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[2018] ZALCJHB 139
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South African Transport and Allied Workers Union and Others v Sihlangene Security and Cleaning CC and Another (JS79/11) [2018] ZALCJHB 139 (27 March 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
Not
Reportable
Not
of interest to other judges
Case
No: JS 79/11
In
the matter between:
SOUTH
AFRICAN TRANSPORT AND ALLIED
WORKERS
UNION
First
Applicant
NYOBANGOSANA,
S AND 38 OTHERS
Second and Further Applicants
and
SIHLANGENE
SECURITY & CLEANING CC
First Respondent
ENLIGHTENED
SECURITY FORCE (PTY) LTD
Second Respondent
Heard:
26 and 27
October 2017
Delivered:
27 March 2018
Summary:
Unfair dismissal action – first respondent following no
procedure prior to dismissing second to further applicants
and
failing to prove that it dismissed them for a fair reason based on
operational requirements. Second to further applicants’
dismissals declared procedurally and substantively unfair and maximum
compensation awarded together with notice pay, severance
pay and
costs.
JUDGMENT
BARNES
AJ
Introduction
[1.]
The second to further
applicants were employed by the first respondent as security officers
until their dismissals on 31 August
2010. They are members of the
first applicant, the South African Transport Workers Union
(“SATAWU”). They will, in
this judgment, be referred to
as “the applicants”.
[2.]
The first respondent
was contracted to provide security services to the Johannesburg
Metropolitan Police Department (“JMPD”).
The applicants
were employed as security officers at the JMPD’s Region C in
Roodepoort.
[3.]
In August 2010, the
JMPD terminated its contract with the first respondent and contracted
the second respondent to provide the security
services previously
provided by the first respondent. The applicants were dismissed,
pursuant thereto, on 31 August 2010.
[4.]
In their Statement of
Claim, the applicants sought an order declaring that their contracts
of employment with the first respondent
were transferred to the
second respondent in terms of section 197 of the Labour Relations Act
66 of 1995 (“the LRA”)
with effect from 1 September 2010.
In the alternative, they sought an order declaring that their
dismissals by the first respondent
were substantively and
procedurally unfair and awarding them just and equitable compensation
as well as notice pay.
[5.]
At the commencement of
the trial, Mr Makhura, who appeared for the applicants, stated that
they abandoned their primary relief and
pursued their alternative
relief only,
viz
an order declaring their dismissals unfair together with the award of
compensation and an order for the payment of notice pay.
In addition,
Mr Makhura moved for an amendment to the Statement of Claim to
include a prayer for severance pay. The amendment was
granted.
[6.]
There was initially a
dispute between the parties as to whether the applicants’
employment contracts contained a provision
linking the duration of
their employment to the first respondent’s contract with the
JMPD. The contracts of employment which
formed part of the discovered
documentation contained no such provision and Mr Mngoma, who gave
evidence on behalf of the first
respondent, ultimately could not
dispute that the applicants were employed on a permanent, indefinite
basis. This judgment will
accordingly proceed on the basis that the
applicants were permanent employees.
The
Evidence
[7.]
The second respondent
did not participate in the trial.
[8.]
The first respondent
and the applicants each led one witness. The first respondent led the
evidence of Mr Mngoma, its financial
manager. The applicants led the
evidence of one of their number, Mr Molose, a SATAWU shop steward at
the time of the dismissals.
[9.]
It is convenient to
begin with the evidence of Mr Molose.
Mr
Molose
[10.]
Mr Molose commenced
employment with the first respondent on 27 July 2008.
[11.]
He became a SATAWU shop
steward, and together with others, raised a number of worker
grievances with the first respondent’s
management. These
pertained
inter alia
to alleged illegal deductions from workers’ salaries and
alleged non-payment of annual leave pay, sick leave pay and bonuses.
[12.]
On 10 June 2017, SATAWU
shop stewards held a meeting with the first respondent’s
management in order to discuss the above
grievances. Mr Molose was
present.
[13.]
At the meeting, the
first respondent stated, in passing, that its contract with the JMPD
had been terminated in April 2010 and was
running on a month to month
basis.
[14.]
On 17 June 2017, a
further meeting was held between SATAWU and the management of the
first respondent to discuss the grievances.
Mr Molose was present.
[15.]
On 27 August 2010, a
written agreement was concluded between SATAWU and the first
respondent which provided as follows:
“
We
hereby declare that on 27 August 2010 a meeting was held at
Sihlangene Security & Cleaning Offices no. 50 Douglas Street,
Horizon View, Roodepoort, 1725 which started at 09H00 between the
Sihlangene Security and Cleaning management and SATAWU union
officials.
The following issues were discussed:
1.
Illegal deductions from
employees.
2.
Annual leave pay.
3.
Sick leave payment.
4.
Bonuses.
During the discussion it was agreed
that the company will comply with the demand raised by the Union that
all the above mentioned
will be rectified including payment of 75% of
bonuses, sick leave and annual leave to those who will be leaving the
company and
the rest will be paid at the end of September 2010.”
[16.]
On Monday, 31 August
2010, Mr Molose and the other applicants reported for parade as they
did at the beginning of every shift. They
were greeted by new
personnel wearing new uniforms who informed them that they were
employees of Enlightened Security (Pty)
Ltd, the second respondent,
which had taken over the first respondent’s contract with the
JMPD.
[17.]
Mr Molose approached
one of the supervisors, Mr Moletsane, to find out what was going on.
Mr Moletsane stated that he had been given
a list of the first
respondent’s employees who were to be escorted to work at a new
site in Randburg. Mr Moletsane stated
that the applicants were not on
the list.
[18.]
Mr Molose then
approached Mr Pheeha and Mr Mudua in the first respondent’s
human resources department. They informed Mr Molose
that the first
respondent’s contract with the JMPD had been terminated. They
informed Mr Molose, as Mr Moletsane had done,
that there was a list
of the first respondent’s employees who were to work at the new
sites and that the applicants were
not on the list.
[19.]
The applicants were not
permitted to provide their services to the first respondent on 31
August 2010 and were effectively dismissed
on that day.
[20.]
The applicants received
no written notice of the termination of their services. Nor did they
receive notice pay or severance pay.
[21.]
The first respondent
failed to honour the settlement agreement concluded with SATAWU on 27
August 2010.
[22.]
In cross examination,
it was put to Mr Molose that the termination of the JMPD contract had
been discussed with SATAWU at the meeting
of 10 June 2010. Mr Molose
repeated his evidence that the first respondent had stated in passing
at that meeting that the contract
had been terminated in April 2010
and was running on a month to month basis. The applicants were not,
however, informed of the
implications of this for them. The first
indication the applicants had that the contract had been terminated
and that they were
to be dismissed was when they reported for parade
on 31 August 2010.
[23.]
I turn now to consider
the evidence of Mr Mngoma, on behalf of the first respondent.
Mr
Mngoma
[24.]
Mr Mngoma commenced
employment with the first respondent as its financial manager in
January 2010.
[25.]
He was aware that the
JMPD terminated its contract with the first respondent. He could not
say however when notice of such termination
was given.
[26.]
He was not present at
the meetings held between SATAWU and the first respondent’s
management on 10 or 17 June 2010. He accepted,
based on the reports
received from his managers and the minutes of those meetings, that
their purpose was to discuss the grievances
raised by SATAWU.
[27.]
He was not party to the
conclusion of the agreement between SATAWU and the first respondent
on 27 August 2010. He could not say
whether the first respondent had
honoured the agreement.
[28.]
He testified that as a
result of the termination of the JMPD contract, the applicants were
dismissed “for financial reasons.”
[29.]
He testified that the
applicants were given notice of the termination of their employment
but could not say when. When it was put
to him in cross examination
that the applicants had received no notice of the termination of
their employment, he stated that he
could not dispute this.
[30.]
The applicants’
version of what transpired on 31 August 2010 was put to Mr Mngoma in
cross examination. He stated that he
could not dispute it as he had
not been there.
[31.]
He testified that he
could not say whether the applicants had received termination
letters. Nor could he say whether they had received
notice pay or
severance pay.
[32.]
Mr Mngoma was
questioned in cross examination about the first respondent’s
staff complement after the applicants’ dismissal.
He confirmed
that the first respondent retained employees after 1 September 2010.
When asked how many, he answered that he could
not give a figure and
could only say that it was less than it had been during the currency
of the JMPD contract.
[33.]
Mr Mngoma also
testified that on 31 August 2010 some of the first respondent’s
employees were transferred to Sihlangene Business
Enterprises CC to
work as security officers. He confirmed under cross examination that
this is a close corporation which has the
same members as the first
respondent, shares the first respondent’s human resources
function and operates from the same premises
as the first respondent.
[34.]
When asked to explain
the basis for some of the first respondent’s employees being
transferred to Sihlangene Business Enterprises
and others not, Mr
Mngoma stated that some sites were high risk and required security
officers to carry firearms and some employees
were not licensed to do
so. He did not elaborate further.
Assessment
of Evidence
[35.]
It
is trite that in dismissal proceedings, the onus is on the employer
to show that the dismissal was fair.
[1]
[36.]
It is apparent from the
evidence set out above that Mr Mngoma had no knowledge of key facts
and did not present a clear version
on behalf of the first
respondent. Furthermore, and importantly, Mr Mngoma did not dispute
Mr Molose’s version as to what
transpired on 31 August 2010.
[37.]
As far as procedure is
concerned, the first respondent sought to suggest that the
termination of the JMPD contract was discussed
with SATAWU at the
meetings held on 10 and 17 June 2010. Mr Mngoma was however not
present at either of those meetings. Mr Molose,
who was present at
the meetings, testified that their purpose was to discuss the
grievances raised by SATAWU and that the first
respondent merely
mentioned in passing that the JMPD contract had been terminated in
April 2010 and was running on a month to month
basis. Mr Molose’s
evidence in this regard is borne out by the minutes of those
meetings.
[38.]
Mr Mngoma testified
that the applicants received notice of the termination of their
employment but could not say when. It was put
to Mr Mngoma in cross
examination that the applicants received no such notice and that they
learnt of the termination of their
services for the first time when
they reported for parade on 31 August 2010. Ultimately, Mr Mngoma
conceded that he could not dispute
this version. It must therefore be
accepted.
[39.]
In the result no
procedure whatsoever was followed by the first respondent prior to
dismissing the applicants. The first respondent
did not even give the
applicants reasonable notice of the fact that it intended to
terminate their services. The dismissals of
the applicants were
manifestly procedurally unfair.
[40.]
As far as substance is
concerned, Mr Mngoma testified that as a consequence of the
termination of the JMPD contract, the applicants
were dismissed “for
financial reasons.” He failed, however, to substantiate this.
In the light of Mr Mngoma’s
evidence that the first respondent
retained employees after 1 September 2010 and that some of the first
respondent’s employees
were transferred to Sihlangene Business
Enterprises CC to work as security officers, it is by no means clear
that the applicants
could not have been accommodated, notwithstanding
the termination of the JMPD contract. The first respondent failed to
lead evidence
to demonstrate, why, despite these facts, the
applicants’ dismissals were necessary for operational reasons.
In the circumstances,
the first respondent failed to discharge its
onus of proving that the applicants’ dismissals were
substantively fair.
[41.]
The first respondent’s
conduct towards the applicants in this matter was egregious. Despite
seeking to justify the applicants’
dismissals on operational
grounds, it followed no procedure and gave the applicants no notice
whatsoever of its intention to terminate
their services.
[42.]
Mr Molose’s
testimony that the first respondent implemented a pre-determined list
of those who were to stay and those who
were to go was undisputed by
Mr Mngoma. While Mr Mngoma testified that security officers at
certain sites were required to carry
fire arms, his evidence in this
regard was vague and not explicitly linked to the list. In presenting
its case in Court the first
respondent made no real attempt to
explain or justify the list. In the absence thereof, the list smacks
of arbitrariness.
[43.]
In these circumstances,
the applicants are entitled to the maximum compensation permitted by
law.
[44.]
The applicants contend
that they were not paid notice pay or severance pay. The first
respondent did not dispute this either.
[45.]
There is no on-going
relationship between the parties. I do not see any other reason in
law or fairness why costs should not follow
the result and none was
suggested in argument.
[46.]
I accordingly make the
following order:
Order
1.
The dismissals of the
second and further applicants are declared to be substantively and
procedurally unfair.
2.
The first respondent is
ordered to pay each of the second and further applicants an amount
equivalent to 12 (twelve) month’s
remuneration calculated at
the individual’s rate of pay on the date of dismissal, within
one month of the date of this judgment.
3.
The first respondent is
ordered to pay each of the second and further applicants notice pay
and severance pay as prescribed by law.
4.
The first respondent is
to pay the applicants’ costs.
________________________
Heidi
Barnes
Acting
Judge of the Labour Court
Appearances:
For
the Applicants:
Mr M Makhura of Cheadle Thompson and Haysom Inc
For
the First Respondent: Mr T Serage of TM Serage Attorneys
[1]
Section 192
of the
Labour Relations Act 66 of 1995
.