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[2018] ZALCJHB 129
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Sefularo v Nkomati Joint Venture (JS650/16) [2018] ZALCJHB 129 (20 March 2018)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Not of interest to other
judges
Case no: JS 650/16
In
the matter between:
BOITUMELO
SEFULARO
Applicant
And
NKOMATI
JOINT VENTURE
(a
partnership between African Rainbow
Minerals
Limited and Norslik Bickel Africa
(Pty)
Ltd)
Respondent
Heard:
22 February 2018
Delivered:
20 March 2018
Summary:
Labour Relations Act, 66 of 1995
:
Section 189A
large scale
retrenchments – Court lacking jurisdiction to determine
fairness of procedure followed –
Section 189(3)
notice to
managerial employee referring thereto – Employee recusing
himself and not consulting affected employees on
behalf of employer
after receipt of notice - Employee retrenched in context and as
part thereof: Newly created position
open to affected
managerial employees – Employee applying unsuccessfully –
Employee requesting training record of successful
candidate for trial
purposes – Employee contending can also perform duties of
position in pre-trial minute – Employer
submitting record
irrelevant – Record irrelevant in circumstances –
Effective application to compel dismissed.
JUDGMENT
LEKALE, AJ
Background and
introduction
[1] The applicant was
employed by the respondent as Superintendent: Employee Relations and
Contracts (SERC) when he was retrenched
on or about 15 April 2016
following an unsuccessful application by him for appointment into a
newly created position of Human Resources
Development Co-ordinator
(“HRD Co-ordinator”). He was initially employed as Human
Resources Superintendent on 2 March
2011 but was transferred to a new
position of SERC on 18 October 2013.
[2] The Human Resources
Development and Human Resources Superintendent positions later merged
into a new position of HRD Co-ordinator,
rendering the applicant’s
position redundant. The applicant was, on 10 February 2016, notified
in terms of
section 189(3)
of the
Labour Relations Act
(“the
LRA”) of the respondent’s intention to retrench him and,
as such, he excused himself from the
section 189
consultations that
he was involved in on behalf of the respondent in relation to
retrenchments pending at the relevant
time.
[3] He was kept informed
about the Commission for Conciliation, Mediation & Arbitration
(“the CCMA”) facilitated
consultation process involving
the National Union of Mineworkers (“NUM”) through
information sessions in which he indicated
to the respondent that he
was, as an managerial employee, not a member of the NUM and, as such,
not part of the
section 189(A)
facilitation process.
[4] The applicant felt
aggrieved by the dismissal and referred the same to the CCMA for
resolution. When the dispute remained unresolved
after an attempt at
conciliation he referred it to this court for adjudication in terms
of
section 191(5)(b)
of the LRA contending that the dismissal was
both procedurally and substantively unfair.
[5] The respondent
employer resists the claims and in its Statement of
Response,
inter alia
, contends that the court is
precluded by law to adjudicate the fairness of the procedure followed
in dismissing the applicant.
[6] In the pre-trial
minute the parties are
ad idem
that the manner in which the
selection criteria was applied is in dispute with the applicant
contending that somebody else should
have been retrenched in his
stead on the basis of Last In First Out (“LIFO”)
selection criterion and that he could
also perform the functions of
the newly created position of HRD Co-ordinator to which some other
person was appointed.
[7] On 19 February 2018
and in anticipation of the trial the applicant party requested,
inter
alia
, the curriculum vitae (CV) of such other person who was the
successful candidate for the HRD Co-ordinator position as well as her
training record. The respondent obliged with regard to the CV but
failed to provide the requested training record.
[8] The matter now serves
before me for trial purposes but at the outset of the proceedings the
parties pointed out that they have
issues of non-adjudicatability of
procedural fairness and failure to furnish the requested training
record to raise
in limine
.
[9] This judgment,
therefore, deals only with the preliminary issues so raised by the
parties respectively.
Issues for
determination
[10] The parties are
ante
omnia
at variance on whether or not the court lacks jurisdiction
to determine the fairness of the procedure followed in retrenching
the
applicant with the respondent contending that the dismissal took
place in the context or as part of large scale retrenchments in
terms
of
section 189A
of the LRA and, as such,
section 189
A (18) of the
LRA is applicable thereto.
[11] The parties are,
further, in dispute over whether or not the information requested by
the applicant relating to the qualifications
of the candidate who
successfully applied for the newly created position of HRD
Co-ordinator is relevant to the issue before the
court.
Contentions for and on
behalf of the parties
A.
Lack of jurisdiction
[12] Mr Van As for the
respondent submits,
inter alia
, to the effect that it is
patent from the
section 189(3)
notice issued to the applicant that
his retrenchment was part of large scale retrenchments in terms of
section 189A
of the LRA.
Section 189A
(18) of the LRA, therefore,
applies with the consequence that the court is precluded from
adjudicating the fairness of the procedure
followed. Insofar as the
applicant contends that he was not consulted he should have invoked
section 189
A (13) of the LRA for relief according to Mr Van As.
[13] Mr Mogane submits, on
behalf of the applicant,
inter alia
, to the effect that
section 189A
of the LRA is not applicable in the instant matter
because the applicant was not a member of NUM and should, as such,
have been
consulted personally as prescribed by
section 189(1)
of the
LRA.
[14]
It is true, for the
purposes of the instant matter, that
section 189A
of the LRA applies
where the employer, who employs more than 50 employees, contemplates
retrenching at least 10 employees out of
200 employees it employs.
[1]
[15]
It is, further,
correct that in large scale retrenchments the CCMA is obliged to
appoint a facilitator to assist the parties engaged
in consultations
if they so request.
[2]
[16]
It is, furthermore,
true that where the employer does not comply with a fair procedure in
effecting large scale retrenchments, the
consulting party
contemplated in
section 189(1)
of the LRA may approach the court for
an order,
inter
alia
,
compelling the employer to comply or interdicting and restraining
him, or restoring the status
quo
ante
or for compensation.
[3]
[17]
Section 189
A (18)
of the LRA, on its part, ousts the jurisdiction of the court as far
as procedural fairness is concerned in cases of large
scale
retrenchments. The “crawl-back” of jurisdiction is the
consequence of
section 189A(13)
which enables the aggrieved employee
to enforce compliance with a fair procedure before the dismissal or
to claim compensation
for unfair procedure even before dismissal.
[4]
[18] The parties are
effectively in dispute over whether or not
section 189A
of the LRA is
applicable in the instant matter insofar as the applicant party does
not dispute the effect of
section 189A(18)
of the LRA and contends,
in effect, that his dismissal was not part of large scale
retrenchments insofar as he was a managerial
employee and not a union
member.
[19] I am, however,
satisfied from the material properly before the court that the
applicant’s retrenchment took place in
the context of and as
part of large scale retrenchments contemplated in
section 189A
of the
LRA regard being had to
section 189(3)
notice issued to
him which referred to
section 189A
as well as the number of employees
likely to be affected. I am, further, persuaded that the applicant
was himself aware of the
applicability of the relevant section
insofar as he withdrew from the retrenchment process which he was
handling on behalf of the
respondent as soon as he learnt that his
position was likely to be affected by the retrenchment process. In my
view if the relevant
process was not applicable to him he would not
reasonably possibly have recused himself from the relevant process.
[20] The court, therefore,
lacks jurisdiction to determine the fairness of the procedure invoked
in effecting the dismissal
in casu.
B.
Application to compel
[21] The applicant
effectively seeks an order compelling the respondent to furnish the
training record of the candidate who was
appointed HRD Co-ordinator
following successful application and interview.
[22] The dispute between
the parties in this regard is limited to whether or not such
information is relevant to the issue with
the applicant contending
that he also could perform functions of the position in question. The
respondent, through Mr Van As, maintains
that the information
requested is irrelevant because the applicant effectively concedes
that the successful candidate has the qualifications
and skills to
perform such functions.
[23] The motivation
underlying the request for the information in question appears to be
the desire, on the part of the applicant,
to verify the
qualifications and/or skills of the successful candidate in relation
to the relevant position.
[24] As correctly
contended for the respondent party, the issue as to whether or not
the successful candidate has the minimum qualifications
and skills
for the relevant position is not before the court for determination
regard being had to paragraph 19.7.2 of pre-trial
minute signed and
submitted jointly by the parties.
[25] The information
requested is
stricto senso
not relevant to the issue before
the court in the light of the implicit concession made by the
applicant in the pre-trial minute
to the effect that he also could
perform the relevant functions.
[26] In conclusion I note
en passant
that the question as to the fairness of the
appointment of the successful candidate to the relevant position
probably constitutes
a distinct dispute which is not before the court
for determination. The situation would, most probably, be different
if the applicant
and such successful candidate were not required to
apply for the position in question and the relevant candidate was
simply offered
the position as an alternative to retrenchment. In the
instant matter it is evident that the appointment was made consequent
to
and on the basis of applications made.
Order
[27] In the result:
1.
The court lacks jurisdiction to determine the fairness of the
procedure followed
to effect the dismissal of the applicant;
2.
The application to compel is dismissed;
3.
Costs shall be costs in the cause.
____________________
LJ
Lekale
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant:
Mr C Mogane
Instructed
by:
Moshoana, Mabena Mogane Inc.
For
the Respondent:
Mr M Van As
Instructed
by:
Cliffe Dekker Hofmeyer
[1]
See
section 189A(1)
of the LRA.
[2]
See
section
189A(3)
and (4) of the LRA.
[3]
See
section
189A(13)
of the LRA and
Edcon
Ltd v Steenkamp & Others
[2017] ZALAC 81.
[4]
See generally
Edcon Ltd v
Steenkamp & Others
supra
.