About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 513
|
|
National Union of Metalworkers of South Africa (NUMSA) obo Members v Aveng Trident Steel (A division of Aveng Africa) (Pty) Ltd and Another (JS596/15) [2017] ZALCJHB 513; [2018] 5 BLLR 500 (LC); (2018) 39 ILJ 1625 (LC) (13 December 2017)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Reportable
case
no:
JS596/15
In
the matter between:
NATIONAL
UNION OF METALWORKERS
OF
SOUTH AFRICA (NUMSA) OBO
MEMBERS
LISTED IN ANNEXURE A
First and Second
Applicants
and
AVENG
TRIDENT STEEL (A DIVISION OF AVENG
AFRICA)
(PTY)
LTD First
Respondent
IMPERIAL
DEDICATED CONTRACTS (A DIVISION
OF
IMPERIAL LOGISTICS SOUTH AFRICA) (PTY) LTD Second
Respondent
Heard
:
20-21 February 2017 (Before Barnes AJ) and 27,
28 and 30 November 2017 (Before Me)
Delivered
:
13 December
2017
Summary:
A referral in terms of which the second applicants allege that
they were automatically unfairly dismissed. An employee who alleges
automatically unfair dismissal is required to produce credible
evidence showing that he or she has been subjected to an
automatically
unfair dismissal. Ordinarily, the employer is the one
knowing the reason why it dismissed an employee. In
casu
,
the first respondent states that it dismissed the second applicants
for operational reasons. The second applicants on the other
hand
allege that the
true reason
for their
dismissal is that because they refused to accept a demand of the
first respondent for them to accept new contracts, thus
automatically
unfairly dismissed within the contemplation of section 187(1)(c) as
amended. An employee must produce credible evidence
showing that he
or she has been subjected to an automatically unfair dismissal before
an employer is behoved to show that the dismissal
is not for a
prohibited reason. The amended section 187(1) (c) interpreted and
applied. The principles in
Fry’s Metals
and
Algorax
has not gone to waste.
Held: (1)
The second applicants were not automatically unfairly dismissed.
Held: (2) The dismissal of the second applicants is substantively
fair. Held: (3) Each party to pay its own costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
This is a referral in terms of
section 191 of the Labour Relations Act
[1]
(LRA). The second applicants allege that the first respondent
subjected them to an automatically unfair dismissal within the
contemplation
of section 187 (1) (c) of the LRA as amended. In the
alternative, the second applicants allege that the dismissal was
substantively
unfair. On the other hand, the first respondent
disputes that the second applicants were subjected to an
automatically unfair dismissal.
Instead, the respondent contends that
the second applicants were dismissed for its operational
requirements. Initially, the matter
was allocated to Acting Justice
Barnes. She heard the evidence of one witness. After that an
application for her recusal was launched
which she granted.
Whereafter the matter came before me. I was furnished with the
transcript of the evidence tendered up to that
stage. By agreement
between the parties I did not have to hear the matter
de
novo
.
Background
facts
[2]
The essential facts are as follows: The Company operates in the steel
industry. In mid-2014, it faced a harsh economic environment
in which
it experienced a marked decline in its sales volumes and an increase
in its cost base, leading to a sharp decline in profitability.
The
Company decided that it could not continue with its existing business
model and would have to restructure its operations in
order to
survive. To this end it proposed reviewing its organisational
structures and redefining some of its job descriptions.
[3]
At the outset of the
consultation process it presented a business case to the Union along
these lines. The Union did not contest
the need to retrench nor the
principle that restructuring was an appropriate response to the
predicament the Company found itself
in. However, in an attempt to
avoid retrenchment altogether or at least to mitigate the potential
consequences of a need to retrench,
the Company and the NUMSA ( the
Union) agreed, firstly, that employees would be offered voluntary
severance packages, and secondly
that employees engaged on the
so-called LDCs
[2]
would have their contracts terminated. In the result, some 500 odd
VSPs / LDCs
[3]
left the Company’s employ during 2015, dramatically reducing
the numbers of employees who then potentially faced retrenchment.
[4] In
mid-October 2014, the parties also struck an interim agreement in
terms whereof the employees agreed to work in accordance
with the
Company’s redesigned job descriptions pending the finalisation
of consultations. In the event, employees worked
under the proposed
new structure for a period of six months, from October to April 2015.
When the consultation process ended without
consensus, the Company
gave notice that the individual applicants faced retrenchment since
their old positions no longer existed
in the new structure.
[5]
However, in an attempt to avoid retrenchment, the Company offered
each and every employee alternative employment in posts
in the
new structure. 71 employees accepted the offer. The remainder (the
individual applicants numbering 733) declined the offer
and were
therefor retrenched.
[6] A
large number of the individual applicants had already worked under
the proposed new regime for six months; they had the skills
to do so
and they carried out their tasks without difficulty; they would be no
worse off financially if they took the offer; and
their length of
service would have remained unaffected.
[7] From
the beginning of the consultation process, the Union was anxious to
ensure that the Company released the VSPs and the LDC
personnel as
soon as possible, before it would engage on the remaining issues in
the consultation process. Once those employees
left, and once the
Union had procured agreement on the transportation issue, then
suddenly, out of the blue, on a weekend’s
notice, it reneged on
the interim agreement before its expiry date, leaving the Company
entirely at the Union’s mercy.
[8]
By this device it extracted an
increase in the agreed increment payable to employees performing
additional duties under the interim
agreement. Because it had been
held to ransom, the Company was constrained to grant an increase from
60c to R3. Secondly, the Union
never contested the need to
restructure and it never engaged the Company on the content of the
redesigned job descriptions even
though it had months to consider
them. It recognised the need to restructure and that the job
descriptions had to be redesigned
for this purpose. Instead, it
proposed its own alternative solution, namely moving from the
Thirteen Grade Structure under the
Main Agreement
[4]
to a Five Grade Structure. However, instead of consulting
bona
fide
on its proposal, the
Union attempted to convert the consultation process into wage
negotiations. When the Union found out that
the minimum wage rates
under the Five Grade Structure were in some cases lower than those
under the existing Thirteen Grade Structure
(albeit that the
employees would retain their wage rates if they were higher than
those in the Five Grade Structure), it changed
tack.
[9]
Instead of consulting on the proposed Five Grade Structure, the Union
demanded an increase in members’ pay, this in the
context of a
retrenchment consultation process where the Company’s whole
objective was to save costs in order to ensure its
survival.
[10]
Only the respondents led evidence before me. The
applicants closed their case before opening it. It is not necessary
for the purposes
of this judgment to recount the evidence
punctiliously.
Evidence
Led
[11]
The Company presented detailed evidence through its Chief Operating
Officer, Mr Deshan Moodley (Moodley). None of his evidence
was
seriously contested. Moodley has 25 years’ experience in the
steel industry and was well-placed to highlight the critical
situation which the Company found itself in during 2014 and which
indeed still endures today.
[12]
Moodley testified in summary as follows: The steel industry was in
decline from the time of the 2010 World Cup. The Company’s
sales volumes dropped by twenty percent (20%) and its costs structure
could not be sustained by its income. The decline in sales
volumes
and increases in costs are reflected in the business case document in
the tables at
B p. 9
. From these graphs, one can see that in
2014 there was a 60 000 tonne drop in sales in a six-month
period which equates to
a 20% decline overall. Before that, the
market had become fragmented and steel merchants were competing for
volume. As a consequence,
trading margins dropped. Even today the
industry has not improved and volumes are still low. Volumes are
driven by Government spending
but there has been none of the promised
investment by the Government in infrastructure projects.
[13]
The tables at
B p. 10
demonstrate the decline in the Company’s
profitability and sales volume. In order to keep the same profit
margin, the Company
had to reduce costs. However, costs had
increased, especially labour, fuel and transport costs. As a
consequence of all of this,
the Company became unprofitable, as is
still the case. Thus in 2014, the Company came to the realisation
that its existing assumptions
regarding profit margins were no longer
correct, that its cost structure was out of kilter with its income,
and that in order to
survive it had to restructure.
Proposed
restructuring: rationale
[14]
In its business case presentation at
B p. 12 and ff
the
Company indicated that it’s operational and support structures
had to be reviewed to ensure that the business was streamlined
and
resources were optimised for the then current market position. This
involved reviewing the Company’s organisational structures
and
redefining some of its job descriptions (
B p. 13
).
[15]
With the drop in sales volumes, machines were under-utilised. The
Company had therefore to align production output with the
market. In
addition, the Company had to reorganise its workforce to align
working conditions with the market. However, a reduction
in the
number of positions was not enough. The Company needed to achieve an
improvement in productivity as well.
[16]
In this regard, the Company was faced with a critically debilitating
historical situation, namely, that over time, employees
had performed
only the tasks that they chose to do whilst refusing to do others,
for example, a machine operator would operate
his machine but refuse
to clean it, insisting that somebody else be employed as a cleaner.
Examples of this duplication of functions
were given by Moodley.
[17]
Accordingly, the job positions and job content actually performed at
the Company were not aligned with those in the Main Agreement.
For
example, in terms of the Main Agreement a machine operator is
required to clean his machine as part of his functions. There
is no
provision for an additional cleaner to be employed to perform such
task.
[18]
However, at the Company, over time, the job functions had been eroded
and the content of each job became smaller.
[19]
All this led the Company to perform an exercise in which it clustered
jobs as per the Main Agreement: if an employee was employed
under a
particular job title in a particular Grade, the idea was that he
ought to perform the tasks associated with a person in
his Grade as
reflected in the Main Agreement. This was done in order to address
the divergence between job positions and tasks
in the Main Agreement
on the one hand, and the tasks performed by people employed in those
positions at the Company on the other.
[20]
The exercise that was performed by the Company is reflected in
B
p. 711 and ff
, which groups all of Aveng job titles which fell
under (for instance) Grade H into one title, namely General Handler,
whose tasks
were as per the Main Agreement.
[21]
It was hoped that this proposed new structure would give the Company
flexibility. Thus, instead of an employee performing only
the
sling-man function, he could do any general worker job. This would
avoid the situation where many people sat idle waiting only
to
perform a single function instead of doing any function for which
they had the skills.
[22]
The information contained in
B p. 711 and ff
was distributed
to the Union at the outset of the consultation process, at a meeting
on 16 August 2014, as is recorded in the letter
at
B p. 234(a).
[23]
Nomsa Mofokeng (Mofokeng) was the Head of Human
Resources at the relevant time. She was part of the consultation
team. The team
included, Moodley, Komane, Rabolayo and Grobbler. At
the consultation meetings, documents like the business case study,
the organogram,
job descriptions and other related documents were
shared with the Union. She confirmed the transcripts of the
consultation meetings
as being accurate. She related to the interim
agreement and confirmed that after the release of the VSPs and LDCs
the individual
employees worked in terms of the interim agreement.
She testified about the shock that befell her when she saw the email
of 13
February 2015. She testified that the company was vulnerable.
She alluded to the preparation and presentation of the Five Grades
System. The company was shocked by the benchmarking demand of 60% and
16%. She also testified about offers of alternative employment
made
to the employees. The Union raised issues that were never raised
before at any consultation meetings. She was not cross-examined.
[24]
The last witness was Mr Andre Enslin (Enslin). His
testimony was confined to the issue of the possible re-instatement
relief. He
is the Managing Director of the second respondent. The
second respondent entered into a transfer agreement with the first
respondent.
The transport business of the first respondent was taken
over by the second respondent after a tender process. The employees
who
were employed at the time by the first respondent were taken over
by the second respondent. The second respondent operates efficiently
with 90 employees and will not be able to absorb a further 110 as
this may immediately throw the second respondent into a retrenchment
exercise. He gave estimated costs to the second respondent if the
employees were to be re-instated. Such costs will be in the region
of
R30 million rands. Effectively re-instatement will be impractical.
His cross-examination was focused more on criticizing his
speculations and the estimation of costs.
Argument
[25]
All the representatives submitted detailed written
heads of argument to which the Court is grateful. For the purposes of
this judgment
I liberally drew the background facts and evidence as
summarized in the first respondent’s heads. In addition, the
parties
augmented their submissions orally. It is unnecessary for the
purposes of this judgment to repeat all those submissions.
To
the extent necessary, I shall refer to some of the submissions later
in this judgment.
Evaluation
[26]
This is one of those matters where the true reason
for the dismissal is being disputed. As pointed out elsewhere in this
judgment,
the first respondent contends that the second applicants
were dismissed for operational requirements. Both the applicants
contend
that the true reason for the second applicants’
dismissal is because they refused to accept a demand made by the
first respondent
to sign new contracts of employment. In the amended
statement of case under legal submission, the applicants contended
that the
dismissals of the individual applicants were unfair in terms
of section 187 (1) (c) of the LRA because they were dismissed for
refusing to accept a demand in respect of a matter of mutual interest
between them and the first respondent.
[27]
The first respondent sought to implement redefined
job descriptions which would have altered the terms and conditions of
the individual
applicants ’employment, in that employees would
have,
inter alia,
had
to take up more functions as the first respondent intended to
consolidate various job descriptions into one. The first respondent
sought to impose the redefined job descriptions on the individual
applicants, the first respondent dismissed them and disguised
the
dismissals as being based on its operational requirements and
emanating from a section 189A process that was conducted and
finalized in 2014.
[28]
The alleged retrenchments were not the
true
reason
for the dismissals of the
individual applicants as the jobs that were performed by the
individual applicants are being performed
by new employees, employed
through labour brokers and LDCs.
[29]
The applicants’ alternative case is
predicated on the fact that the first respondent failed to
demonstrate that there was
a need to retrench. The jobs were not
redundant as they are performed by other employees. The first
respondent cannot justify how
it came to retrench 733 waged
employees. The first respondent made certain undertakings during the
consultation process, which
they did not fulfil. The first respondent
refused to pay severance pay.
[30]
Determining
the reason or the principal reason of a dismissal is a question of
fact. As such it is a matter of either direct evidence
or of
inference from the primary facts established by evidence. The reason
for dismissal consists of a set of facts, which operated
on the mind
of the employer when dismissing an employee
[5]
.
They are within the employer’s knowledge. The employer knows
better than anyone else in the world why it dismissed an employee.
[31]
When an
employee positively asserts that there was a different and
inadmissible reason for his or her dismissal, he or she must
produce
some evidence supporting the positive case, such as refusal to accept
a demand. An employer who dismisses an employee has
a reason for
doing so. He or she knows what it is and must prove what it is.
[6]
Was
the dismissal of the second applicants automatically unfair or not?
[32]
This matter
brings to the fore an interpretation of the amended section 187 (1)
(c)
[7]
of the LRA. Prior to its amendment, the section
[8]
employed the word
compel
as opposed to
refusal
.
Further it made it plain that it applies to an employee as opposed to
a group of employees. For the purposes of this judgment
and to also
do justice to the interpretation, it is crucial to have a clear
understanding of why the section was amended. The memorandum
of the
Labour Relations Amendment Bill reads thus: -
‘
The
section is amended to
remove
an anomaly arising
from the
interpretation
of
section 187(1)(c) in [
Fry’s
Metals]
[9]
which
held that the clause
had
been intended to remedy the so-called ‘lock-out’
dismissal which was a feature of pre 1995 labour relations practice
.
The effect of this decision when read with decisions such as
[
Algorax]
[10]
is
to discourage employers from offering reemployment to employees who
have been retrenched after refusing to accept changes in
working
conditions.
The
amended provision seeks to
give effect to the intention of the
provision as enacted in 1995 which is to preclude the dismissal of
employees where the
reason
for the dismissal is
their refusal to accept the demand by the employer over a matter of
mutual interest
. This is intended to protect the
integrity of
the process of collective bargaining
under the LRA and is
consistent with the purposes of the Act.’[My own underlining
and emphasis]
[33]
As far as
the legislature saw it, the Supreme Court of Appeal (SCA) in
interpreting section 187(1) (c) as it stood, was that it
did so
anomalously. In other words, the SCA deviated from the intended
intention and peculiarly or irregularly interpreted the
section. The
legislature found that the decision when read with the LAC decision
in
Chemical
Workers’ Industrial Union and Others v
Algorax
(Pty) Ltd it had the effect that employers are discouraged from
offering re-employment to retrenched employees after refusing to
accept change in working conditions. From the memorandum one can
deduct that the legislature did not find affection to the
interpretation
by the SCA of the section given its effect thereafter.
That being the case, it will be wrong to suggest that the principles
enshrined
in the SCA’s decision and
Algorax
have since become bad law as submitted by the applicants’
counsel. I was referred to a book
[11]
,
in it the author expressed a view on the amended section. She finds
that the section envisages three elements namely: demand,
refusal and
dismissal. I agree with this conclusion. However, I may add that also
the dismissal should be for a reason prohibited.
I also agree with
the following view:
‘
Building
on the discussion in the previous paragraph about retrenchments in
the strike context, it is suggested that the presence
of the elements
(demand, refusal, dismissal) envisaged by the amended section 187(1)
(c) does not exclude the potential application
of section 189. It
simply entails that when the retrenched employees present evidence
suggesting a credible possibility that the
dismissal occurred because
of their refusal to accept a demand in respect of a matter of mutual
interest, it is for the employer
to show that the dismissal was for
permissible reason. It is at that point that the court will apply the
two-stage causation test
as formulated in
Afrox
and discussed above. In other words, the court will have to assess
the evidence and apply the two-stage causation test like it
would in
any case where an employer claims that a dismissal was not for one of
the prohibited reasons listed in section 187.’
[34]
It is clear that what did not find affection is
the interpretation of the section because of the effects it had
thereafter. It seems
patently clear that what the legislature did not
like are the following portions of the LAC judgment: -
‘
[25]
When one has regard to the wording of s 187(1)(c) and that of the
relevant portions of the definition
of lock-out in s 1 of the old
Act, one is left in no doubt that s 187(1)(c) is
based
on the definition of the word lock-out in the old Act
.
There are a number of cases which feature in our law reports that
were decided under the old Act in which the definition of a
lock-out
featured. These include cases where lock-out dismissals or purported
lock-out dismissals had taken place…
[26]
In
Commercial Catering and Allied Workers Union and Others v Game
Discount World Ltd (1990) 11 ILJ 162 (IC)
the Industrial Court
had to interpret the definition of the word lock-out in regard to
termination by an employer of contracts
of employment of employees
within the context of a dispute about a change in terms and
conditions of employment. In that case the
employer purported to
effect a termination of the contracts of employment as part of a
lock-out under the old LRA. However, it
maintained, and, told the
employees’ representatives and the public, that the termination
of the employees’ contracts
of employment was final and
irrevocable. The Industrial Court held, correctly in my view that a
dismissal that was final and irrevocable
fell outside the definition
of a lock-out in s 1 of the old Act. It held that in order for a
termination of contracts of employment
to fall within the definition
of a lock-out in s 1, it had to be effected for one purpose specified
in the definition of the word
lock-out in s 1 of the old Act…
[27]
In my view what was said by the Industrial Court in
Game Discount
World
in respect of a lock-out dismissal under the definition of
a lock-out under the old Act,
namely, that such a dismissal cannot
be final and irrevocable, applies with equal force to the provisions
of s 187 (1) (c) of the
Act
. In order to fall within the ambit of
s 187 (1) (c) a dismissal must have a purpose-the compulsion of the
employees concerned to
accept a demand in respect of a matter of
mutual interest between employer and employee. If a dismissal is not
for that purpose,
it falls outside the ambit of s 187(1) (c).
[29]
A lock-out dismissal entails that the employer wants his existing
employees to agree to a change
of their terms and conditions of
employment. In a lock-out dismissal the employer would take the
attitude that, if the employees
do not agree to the proposed changes,
he would dismiss them-not for operational requirements-but to compel
them to agree to the
change. In such a case the employees thereafter
have an opportunity to agree to the change. When they agree to the
change, the
dismissal ceases because it has served its purpose.
If
the employees do not agree to the change after they have been
dismissed for the purposes of compelling them to agree, the employer
dismisses them finally. The last mentioned dismissal is not a
lock-out dismissal. It is an ordinary dismissal for operational
requirements.’
[35]
Equating a dismissal within the contemplation of
section 187 (1) (c) with a lock-out dismissal is not something that
pleased the
legislature it seems to me. The old Act was repealed in
its entirety. To bring some sections into the new Act was
inappropriate
it also seems to me. However, it is not apparent from
the memorandum that the following principle is to be disturbed: -
‘
[31]…In
the light of all the above I conclude that there is a distinction
between a dismissal for a reason based on operational
requirements
and a dismissal the purpose of which is to compel an employee or
employees to accept a demand in respect of a matter
of mutual
interest between employer and employee. The distinction relates to
whether the dismissal is effected in order to compel
the employees to
agree to the employer’s demand which would result in the
dismissal being withdrawn and the employees being
retained if they
accept the demand or whether it is effected finally so that, in a
case such as this one,
the
employer may replace the employees permanently with employees who are
prepared to work under the terms and conditions that meet
the
employer’s requirements. An ordinary retrenchment, where the
employees who are being retrenched will not be replaced
is, of
course, also a dismissal for operational requirements. ‘
[36]
The views
expressed by the LAC were accepted by the SCA.
[12]
To my mind the distinction holds true even to the amended version. A
dismissal where the reason for it is the refusal to accept
a demand
is prohibited
[13]
.
However, a dismissal where the reason for it is the operational
requirements is not to be precluded in the section. To say so
would
render the provisions of section 188(1) (a) (ii) read with section
189 nugatory. Of concern to the legislature in so far
as is
Algorax
is concerned was apparently the following finding:
‘
[42]
Prior to the dismissal of the individual appellants, the respondent’s
stance was that, if the
employees did not agree to work rotating
shift, they would be dismissed. This meant that, if the employees
agreed to work on Saturdays
and Sundays, they would not be dismissed.
Prior
to the dismissal, the employer made it clear that once the employees
had been dismissed, the dismissal would be effective
and it would
withdraw the dismissal if they agreed to work the rotating shift but
would not pay them for the intervening period
.
That is clearly supportive of the contention that the dismissal was
designed to get employees to agree to the respondent’s
demand.
That would fit into the provision of section 187 (1) (c) of the
Act’.
[14]
[37]
Again in
Algorax
,
the LAC appreciated that the starting point in determining whether
there was a fair reason for the dismissal is the determination
of the
reasons for the dismissal
[15]
.
This principle remains intact even after the amendment. To my mind
the facts in
Algorax
are a typical example of what the current section 187 (1) (c) seeks
to prevent.
[38]
Management formed a view that a rotating shift
system would resolve problems of lack of communication between it and
permanent night
shift workers. Algorax then informed the Union that
it was planning to introduce the new shift system. This was after
several meetings
with the shop stewards. The employees refused to
accept the proposed shift. Algorax then declared a dispute which it
referred to
the CCMA. It later requested advisory arbitration failing
which a retrenchment exercise would commence.
[39]
Thereafter each employee was requested to sign an
undertaking to work the new shift system. Employees who refused to
sign the undertaking
were dismissed. In the memorandum of 19
September 1997, management gave, as reasons for the proposed shift
change, that it is to
ensure that the packaging department employees
still had jobs for the foreseeable future, to no longer have to use
contractors
in the packaging area, to work on Saturdays and Sundays
to ensure that the silos did not get full because if they filled up
and
that there had to be a product change that was not planned, the
costs would be about R20 000 each time.
[40]
I also agree with Le Roux when she says:
‘
Fry’s
Metals
and
Algorax
created an anomaly in respect of a narrow issue. However, but for the
anomaly, these two judgments and jurisprudence both before
and after
these two judgments have never seriously suggested that an employer
may
never
retrench when the employer requires changes to the terms and
conditions of employees in order to meet its operational
requirements’.
[41]
What the LAC then did with regard to the reasons
set out in the memorandum of 19 September 1997 was to say the
following:
‘
[71]
It seems to me, therefore, that the individual appellants’
dismissal was not warranted because the problems that the
respondent
sought to address when it demanded that the individual appellants
agree to work the rotating shift
could
have been adequately addressed without the implementation of the
rotating shift system and without harming the respondent’s
business in any manner or in any significant manner’
…[My
own underlining and emphasis]
[42]
All of the
above are still good law even with the amended section. I therefore
reject any submission that the amended section actually
outlawed
other reasons that can justify a dismissal as they are “trumped”,
as argued by Mr Van der Riet for the applicants.
He drew parallel to
the provisions of section 67(5)
[16]
of
the LRA. In his submission, that is the only time the legislature
allows usage of other reasons. This parallel is incapable of
being
drawn to my mind. The protection in subsection (4) is to insulate a
striking employee in a protected strike from a dismissal
for reason
of participating in that strike. This insulation is different from
the preclusion in section 187 (1) (c). In a section
187 (1) (c)
situation, if the reason for the dismissal is the refusal to accept a
demand then such is considered to be automatically
unfair. Whereas
section 67(5) insulates completely to a point that an employer may
not dismiss.
[43]
In addition
to this insulation, given the fact that a right to strike is
guaranteed Constitutionally, it becomes an automatically
unfair
dismissal if the reason for participation in the protected strike is
used
[17]
.
On the contrary if the legislature intended the same insulation as in
section 67(5), there must have been a provision that an
employer may
not dismiss an employee for refusing to accept a demand. The reason
seems obvious to me, there is no right to refuse
to accept a demand
that is so guaranteed in the Constitution.
[44]
To my mind the intention of the amendment was not
to guarantee the right to refuse. All the amended section seeks to
achieve is
to avoid the situation where an employer flexes the right
to dismiss muscle in a collective bargaining situation. Like any
other
automatically unfair dismissal, of importance is the reason the
employer used to dismiss. Even if all the three elements (demand,
refusal and dismissal) are present, if the evidence shows that the
true reason for the dismissal so effected is not because of
the
refusal, a dismissal shall not be automatically unfair. In a
situation where, as in this case, it is shown that the change
is
offered as an alternative to avoid retrenchment, it must follow that
applying the two-stage approach, the dominant reason would
be the
operational requirements. It would seem to be fundamentally wrong to
imply that in effecting the amendment the legislature
intended to
create violence in the language employed in section 187.
[45]
In all automatically unfair dismissals instances
in section 187, they are preceded with the phrase “
if
the reason for the dismissal is
.”
To my mind it is not necessary to imply the provisions of section 189
into section 187 (1) (c). Like all the other prohibited
reasons
listed in section 187, there can exist other reasons contemplated in
section 188 of the LRA in any set of facts. In all
respects, the
starting point is a dismissal within the contemplation of section 186
of the LRA. On any set of facts, a dismissal
within the contemplation
of section 186 may potentially be a fair one as contemplated in
section 188 or an automatically unfair
one within the contemplation
of section 187.
[46]
What matters is the reason advanced for it. The
amendment certainly removes the special kind of dismissal-conditional
one, considered
in
Fry’s Metals
and
Algorax
.
A dismissal effected for a reason that an employee refused to accept
a demand is final and amounts to an automatically unfair
dismissal.
As an indication that the legislature never intended to outlaw
retrenchment in a section 187(1) (c) situation, it was
concerned
about the discouragement of offering re-employment to employees
retrenched after refusing to accept changes to working
conditions.
Impliedly, the legislature was alive to a possibility to retrench
after refusing to accept changes to working conditions,
which was the
principle accepted in
Fry’s
Metals
.
[47]
I do not agree with a proposition that there is
trumping of provisions. I do not see how a party like an employer who
bears the
overall onus to justify a dismissal in terms of section 192
can and should be precluded from justifying such a dismissal in terms
of other reasons available to it in section 188(1). It ought to be
remembered that an employer effects a dismissal, except in the
situation contemplated in section 186(2) (b), (e) and (f). In the
event of a challenge it will be unfair and inconsistent with
the
Constitution to suggest that because an employee is suggesting
another reason an employer cannot raise and prove any of the
reasons
contemplated in section 188 (1) of the LRA.
[48]
South Africa is a signatory to the ILO
conventions. In terms of section 3 of the LRA any person applying
this Act must interpret
its provisions in compliance with the public
international law obligations of the Republic. Article 4 of
Termination of Employment
Convention, 1982, says that an employer
must have a valid reason for termination based on amongst others the
operational requirements
of the undertaking, establishment or
service. Section 3 also enjoins an interpretation in compliance with
the Constitution. In
terms of section 23(1) of the Constitution
everyone has the right to fair labour practices. With all the above
interpretative tools,
it would be remiss for this Court to accept the
following submission by Mr Van Der Riet:-
‘
As
the author points out, section 67(5) expressly permits a dismissal
for a reason based on the employer’s operational reasons
in the
context of strike action. It is respectfully submitted that in the
absence of a similar provision in relation to section
187(1) (c) of
the LRA, section 188(1)
precludes
the reliance on a fair reason relating to operational requirements
where
the reason for dismissal is the refusal of the employees to accept a
demand in respect of a matter of mutual interest as contemplated
in
the new section 187(1) (c)’.
[My
own underlining]
[49]
This submission falters on two
reasons. Firstly, it is not a given that once an employee suggests
the prohibited reason, that is
the reason. An employee is still
required to produce credible evidence to show that the provisions of
the section arose. Most importantly
and in line with the
Constitution
[18]
,
the employer is entitled to dispute such a reason in a court of law.
[50]
A
consultation in terms of section 189 of the LRA is not a collective
bargaining process. Section 189 (2) enjoins the consulting
parties to
attempt to reach consensus on appropriate measures to avoid the
dismissals. In fact the LAC in A
lgorax
correctly held, correctly in my view, that after all, section 189(2)
(a) (i) and (ii) read with subsection (3) (a) and (b) imply
that the
employer has an obligation, if at all possible, to avoid dismissals
of employees for operational reasons altogether or
to minimise the
number of dismissals if possible, and to consider other alternatives
of addressing its problems without dismissing
the employees
[19]
.
[51]
The redesigned job descriptions, on the
uncontested evidence, were introduced and proposed in order to save
the first respondent
from the situation that would make it not
survive and to save jobs. This cannot be seen as flexing the muscles
within a context
of collective bargaining. What purpose would
it have served if the first respondent resorted to power play? To my
mind no
purpose will be served. The redesigned job description viewed
in this instance as a demand by the applicants, was introduced in
a
context that statutorily requires consideration of appropriate
measures to avoid dismissals. There is no collective bargaining
involved in this regard.
[52]
After
Algorax
,
the LAC’s decision in
Fry’s
Metals
was confirmed on
appeal to the SCA in
Fry’s
Metals 2,
[20]
wherein
the SCA held as follows:
[21]
‘
To
deal with the apparently overlapping categories the LRA creates,
[Thompson] suggested that the courts would have to determine
on a
case-by-case basis when an employer/employee dispute had permissibly
‘migrated’ from the bargaining domain (where
matters of
mutual interest cannot legitimately trigger dismissals) to the ‘legal
domain’ (where the employer is permitted
to dismiss for
operational reasons). The core difficulty with this argument is that
the dichotomy between matters of mutual interest
and questions of
‘right’ do not, in our view, form the basis of the
collective bargaining structure that the statute
has adopted.
The
unavoidable complexities that arise from the supposed ‘migration’
of issues from matters of mutual interest to matters
of ‘right’
demonstrate, in our view, that the dichotomy does not form the basis
of the statutory structure, and section
187(1)(c) cannot,
accordingly, be interpreted as if the legislation proceeds from that
premise
.’[My
emphasis]
[53]
The position
of suggesting changes in order to save jobs seems to have received
favour in some of the English cases
[22]
.
In
Garside
and Laycock Ltd v T G Booth
[23]
,
similar sentiments were expressed. The essential facts in
Garside
were that the company in 2009 was undergoing trading difficulties.
Their predicated sales in the year 2008-2009 had dropped from
the
previous year. The gross profit was low; to maintain the work at
least a two per cent profit needed to be demonstrated. A consequence
was that the employer decided to ask its employees to accept a
reduction in pay. What was proposed was a reduction of five percent.
[54]
The respondent employee was only one of two
members of the workforce who ultimately refused to accept such a cut
to his pay packet.
The employer had held a number of meetings at
which all staff members were addressed by management, telling them of
high level
business forecasts and predictions. In April 2009 the
employees were asked to indicate on a written slip whether, in order
to avoid
possible further redundancies, they would accept a pay
reduction of five per cent with effect from the May 2009 payroll. The
majority
of employees voted in favour of the change. On 5 October
2009, the respondent was offered a new contract which gave him an
option
of either having the new terms and conditions offered to all
staff. He declined the offer. Ultimately he was dismissed.
[55]
Aggrieved by
his dismissal, the employee approached the Employment Tribunal. The
Tribunal relying on
Catamaran
Cruisers Ltd v Williams and others
[24]
,
concluded
that the dismissal was unfair. It reasoned thus: -
‘
It
was
reasonable
for the claimant to seek to maintain terms and conditions which he
had enjoyed for many years and in particular not to agree to
a
significant reduction in pay in favour of an uncertain bonus scheme.’
[My own underlining]
[56]
On appeal it was found that the Tribunal
misapplied the
Catamaran
decision. Of importance to the matter before me is this which was
said by the Appeal Tribunal: -
‘
[14]
The focus of the Tribunal’s attention is thus required to be on
the reasoning and reasonableness
of the employer and not upon what it
is reasonable for the Claimant to do… Thus, in
Chubb
Fire Securities Ltd v Harper
[25]
the Employment Appeal Tribunal, Balcombe J presiding, dealt with the
question that arose when an Industrial Tribunal had to consider
whether it was reasonable for an employee to decline the new terms of
a contract. The Tribunal’s judgment had said: “if
it was
reasonable for him to decline these terms then obviously it would
have been unreasonable for the employers to dismiss for
such
refusal.”
[15]
The Judgment of Balcombe J makes it clear that that was a wrong
approach. He stated: “We
must respectfully disagree with that
conclusion. It may be perfectly reasonable for an employee to decline
to work extra overtime
having regard for his family commitments, yet
from the employer’s point of view having regard to his business
commitments,
it may be perfectly reasonable to require an employee to
work overtime. […] We agree with the comment […] in
Harvey
on Industrial Relations in Employment Law’ […]
‘it does not follow that if one party is acting reasonably the
other is acting unreasonably.’
[57]
What one
observes is that the approach taken is that of assessing the
reasonableness of the refusal. In our legislation one sees
a similar
approach in section 41 of the Basic Conditions of Employment
Act
[26]
(BCEA).
To my mind, in a context of a retrenchment consultation, it is
perfectly reasonable for an employer to suggest change to the terms
and conditions of employment if such a change would resolve the
economic quack mire faced by the employer at the time and save
jobs.
[58]
It is certainly unreasonable for an employee to refuse to accede to
the change at the altar of the preclusion in section 187(1)
(c) when
the acceptance will avoid a dismissal. Of importance becomes the
purpose of the change. If its purpose is to preserve
jobs, as it is
the case in the matter before me, then the refusal will be
unreasonable and inconsistent with the purpose and objects
of the
LRA. By proposing the change in such a situation, an employer does
not gain bargaining advantage in any manner or shape.
[59]
Returning to the requirement to produce credible evidence: during
argument, I enquired from the applicants’ counsel as
to which
evidence are the applicants relying on to satisfy the requirement,
since the applicants led no evidence? He referred me
to the evidence
of Moodley, the first respondent’s witness. In his submission,
the requirement does not necessarily await
evidence from the employee
who alleges another prohibited reason. I don’t agree. He relied
on the following evidence by Moodley:
‘
Mr
Van Der Riet
: They
are told there effectively that they have to accept the new contracts
of employment by 21 April 2015. Is that correct?
Mr
Moodley
:
That is correct,
as it
stands there
.
Mr
Van Der Riet
:
Ja but the process was, and
that
will be the evidence
,
that each of those 804 employees, wage earners, were given a contract
of employment and attached and say: you will accept that?
If not, you
are going to be retrenched. Is not that so?
Mr
Moodley
:
Arising
from the operational requirements
,
yes.’
[27]
[60]
The above arose only during
cross-examination. It is clear from the exchange that in the first
answer, Moodley was confirming the
contents of paragraph 16
[28]
of the letter written on 17 April 2015. It is clear from the question
that the phrase ‘
they
have to accept the new contracts of employment’
was coined by the cross-examiner, it does not occur in paragraph 16.
However, the witness answered in line with what clause 16
stated. The
second answer is the most telling one. Moodley gave a qualified
answer. He said the termination will be for operational
reasons and
not for the refusal to accept the demand.
[61]
For the provisions of section 187(1) (c) to obtain, there must be
some credible evidence that shows that firstly there was
a demand and
secondly a refusal. Thirdly that the ensuing dismissal objectively
viewed, was as a result of the refusal (causal
connection). I
struggled to observe the demand alleged in this case by the
applicants.
[62]
Paragraph 16 of the letter refers to a request to indicate
willingness to accept an alternative reasonable offer. An offer
and a
demand are two distinct things. The evidence which surprisingly the
applicants sought to rely on does not credibly show that
there was a
demand and a refusal which led to a dismissal. Ironically, in this
matter there is clear evidence that the second applicants
did perform
duties in terms of the redesigned job description for a period of
about six months. It baffles me why there can be
a talk about a
refusal. All it boils down to is more money and nothing else. To this
proposition, Mr Van Der Riet correctly conceded.
[63]
Regard being had to the email
of 13 February 2015, it is clear that in October 2014, the second
applicants agreed to the “demand”-to
work according to
the redesigned job descriptions. They did not refuse, but what they
did in an attempt to extract more money from
the already limping
first respondent was to renege, knowing full well that the first
respondent is in a vulnerable position-the
LDCs
[29]
and VSPs
[30]
had left. I agree with Mr Franklin for the first respondent that this
evinces
mala fides
on the part of the Union and its members. In their wisdom, the
applicants chose to lead no evidence. Versions put in cross
examination
and not confirmed in evidence remain as versions and do
not constitute evidence.
[64]
Despite suggesting to Moodley
that there will be evidence which suggest that dismissal will be used
if they do not accept contracts
of employment, such evidence was not
produced in this Court. Absent credible evidence the first respondent
in my mind is not behoved
to show that the dismissal is not for
prohibited grounds. Recently the Labour Court per La Grange J in
Bakulu v Isilumko Staffing
(Pty) Ltd and Another
[31]
,
had the following to say, to which I associate myself with:-
‘
[9]
Thus, in order to establish a basis for his case of automatically
unfair dismissal, Bakulu
needed to adduce some evidence that would
tend to suggest that the
real
reason
for his
dismissal was not incapacity, which was the reason given by Isilumko,
but was possibly race
[15]
…But he has brought his case to this court on the basis that
the real reason was because
of his race
and he needed to raise a
credibly possibility that his dismissal in question fell within the
scope of section 187(1) (f)’.
[My own emphasis]
[65]
The approach taken by my
brother in the
Bakulu
matter was to grant an absolution from the instance. In this matter,
I am not taking that approach. Since the employer is not behoved
to
prove otherwise, I then gravitated towards the reasons given by the
employer for the dismissal. The SCA has found in the
Fry’s
Metals
matter that once
compulsion to accept is excluded no further enquiry should occur into
the nature or categorization of the demand.
[32]
I understand that to mean that the claim ought to be dismissed on
that basis alone.
What
applies is the test set out in
Kroukam
v SA Airlink (Pty) Ltd
[33]
,
which
is that
,
the employee must produce credible evidence that shows that an
automatically unfair dismissal has occurred. This I call the first
hurdle. Should an applicant fail to cross this hurdle such an
applicant must to my mind, fail.
[34]
[66]
In the circumstances I conclude that the second
applicants were not automatically unfairly dismissed. I particularly
conclude that
the amended section 187(1) (c) does not outlaw, as
argued, dismissal for operational reasons. All it does is to
introduce as it
were final dismissal if the reason is the refusal to
accept the demand.
Fry’s Metals
and
Algorax
are still good law to the extent that they allowed dismissal for
operational reasons in a situation of not accepting change aimed
at
addressing the operational requirements of an employer.
Were
the Individual applicants’ dismissals substantively unfair?
[67]
The issue of procedural unfairness does not arise
before me. It has been resolved by this Court earlier. Before me is
the question
whether dismissal is substantively fair or not. To a
large extend, the applicants fought their case on the basis that
Fry’s Metals
and
Algorax
are no longer good law.
[68]
There is no
iota
of evidence to gainsay the evidence of the first respondent’s
two witnesses. This Court must then accept that the first respondent
was faced with difficulties and the only viable answer to that
conundrum was to restructure and redesign the jobs. I am satisfied
that the first respondent did everything possible to save the jobs.
Had the second applicants continued with the redesigned jobs,
without
a financial dent as it was the situation, they would still be in
employment. Put differently, their jobs would have been
saved. It
perplexed me when Mofokeng was not cross-examined. The tenor of her
evidence and that of Moodley suggest that they, at
the very least,
had secured an agreement that the redesigned job descriptions are the
appropriate answer to the difficulties faced
by the first respondent.
It was for that reason that they expressed shock when they learned
about the reneging.
[69]
The duty to avoid a dismissal befalls the other
party too in a consultation process. The applicants had a duty as it
were, to make
reasonable proposals to avoid a dismissal. Nowhere in
the minutes was I able to find any counter proposal to the redesigned
jobs
nor better still a proposal to be paid anything else other than
the 60% and the 16% reflected in the unchallenged evidence of Moodley
and Mofokeng. The first respondent had a commercial rationale to
restructure.
[70]
In
Mazista
tiles (Pty) Ltd v NUM and Others
[35]
,
the
LAC had the following to say, which is still valid to this day:-
‘
[57]
…The appellant could still decide that its business required
that the employees’ terms
and conditions of service be changed
in order to be more profitable and more competitive. If the employees
rejected its proposal
on changing the terms and conditions, as it was
the position in this matter, then the appellant would be entitled to
dismiss them
for operational reasons.’
[71]
I have no other evidence to compare with and or
reject the clear and concise evidence of Moodley and Mofokeng. In
their statement
of case what they sought to make was that the first
respondent failed to demonstrate that there was a need to retrench.
The evidence
of the first respondent’s witnesses remains
largely unchallenged. When it comes to substantive fairness, the
court relies
on the evidence adduced in court. No evidence was led to
demonstrate that the old positions were not redundant as testified by
the first respondent’s witnesses. Similarly, there was no
evidence to support the alleged undertakings made. For the reasons
set out above, the dismissals are substantively fair.
The
issue of the practicability of reinstatement.
[72]
Given the
view I take at the end of this matter, this question becomes academic
in a sense. The second respondent was joined in
the proceedings on
the strength of the provisions of section 197 (2) (c)
[36]
.
The essential facts in relation to this part of the case is that
almost a year after the dismissals, the first respondent outsourced
its fleet and actually transferred its transport business to the
second respondent. If this Court were to find that the dismissal
of
the second applicants, is unfair, some 110 employees would be
required to be re-instated by the second respondent.
[73]
The second respondent left the substantive
fairness part of the case to be fought by the first respondent alone.
It sought to resist
and or exclude the primary remedy should the
Court find that the dismissals are substantively unfair.
[74]
The second respondent led the evidence of
Enslin who testified about the impracticability of
reinstatement as a remedy.
Other than criticizing his evidence in
cross-examination no other comparable evidence was presented to this
Court.
[75]
The relevant
section of the LRA in this part of the case is section 193(2)
(c)
[37]
.
The submission of Mr Van der Riet is simply that there was no
evidence that it is not reasonably practicable to reinstate the
individual applicants. In his submission, the evidence of Enslin does
not show that. The dictionary meaning of the word ‘practicable’
means-
capable
of being effected, done, or put into practice; feasible
.
Reasonable has as its meaning to be being within the bounds of common
sense, not excessive, extreme or fair.
[76]
So to my mind the phrase reasonably practicable
means that which is effectively fair. An objective value judgment
predicated on
some evidence is thus required. The only facts upon
which the Court could predicate a value judgment is the evidence of
Enslin.
He told the Court in no uncertain terms that the second
respondent has positions for 90 drivers and if 110 is added such
would
lead to an immediate retrenchment. Courts are enjoined by the
Constitution to give effective orders. Granting re-instatement under
the circumstances testified to by Enslin would not only offend the
provisions of the section but it would be ineffective to do
so.
[77]
For an employer to exclude the primary remedy,
evidence supporting one of the exceptions must be led. In
casu
,
the second respondent did that and I am satisfied that re-instatement
if ordered would be impracticable. Had I found that the
dismissal is
unfair, I would not have ordered re-instatement as a remedy
[78]
As to costs, I have taken into account that this
matter raised a novel issue, which the applicants were entitled to
argue in this
Court. Also there must be an on-going relationship
between the Union and the first respondent or the second respondent
perhaps.
Had it not been for the novelty issue, I was prepared to
make an order that costs should follow the results. Therefore, the
appropriate
order is one that each party to pay its own costs.
Although none of the parties suggested that there is a constitutional
issue
belying this matter-right to collective bargaining, I believe
such an issue does exist although not argued before me.
[79]
In the results, I make the following order:
Order
1 The dismissal of
the second applicants is not automatically unfair.
2
The
dismissal of the second applicants is substantively fair.
3
Each
party to pay its own costs.
_______________________
GN Moshoana,
Judge
of the Labour Court of South Africa
Appearances:
For the Applicants
: Advocate J G Van Der Riet
SC
Instructed by
: Ruth Edmonds Attorneys, Observatory, Johannesburg
For the First Respondent :
Advocate A Franklin SC and Advocate R Itzkin
Instructed
by
: ENS Inc, Sandton
For
the Second Respondent: Advocate A Redding SC and Advocate G Fourie.
Instructed
by
: Cliffe Dekker Hofmeyer, Sandton.
[1]
Act
66 of 1995 as amended.
[2]
Limited Duration Contracts.
[3]
Voluntary Severance Packages.
[4]
B p. 773 – 801.
[5]
Abernethy
v Mott, Hay and Anderson
[1974]
ICR 323.
See also
K
Screene v Seatwave
Ltd Appeal No. UKEAT/0020/11/RN delivered on 26 May 2011.
[6]
See
Kuze
v Rouche Products Ltd
[2008] EWCA Civ 380
(17 April 2008)
[7]
Section 187. Automatically unfair dismissals.
(1)
A dismissal is automatically unfair if the employer, in dismissing
the employee, acts contrary to section 5 or
, if the reason
for the dismissal is-
(c)
A refusal
by employees to accept a demand in respect of any
matter of mutual interest between them and their employer. [My
emphasis]
[8]
(c) To
compel
the
employee
to accept a demand in respect of any matter of mutual interest
between the employer
and
employee
.
[My underlining]
[9]
Fry’s
Metals (Pty) Ltd v National Union of Metalworkers of SA
and
O
thers
(2003) 21 ILJ 133 (LAC).
[10]
[2003] 11 BLLR 1081 (LAC).
[11]
R Le Roux; Retrenchment Law in South Africa, (Lexis Nexis 2016).
[12]
[56] The LAC’s solution to the conundrum of the
statutory concepts was thus to assign a distinctive meaning
to
‘dismissal’ in s 187(1)(c), and then to restrict this
category of automatically unfair dismissal to those effected
for the
purpose of inducing employees to change their minds regarding the
employer’s demand. On this approach, only conditional
dismissals can fall under section 187(1) (c), and it is this that
distinguishes them from the broader category of dismissals…
In such
cases, the only factual enquiry confronting a court is the
employer’s reason for effecting the dismissal: once compulsion
to accept the disputed demand (with ensuing reversal of the
dismissal) is excluded, no further enquiry into the nature or the
categorization of the demand is required.
[13]
The second part of the memorandum:
The
amended provision seeks to give effect to the intention of the
provision as enacted in 1995
which
is to preclude the dismissal of employees where the reason for the
dismissal is their refusal to accept the demand by the
employer over
a matter of mutual interest.
This is intended to protect the integrity of the process of
collective bargaining under the LRA and is consistent with the
purposes of the Act.”
[14]
The effect of this decision when read with decisions such as
Algorax
is to
discourage employers from offering re-employment to employees who
have been retrenched after refusing to accept changes
in working
conditions
[15]
Paragraph 58 of the judgment.
[16]
(5) Subsection (4) does not preclude an employer from fairly
dismissing an employee in accordance with the provisions of Chapter
VIII for reasons related to the employee’s conduct during the
strike, or for a reason based on the employer’s operational
requirements.
[17]
Section 187(1) (a)-if the reason for the dismissal is that the
employee participated in or supported, or indicated an intention
to
participate in or support, a strike or protest action that complies
with the provisions of Chapter IV.
[18]
Everyone has the right to have any dispute that can be resolved by
the application of law decided in a fair public hearing before
a
court or, where appropriate, another independent and impartial
tribunal or forum.
[19]
Paragraph 70 of the judgment.
[20]
National
Union of Metalworkers of SA
and
O
thers
v Fry’s Metals (Pty) Ltd
2005 (5) SA 433 (SCA).
[21]
At par. 54.
[22]
See
Hollister
v National Farmers Union
[1979] ICR 542.
[23]
Appeal No. UKEAT/003/11/CEA delivered on 27 May 2011.
[24]
[1994] IRLR 386
[25]
[1983] IRLR 311.
[26]
Act 75 of 1997.
[27]
Pages140-141 of the transcript.
[28]
16 As from 28 April 2015 the R3.00 temporary rate will no longer be
applicable as we would have implemented the redefined job
descriptions in respect of the positions that will remain in the
organisation. Your members and employees in affected positions
will
be
requested
to indicate whether they wish to accept the reasonable offer of
alternative employment by no later than 21 April 2015
.
Page 255 of Volume 1 Bundles.
[29]
Limited Duration Contractors.
[30]
Voluntary Severance Packages.
[31]
Case JS 105-16 delivered on 15 November 2017
[32]
Paragraph 56 of the judgment.
[33]
[2005]
26 ILJ 2153 (LAC).
[34]
Tshivhase-Phendla
v University of Venda
Case JS
1145-12 delivered 12 October 2017
.
[35]
[2005] 3 BLLR 219 (LAC).
[36]
Anything done before the transfer by or in relation to the old
employer, including the
dismissal
of an
employee or the commission of an unfair labour practice or act of
unfair discrimination, is considered to have been done
by or in
relation to the new employer.
[37]
The Labour Court or the arbitrator must require the employer to
re-instate or re-employ the employee unless-
(a)…
(b)…
(c)
It is not
reasonably practicable
for the employer to
re-instate or re-employ the employee.