
[2015]
4 All SA 609
(SCA) at para 30;
Minister
of Safety and Security v Slabbert
[2010] 2 All SA 474
(SCA) at para 11;
Smith
v Kit Kat Group (Pty) Ltd
(2017) 38 ILJ 483 (LC) at para 67.
[46]
Section
189A(8)
reads: ‘If a facilitator is not appointed- (a) a
party may not refer a dispute to a council or the Commission unless

a period of 30 days has lapsed from the date on which notice was
given in terms of
section 189
(3); and (b)once the periods mentioned
in
section 64
(1) (a) have elapsed- (i) the employer may give
notice to terminate the contracts of employment in accordance with
section
37 (1) of the Basic Conditions of Employment Act …’
[47]
(2015)
36 ILJ 1469 (LAC).
[48]
(
supra
)
footnote 28.
[49]
See
Revan
Civil Engineering Contractors and Others v
National
Union of Mineworkers and Others
(2012) 33 ILJ 1846 (LAC);
De
Beers Group Services (Pty) Ltd v National Union of Mineworkers
(2011) 32 ILJ 1293 (LAC)
.
Both these judgments have now been overturned.
[50]
(
supra
)
at para 136.
[51]
Id at para 186.
[52]
Id
at para 135.
[53]
These are, in terms of Section 189(2): ‘(a) appropriate
measures- (i) to avoid the dismissals; (ii) to minimise

the number of dismissals; (iii) to change the timing of
the dismissals; and (iv) to mitigate the adverse effects
of the
dismissals; (b) the method for selecting the employees to be
dismissed; and (c) the severance pay for dismissed
employees’.
[54]
(2017)
38 ILJ 360 (LC) at para 43. See also
National
Union of Mineworkers v Anglo American Platinum Ltd and Another
(2014)
35
ILJ
1024 (LC)
at
para
25
;
Retail
and Associated Workers Union of SA v Schuurman Metal Pressing (Pty)
Ltd
(2004)
25
ILJ
2376 (LC)
at
para
32
;
Old
Mutual
(
supra
)
at para 13;
Banks
(
supra
)
at para 15.
[55]
(
supra
)
at para 98.
[56]
See
Edcon
(
supra
)
at paras 160 – 161
[57]
(
supra
)
at para 151.
[58]
(
supra
)
footnote 3.