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[2018] ZALCJHB 19
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Van Dyk v Zeda Car Leasing (Pty) Ltd t/a Avis Fleet (JS1027/15) [2018] ZALCJHB 19 (25 January 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JS 1027/15
In
the matter between
:
SUSAN
MARGARET VAN
DYK
Applicant
and
ZEDA
CAR LEASING (PTY) LTD t/a AVIS
FLEET
Respondent
Heard:
28 August 2017
Delivered:
25 January 2018
Summary:
Procedurally unfair dismissal for operational requirements –
applicant was faced with
fait accompli
.
JUDGMENT
NKUTHA-NKONTWANA
J:
Introduction
[1]
In this
lawsuit, the applicant (Ms Van Dyk) seeks an order declaring that her
dismissal by the respondent (Avis) is automatically
unfair in terms
of section 187(1)(f) of the Labour Relations Act (the LRA);
[1]
alternatively, that her dismissal is substantively and procedurally
unfair in terms of section 189 of the LRA. The issues for
determination are as follows:
1.1.
Whether Ms Van Dyk was unfairly dismissed by Avis
on the ground of unfair discrimination on the basis of conscience and
belief in
terms of section 187(1) of the LRA. She alleges that her
dismissal resulted from a challenge and grievance lodged against the
Respondent’s
Business Development Executive, Mr Albert
Geldenhuys (Mr Geldenhuys);
1.2.
Alternatively, whether the dismissal of Ms Van
Dyk was operationally rational and/or effected in accordance with a
fair procedure.
She alleges that there was no
bona
fide
reason for her dismissal; and the
consultation was deficient, insensitive and rushed in order to
deliberately get rid of her.
Factual
background
[2]
Ms Van Dyk commenced employment with Avis on
13 February 2006. She was promoted to a position of General
Manager: Key Accounts
on 1 May 2013 reporting to the Executive
Director: Sales. Ms Laura Friebe (Ms Friebe) who was appointed as a
General Manager: New
Business Acquisitions in the same department and
same level as Ms Van Dyk.
[3]
As a General Manager: Key Accounts, Ms Van Dyk
was supervising a division of the sales portfolio known as “Carers”
which,
were required to attend to the varying needs and requirements
of the clientele once their business had been sought and secured.
On the other hand, Ms Friebe was responsible for the supervision of
the sales portfolio known as “Hunters” which was
required
to seek and secure new business and pass the clientele to the Caring
Division. It is common cause that Ms Van Dyk also
had Hunters
reporting to her but the majority of her portfolio required the
supervision of the Caring Division, a bigger division
compared to the
Hunting Division.
[4]
It is also common cause that both Misses Van Dyk
and Friebe (the General Managers) were equally competent and had the
necessary
skills to undertake and execute their duties effectively.
However, the General Managers had, on an ongoing and sustained basis,
various business related differences. Mr Edward Enslin (Mr
Enslin), Mr Geldenhuys predecessor, had had to intervene in many
occasions with a view to resolve the differences of opinion between
the General Managers.
[5]
It is not disputed that the Sales Division had
been financially viable when Mr Geldenhuys took over. That was so
despite the considerable
differences of opinion between the General
Managers. Mr Geldenhuys began to observe the ongoing discord and
disharmony between
the General Managers and believed that it was not
in the business interests of the respondent, neither was it conducive
to a proper
and effective interaction between the two of them, for
this disharmony to remain unaddressed. As a result, the services of
an external
facilitator, Mr Bruce Weyers (Mr Weyers) were secured to
facilitate a conflict resolution session in order to resolve the
differences
and disharmony between the General Managers.
[6]
Prior to the conflict resolution session, on 10
June 2015, Ms Van Dyk had a disagreement with Mr Geldenhuys over a
trail of emails
between the General Managers that had been escalated
by Ms Friebe. She testified that Mr Geldenhuys lost his temper and
slammed
the table at her. Out of frustration she sought guidance from
Mr Enslin on how to handle the situation as she was of the view that
Mr Geldenhuys preferred Ms Friebe over her. Mr Geldenhuys conceded
that his conduct was out of line but had apologised to Ms Van
Dyk.
Subsequently they both agreed to a more open conversation.
[7]
The conflict resolution session with Mr Weyers
was held on 15 July 2015. According to Ms Van Dyk, the intervention
was successful
but Mr Geldenhuys disputed that and it would seem that
Ms Friebe also held a different view. On 13 August 2015, Mr
Geldenhuys,
addressed a letter to both the General Managers
requesting them to set out, in some detail, their view of the
status
quo
and whether they believed that they could
effectively and meaningfully interact with one another in the future
and whether the
situation was, indeed, remediable.
[8]
Ms Van Dyk testified that she was surprised by
the sudden turn of events because there had been good will gestures
by both the General
Managers toward building a better relationship.
At that point she also felt that her career was in jeopardy. She was
not
warned about the adverse consequences in the event the conflict
was not resolved. In her response, Ms Van Dyk was adamant that the
department was doing well and nothing had changed; that the conflict
between the General Managers had no impact on their teams.
On the
other hand, Ms Friebe was of the view that the teams were operating
in silos which was extremely difficult for her to carry
on in that
difficult environment.
[9]
Ms Van Dyk testified that, on 17 August 2015, Mr
Geldenhuys came to her office and informed her that had been wrongly
advised by
HR and, as such, had no intention to take the matter any
further. Mr Geldenhuys testified that he had no recollection of this
discussion.
Nonetheless, Ms Van Dyk thought the matter was put to
rest.
[10]
Mr Geldenhuys testified that the option of
introducing a new structure that merged the two general manger
positions into one was
discussed for the first time in a Management
Committee (Manco) meeting that took place on 7 September 2015. A
possibility to retain
both General Managers because of their
experience and skills was also discussed and Ms Van Dyk was
considered for a position in
Operations. His ultimate goal was to
grow the market base and business. He also wanted to dive a new brand
culture consequent to
the Yellowwood initiative which had commenced
under the management of Mr Enslin, where different approaches had
been mooted and
discussed with a view to adapting the manner in which
business had been undertaken in order to ensure that Avis remained
viable
and competitive.
[11]
Mr Geldenhuys’ move was also driven by the
commission structure which at that time was disproportionate. The
National Sales
Division’s meeting of 19 August 2015, was spent
discussing the commission structure and in particular the
discrepancies weighting
of commissions between the Hunting and Caring
teams. A robust discussion had also taken place with regard to the
facilitation and
the transfer of clients from Hunters to Carers but
although this was robust, direct and very often heated, it remained
professional
at all times.
[12]
On 8 September 2015, Mr Geldenhuys and Ms Van Dyk
had a one-on-one meeting. According to Ms Van Dyk it was a standard
practice to
meet and the agenda for the day had 24 items. Towards the
end of the meeting Ms Van Dyk raised the plans in the sales team to
allow
preparation for the new financial year starting 1 October
2015. Mr Geldenhuys briefly mentioned to her that he was considering
some changes to the structure, but would let her know when he had
more details. It was then that he asked, in passing, whether
Ms Van
Dyk would consider another role elsewhere in the organisation to
which she replied ‘no’, as believed that she
was best as
a sales person.
[13]
On 10 September 2015, Mr Geldenhuys called a
planning meeting with the General Managers. Ms Van Dyk testified that
she had
enquired about whether there was a need to prepare for the
meeting; she was told “no, just bring an open mind”.
[14]
Ms Van Dyk’s evidence is that Mr Geldenhuys
commenced this meeting by stating that “I don’t know how
to say this,
but one of you has to go”, an utterance made
whilst standing. Then he expressed a view that Ms Friebe was the more
natural
salesperson and he looks to her for that.
[15]
Mr Geldenhuys denied having conducted himself in
the manner described above. He testified that he consulted with the
General Managers
on the proposed structural changes and that the
status quo
was not
something which would work in the future. He also considered a
possibility of creating two similar teams with both the
Hunters and
Carers reporting to the General Managers but that was discounted
because of the competition between the General Managers.
He then
proposed a merger of the two General Manager positions into one with
the incumbent managing both teams of Hunters and Carers.
Ms Van Dyk
testified that she proposed that a Service Level Agreement (SLA)
between the General Managers in order to address concerns
with regard
to the passing of clients between their teams.
[16]
The next day, Mr Geldenhuys called Ms Van Dyk to
inform her that the SLA proposal was not a viable option to address
the structural
issues. On 14 September 2015, Mr Geldenhuys held
separate meetings with each General Manager. It was Ms Van Dyk’s
testimony
that, given the manner in which Mr Geldenhuys had conducted
himself and having clearly stated that he preferred Ms Friebe, she
was of the view that the impending changes were based on personal
preferences rather than a business rationale. Hence, she had asked
him that if he didn’t want her in the sales environment, he
should make her an offer that she could not refuse.
[17]
Mr Geldenhuys testified that the next step was to
implement the structure and the issue at that time was who would be
the best candidate
for the new position. On 17 September 2015, he
authored a letter which was addressed to the General Managers but
furnished to Ms
Van Dyk on 18 September 2015. In that letter Mr
Geldenhuys addressed the following:
17.1.
The restructuring was as a result of the
operational and functional structure of the Sales Division,
particularly, of the Hunters
and Carers;
17.2.
Another consideration was the ongoing sustained
difficulties that had been experienced with regard to the lack of
cohesion and interpersonal
communication which have arisen and
continued to exist between the General Managers.
17.3.
Mr Geldenhuys’ original reservations were
reinforced in the facilitation that had been undertaken using the
external facilitator
and the correspondence he had received on the
issue from the General Managers.
17.4.
Therefore, Manco had come to a conclusion that
the two positions be merged into one General Manager to supervise
both Hunters and
Carers.
17.5.
That the General Managers would be the only
candidates for the position concerned given their experience and the
fact that it entails
consolidations and integration of their current
functions and duties.
17.6.
Invitation to express an interest by submitting a
detailed application, alternatively and without prejudice, opt for a
severance
voluntary package to be calculated in terms of the Avis
policy. The deadline for the applications was 25 September 2015. The
General
Managers were also encouraged to record any reservations or
concerns with regard to the proposed structure.
[18]
On 22 September 2015, Ms Friebe applied for the
new position of General Manager Sales: Gauteng. On the same day, Mr
Geldenhuys called
Ms Van Dyk and asked if she was comfortable with
being given a figure of the proposed severance package over the phone
and her
answer was ‘no’. It was his evidence that there
had been a severance package discussion with Ms Van Dyk between 17
and 25 September 2015.
[19]
Ms Van Dyk sought legal advice, so she testified.
On 23 September 2015, Mr Geldenhuys attempted yet again to discuss
the severance
package with Ms Van Dyk who was off sick. She was not
keen to do that as she was indisposed at that time.
[20]
On 25 September 2015, Ms Van Dyk’s
attorneys sent a letter to Avis raising concerns about the process
and sought to be favoured
with the documents that informed the
decision to restructure the Sales Division. In another communication
sent to Avis on the same
date, her attorneys made a separation offer
of about R4 000 000.00, “without prejudice”. Avis did not
respond to both
letters.
[21]
Mr Geldenhuys testified that when Ms Van Dyk
failed to submit her application on 25 December 2015, Avis was left
with no option
but to implement the structure as proposed and appoint
Ms Friebe. With regard to Ms Van Dyk, a retrenchment process was
triggered.
He conceded, however, that he was always alive to
the fact that one of the General Mangers was going to be redundant if
not successful
had both candidates applied.
[22]
On 1 October 2015, Ms Van Dyk was served with a
notification in terms of section 189(3) of the LRA, dated 30
September 2015 requesting
a consultation the following day. On the
same day, Ms Van Dyk received a letter informing her of the salary
increase for the following
year.
[23]
Indeed, on 2 October 2015 a consultation process
was held. Ms Van Dyk handed Messrs Geldenhuys and Van Zijl her
written responses
to the issues raised in the letter dated 30
September 2015. It is common cause that she did most of the talking
in that meeting.
The next consultation was scheduled for 8 September
2015.
[24]
Ms Van Dyk lodged a grievance the same afternoon,
on the advice of Pregashnie Naidoo
who was the
Organisational Development Manager at the time and currently the
Executive for Human Resources. The grievance submitted
on 2 October
2015 raised various historical concerns about Mr Geldenhuys’
behaviour and pertinently the manner in which he
conducted the
retrenchment process as a whole.
[25]
On 8 October 2015, a further consultation process
was held. The main issue discussed was the issue of severance pay.
Avis presented
an offer in a form of a severance agreement. Ms Van
Dyk requested time to take guidance from her legal advisors and
husband before
making any decision. She was granted the indulgence up
until the following Monday, 12 October 2015.
[26]
On the same day, Avis sent out a notice to all
its staff members titled “Restructure of the Avis Fleet Sales
Department”
which announced the departure of Ms Van Dyk from 12
October 2015. Ms Van Dyk testified that she deemed it unnecessary to
revert
back to Avis with regard to the final severance package offer
as promised; it was evident that Avis had already made a decision
to
dismiss her. On 13 October 2015, Ms Van Dyk was served with a formal
letter terminating her employment with Avis due to operational
requirements.
[27]
On 15 October 2015, Ms Van Dyk referred an unfair
dismissal dispute to the CCMA. The next day she informed Avis that
she did not
want to pursue the grievance as she had referred the
dispute to the CCMA.
Legal
principles and application in relation to
operational
requirements
[28]
One of the
issues for determination is whether there was a justifiable reason
for the retrenchment or whether the dismissal was
operationally
rational. In
BMD
Knitting Mills (Pty) Ltd v SACTWU,
[2]
the LAC
as per Davies, AJA (as he was then) stated that:
‘
The starting point is whether
there is a commercial rationale for the decision. But, rather than
take such justification at face
value, a court is entitled to examine
whether the particular decision has been taken in a manner which is
also fair to the affected
party, namely the employees to be
retrenched.
To this extent the court is entitled to enquire as to
whether a reasonable basis exists on which the decision, including
the proposed
manner, to dismiss for operational requirements is
predicated.
Viewed accordingly, the test becomes less deferential
and the court is entitled to examine the content of the reasons given
by
the employer, albeit that the enquiry is not directed to whether
the reason offered is the one which would have been chosen by the
court. Fairness, not correctness is the mandated test.’
(Emphasis added).
[29]
In essence, the enquiry on commercial rationality
is to determine whether retrenchment is properly and genuinely
justifiable by
operational requirements in the sense that it was a
reasonable option in the circumstances.
[30]
Section 213 of the LRA defines operational
requirements as requirements based on the economic, technological,
structural or similar
needs of an employer. In this case, there were
three reasons proffered by Avis for the structural change in the
Sales Division.
The Yellowwood recommendations; the discrepancies in
commission paid between the Hunters and Carers; and the conflictual
relationship
between the General Managers.
[31]
Mr Geldenhuys testified that by creating one
General Manager position, he wanted to drive and grow the business by
driving a new
brand culture that came out of the Yellowood project.
This evidence was corroborated by Mr Van Zijl. However, Mr Geldenhuys
conceded
under cross examination that there were no structural
recommendations or changes that emanated from the Yellowwood project.
In
fact, the Yellowwood, a branding company, was commissioned during
Mr Enslin’s time and he had commenced implementing their
recommendations.
[32]
It is common cause that the commission disparity
between the Hunters and Carers has been raised as a subject matter in
the conflict
between the General Managers for many years. Mr
Geldenhuys testified that having one General Manager was a perquisite
for the implementation
of a new commission structure as it would have
been difficult under the circumstances that prevailed at that time
because of the
General Managers’ interpersonal differences.
[33]
Ms Van Dyk was adamant that the interpersonal
differences did not affect the operations of the Sales Division as it
remained viable,
notwithstanding. She testified that the timing of
the restructuring was not supported by the reality that prevailed at
that time.
Mr Weyers’s conflict resolution process had had
positive effect, in her view. Also the structure was yielding result
and
her view was that ‘why fix it if it is not broken’.
She was not opposed to the structural changes but had a different
opinion and had expressed her misgivings with regard to the procedure
that had been undertaken by Avis.
[34]
It is a common that the source of conflict which
had arisen between the General Managers pertained to the handover of
clients once
the business had been duly secured by the Hunters,
supervised by Ms Friebe, to the Carers, supervised by Ms Van Dyk. It
is also
not in dispute that most of the debate and disagreements
between the General Managers stemmed from the extent, duration and
basis
in respect of which the Hunters would continue to share in the
commission which was earned, the proportion thereof and when,
ultimately,
the hunters would be required to let go of a particular
transaction.
[35]
To my mind, if the manner in which the hunting
and caring teams were constituted was the source of the conflictual
relationship
between the General Managers, then it would seem the
structural change was the only solution. Mr Geldenhuys testified that
having
both teams reporting under one General Manager has yielded the
result because the commission is now divided equally between the
teams.
[36]
I accept
that this may not be a typical reason in retrenchment cases but the
ultimate goal was to resolve structural challenges
that had been
affecting Avis’ operations. It is not for the Court to decide
whether it
was
the best decision under the circumstances, but only whether it was a
rational commercial or operational decision, properly taking
into
account what emerged during the consultation process as stated in
SA
Clothing and Textile Workers Union and Others v Discreto - A Division
of Trump and Springbok Holdings.
[3]
The
LAC stated further that:
‘
For
the employee fairness is found in the requirement of consultation
prior to a final decision on retrenchment. This requirement
is
essentially a formal or procedural one, but, as is the case in most
requirements of this nature, it has a substantive purpose.
That
purpose is to ensure that the ultimate decision on retrenchment is
properly and genuinely justifiable by operational requirements
or,
put another way, by a commercial or business rationale. The function
of a court in scrutinising the consultation process is
not to
second-guess the commercial or business efficacy of the employer’s
ultimate decision (an issue on which it is, generally,
not qualified
to pronounce upon), but to pass judgment on whether the ultimate
decision arrived at was genuine and not merely a
sham (the kind of
issue which courts are called upon to do in different settings, every
day). The manner in which the court adjudges
the latter issue is to
enquire whether the legal requirements for a proper consultation
process has been followed and, if so, whether
the ultimate decision
arrived at by the employer is operationally and commercially
justifiable on rational grounds, having regard
to what emerged from
the consultation process.”
[37]
Ms Van Dyk’s main bone of contention
pertained to the procedure that was followed leading to her
dismissal. It was contended
on her behalf that she was confronted
with a ‘
fait accompli
’.
[38]
Section 189(1)(d) of the LRA enjoins an employer
who contemplates dismissing one or more employees for reasons based
on the employer’s
operational requirements to consult with the
employees likely to be affected by the proposed dismissals or their
representatives
nominated for that purpose. Section 189(2) provides
that consulting parties must engage in a meaningful joint
consensus-seeking
process and attempt to reach consensus on the
following:
“
(a)
Appropriate measures –
i)
To avoid 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;
[4]
(c)
The severance pay for dismissed employees.
[39]
In
SASBO
v Standard Bank of SA,
[5]
in obiter, the Court stated that:
“
It is trite law that when
employees are confronted with a
fait
accompli
any subsequent
consultations may be fatally flawed.
[6]
A
fait accompli
in
the context of retrenchments manifests itself typically when an
employer takes unilateral action which forecloses the prospect
of
meaningful consultation on one or more of the issues in respect of
which it ought to consult. Under such conditions a …party
that
is asked to consult where the employer has taken such action may
rightly cry "foul".
[40]
In this
case, it is important to establish exactly when the consultation
process commenced. In
Discreto
[7]
the LAC
stressed that one of the requirements of a proper consultation
process is that consultation must precede a final decision
on
retrenchment because it is not easy to forestall what might emerge
from the consultation process and to what extent these results
might
influence a final decision. On the contrary, once a decision is taken
without consultation, any representation after the
event will be met
with the natural reaction to justify the original decision.
[8]
[41]
According to Avis, the consultation process
commenced on 10 September 2015 in a meeting called ‘planning
session’. It
is not in dispute that the General Managers, or at
least Ms Van Dyk, attended that meeting without a pleasure of knowing
what was
going to be discussed. In fact, she testified that her
attempts to solicit the agenda were unfruitful. Instead she was told
that
she must bring ‘an open mind’. This evidence was not
disputed.
[42]
The Manco’s decision of 7 April 2015 to
restructure the Sales Division was communicated to the General
Managers for the first
time in that meeting. Clearly, the
consultation commenced lurching. The discussion that ensued could not
have been meaningful since
Ms Van Dyk was not afforded an opportunity
to prepare her responses. There is no way that Ms Van Dyk could have
been in a position
to meaningfully engage on the options that were
presented as contended by Avis. Nonetheless, she did not shy away
from engaging,
for whatever reason, and put forward her views on the
proposed changes.
[43]
On 11 September 2015 Mr Geldenhuys telephonically
rejected Ms Van Dyk’s suggestion that an SLA be considered.
Hence, the meeting
of 14 September 2014 did not discuss much. The
severance package discussion was thrown in by Ms Van Dyk clearly to
tease Mr Geldenhuys
in order to get him to disclose his intentions.
But nothing turns on that as Avis had a duty to consult on
alternatives short of
dismissal and selection criteria, if at all.
That never happened.
[44]
On the contrary, Avis went ahead to implement the
new structure, so was Mr Geldenhuys’ evidence. As mentioned
above, his letter
of 17 September 2015 formally communicated that
decision in final terms. The General Managers were also told to apply
for the consolidated
position, supposedly as a selection criterion.
[45]
Mr Geldenhuys testified that the skill and
experience base of both General Managers was comparable. The new
position was just a
merger of the General Managers’ positions
with no additional responsibilities. In fact, the General Managers in
other regions
had always managed both teams of Hunters and Carers. Ms
Van Dyk herself was also managing Hunters outside Gauteng. No other
person
within the organisation was invited to apply.
[46]
Avis’
argument that the letter of 17 September 2015 did not reflect a final
decision on its part is untenable. Despite an
invitation for more
input from Ms Van Dyk on the process, her attempts to engage further
were ignored. Through her attorneys’
letter of 25 September
2015, she raised legitimate concerns about the consultation process
and what had emerged out of it at that
time. That was a correct
approach in view of
SASBO
.
There is no evidence that there were pressing issues that would have
made it difficult to extend the deadline for applications,
which was
25 September 2015. The Sales Division was doing well and the customer
feedback was positive at that time, this was Van
Dyk undisputed
evidence. I, therefore, align myself with the following sentiments
expressed by Van Niekerk J in
Van
Rooyen and Others v Blue Financial Services (South Africa) (Pty)
Ltd
[9]
:
‘
While from the perspective of
substantive fairness this court has recognised an employer’s
right to restructure for reasons
relating to profitability and
increased efficiency as opposed to reasons which threaten the
financial viability of the business,
it seems to me that in the
former case, the obligation to give serious consideration to
reasonable proposals made by employees
or their representatives,
especially in relation to alternatives to retrenchment and the
prospects of accommodation in alternative
employment is more onerous.
This is not a case where any delay in the consultation process would
have resulted in unsustainable
losses for the respondent, or which
might otherwise have justified bringing the consultation process to
an abrupt end.’
[47]
Even in this case, the consultation process came
to a rushed end as Avis went ahead and appointed Ms Friebe without
considering
Ms Van Dyk’s reservations.
[48]
Also, there was no meaningful endeavour on the
part of Avis to accommodate Ms Van Dyk in any alternative position.
The only time
the issue of an alternative position was casually
mentioned was before the letter of 17 September 2015. That discussion
could not,
in any way, be viewed as consultation on
meritorious
alternatives
to avoid dismissal. As it
turned out, even the promise of a position in Operations never
materialised. No other positions were ever
tabled for discussions
subsequently.
[49]
As mentioned above, seemingly having both teams
reporting under one General Manager has yielded the result. In my
view, if the option
of splitting the teams into two teams of both
Hunters and Carers reporting both General Managers was properly
considered, it would
have yielded the same result and avoided Ms Van
Dyk’s dismissal
[50]
The consultation meetings on 2 and 8 October 2015
were just a mere formality and could not have remedied procedural
defects. Even
at that time, Avis was oblivious to its obligation,
which was more onerous given the reason for the structural changes,
to consult
over alternative employment and by all means endeavour to
accommodate Ms Van Dyk. Mr Geldenhuys instead accused her of having
‘deselected
herself’ from the selection process by not
applying for the new position.
[51]
Overall, no
meaningful joint consensus-seeking process occurred and Avis is the
culprit.
[10]
Avis failed to
sufficiently consult on alternatives to retrenchment and selection
criteria; and failed to accommodate Ms Van Dyk
in an alternative
position. I am persuaded that Ms Van Dyk was indeed presented with a
fiat
accompli
.
For these reason, her dismissal was procedurally unfair.
Unfair
discrimination
[52]
Given the findings that I have come to above,
ordinarily it would not be necessary to deal with Ms Van Dyk’s
claim that she
was unfairly dismissed by Avis on the basis of unfair
discrimination based on conscience and belief in terms of section
187(1)
of the LRA. I do so, though, for completeness sake.
[53]
Ms Van Dyk pleaded in her statement of claim that
her dismissal resulted from a challenge and grievance lodged against
the Respondent’s
Business Development Executive, Mr Geldenhuys.
However, it was her evidence that she withdrew the grievance on her
attorneys’
advice because she had already referred a case to
the CCMA. Also the grievance was only lodged on 2 October 2015 and
formally on
6 October 2015. Mr Van Zijl testified that he did seek an
external person to attend to the grievance but that had to be
abandoned
due the withdrawal of the grievance.
[54]
Typically,
where it is common cause that there was a dismissal, the employer
bears the onus to prove that the dismissal was for
a fair reason
permitted in section 188 of the LRA. However, where an employee
alleges that a dismissal was automatically unfair,
it is incumbent
upon that employee to demonstrate,
prima
facie
,
the said claim.
[11]
[55]
In view of
the above, despite having no onus to prove the reason for her
dismissal, the applicant failed to discharge the evidential
burden by
placing sufficient evidence to show that the dominant or ancillary
reason for her dismissal was that the respondent discriminated
against her based on one or more of the listed grounds in terms of
section 187(1)(f).
[12]
Put differently,
the applicant has failed to show,
prima
facie
,
that ‘but for’ the grievance she had lodged, she would
not have been dismissed. If follows that Ms Van Dyk’s
claim
that her dismissal was automatically unfair must fail.
Relief
[56]
Since I have made a finding on procedure only,
the relief is only limited to compensation.
[57]
Ms van Dyk testified that she is currently
employed, a position she secured in August 2016 but is more junior in
level and she is
paid less than her previous position by half.
She had also spent her provident fund to finance the litigation
against the
company which had a gruelling impact on her personally.
[58]
On the other hand, Avis argued that it had
earnestly attempted to settle the matter to no avail. As such an
amount of R500 000.00
in lieu
of severance pay is placed in its attorneys’ trust account.
[59]
In arriving
at the amount of compensation Ms Van Dyk is entitled, I have
considered the magnitude of the procedural defects committed
by Avis,
particularly, and a compensation amount that is fair to both
parties.
[13]
Ms Van Dyk was
presented with a
fiat
accompli.
Avis efforts to comply with section 189 were extremely inadequate.
Even though Ms Van Dyk did not apply for the new consolidated
position of a General Manager, she testified that she was interested
but had genuinely raised concerns with the consultation process.
[60]
Also Ms Van Dyk’s stance during the
settlement discussions is understandable and no adverse inference
should be drawn against
her, especially now that she has successfully
vindicated her rights.
[61]
The exact amount Ms Van Dyk was earning is in
dispute. At the hearing of this matter, both counsels promised to
attempt to reach
census on this issue to no avail. Both parties were
accordingly requested to file supplementary heads of arguments in
this regard.
[62]
In her written submissions filed on 7 December,
Ms Venter for Ms Van Dyk, submitted her remuneration ration should be
calculated
as follows:
62.1.
Annual guaranteed pay of R1 240 726,
including the car allowance of R13 176.36 (calculated monthly at R103
393,83); plus
62.2.
An annualised aggregate commission of R357 524.40
(calculated monthly at R29 793,70).
[63]
The total annualised remuneration is R1 598
250.40 (calculated monthly at R133 187,53).
[64]
On the other hand, in his written submissions, Mr
Soldatos, for Avis, submitted that Ms Van Dyk’s remuneration
should be calculated
as follows:
64.1.
Annual cost to company package, including a car
allowance of R12 951.00, is R1 159 288.32; plus
64.2.
Monthly commission of R16 655.22 which is an
average figure of the commission paid to Ms Van Dyk during the three
months (13
weeks) prior to her dismissal.
[65]
The total annualised remuneration is R1 359
150.96.
[66]
Clearly the parties differ in terms of the
calculation of the car allowance and the average commission
components of Ms Van Dyk’s
total remuneration. The car
allowance figure provided by Ms Van Dyk is based on her pay slip.
While there is no evidence proffered
to support Avis’ figure.
Also, with regards to the calculation of the average commission, the
figure provided by Ms Van Dyk
includes the payment of an amount of
R18 393.00 for the commission that had been short paid in September
2015 and confirmed as
such by Mr Geldenhuys in his email dated 4
December 2015. As such, Avis’ explanation that this amount did
not form part of
Ms Van Dyk’s remuneration must be rejected.
[67]
I accept that Ms Van Dyk’s annual
remuneration is R1 598 250.40.
Costs
[68]
There is no reason why costs should not follow
the result. Ms Van Dyk was placed in an unenviable position where she
had to use
her provident fund to finance this litigation against
Avis, a big company, with better resources to resist her claim.
[69]
In the premises, I make the following order:
Order
1.
Ms Van Dyk’s claim that her dismissal was
automatically unfair is dismissed.
2.
The dismissal of Ms Van Dyk based on Avis’
operational requirements is procedurally unfair.
3.
Ms Van Dyk is awarded compensation of R1 331
875, 30 (One million three hundred and thirty one thousand eight
hundred and seventy
five rand and thirty cents.) which is equivalent
to 10 months’ remuneration calculated on the basis of the rate
of her annual
remuneration which is R1 598 250.40 (One million five
hundred and ninety eight thousand two hundred and fifty rand and
forty cents).
4.
Avis is to pay the costs of this litigation.
____________________
Nkutha-Nkontwana J
Judge
of the Labour Court of South Africa
Appearances:
For
the applicant:
Advocate T Venter
Instructed
by:
Bouwer Cardona Inc.
For
the respondent:
Mr A Soldatos
Attorney
from:
Fluxmans Incorporated
[1]
Act 66 of 1995 as amended.
[2]
[2001] 7 BLLR 705
(LAC) at para 19; see also
CWIU
and Others v Algrorax (Pty) Ltd
[2003] 11 BLLR 1081
(LAC) at paras 69 – 70.
[3]
[1998]
12 BLLR 1228
(LAC) at para 8.
[4]
Section 189(7) provides that ‘the employer must select the
employees to be dismissed according to the selection criteria
–
(a)
that have been agreed to by the consulting parties; or
(b)
if no criteria have been agreed, criteria that are fair and
objective.’
[5]
[2011] JOL 26928
(LC) at para 36.
[6]
See, for example,
SA
Clothing and Textile Workers Union and Others v Discreto – A
Division of Trump and Springbok Holdings
(1998)
19
ILJ
1451
(LAC);
General Food
Industries Ltd v Food and Allied Workers Union
(2004)
25
ILJ
1260
(LAC) [also reported at
[2004] JOL 12700
(LAC) – Ed];
National
Union of Mineworkers v De Beers Group Services
(
Pty
)
Ltd and Another
(2009)
30
ILJ
1880
(LC) [also reported at
[2009] JOL 23892
(LC) – Ed];
Robinson
and Others v Price Waterhouse Coopers
(2006)
27
ILJ
836
(LC) [also reported at
[2006] JOL 16362
(LC) – Ed], and
National Union of
Metalworkers of SA and others v Dorbyl Ltd and another
(2004)
25
ILJ
1300
(LC).
[7]
Supra
.
[8]
Supra
at para 9.
[9]
[2010] BLLR
1119( LC)
;(2010) ILJ 2735 (LC) at para 25.
[10]
See;
Johnson & Johnson
v Chemical Industrial Workers Union
(1999) 20
ILJ
89 (LAC) quoted with approval in
SASBO
supra
.
[11]
Kroukam
v SA Airlink (Pty) Ltd
(
2005)
26 ILJ 2153 (LAC) at para 27.
[12]
Kroukam
supra; see also
Van
der Velde v Business and Design Software (Pty) Ltd and Another
(
2006)
27 ILJ 1738 (LC.) at 1746G-1747F.
[13]
Van Rooyen
supra
;
See also
Fouldien and
Others v House of Trucks (Pty) Ltd
(2002) 23 ILJ 2259.