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[2018] ZALCJHB 180
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Morapedi and Others v Enforce Security Services (JS370/15) [2018] ZALCJHB 180 (11 May 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no:
JS370/15
In
the matter between:
TALE
JULIUS MORAPEDI & OTHERS
Applicant
and
ENFORCE
SECURITY
SERVICES
Respondent
Heard
:
07 May 2018
Delivered
:
11 May 2018
Summary:
A referral in terms of which the applicants allege that they were
dismissed for operational reasons – this court retains
jurisdiction
to hear such disputes. Dismissal substantively fair but
procedurally unfair- compensation to be just and equitable. The
applicant
obtained alternative employment a day after their
dismissal. Held: (1) The dismissal is substantively fair but
procedurally unfair.
Held: (2) The respondent is ordered to pay to
the applicants’ compensation. Held: (3) No order as to costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
This is a referral in terms of
section 191 of the Labour Relations Act
[1]
(‘the Act’). The applicants (Julius Morapedi
(‘Morapedi’), Moningi Freddie, Thomas Rikhotso and Sam
Maila)
alleged that the respondent unfairly dismissed them for
operational reasons. At the outset the respondent contended that this
court
lacked jurisdiction. I issued an
ex
tempore
ruling that this
court had jurisdiction. The respondent contended that due to
termination of a contract with its client, it had
no other
alternative jobs for the applicants, accordingly, the dismissal was
fair.
Background
facts
[2]
The bulk of the facts in this matter are common cause. On 16 August
2014, the applicants entered into a one year fixed term
contracts of
employment with the respondent. The applicants were employed as
security guards and were posted at various sites owned
and controlled
by Eris Property Group – the respondent’s client.
[3]
On 1 September 2014, the
respondent’s client issued a notice of cancellation of services
at various sites, where the applicants
were assigned. In terms of the
notice, by 31 October 2014, the services would terminate. In terms of
clause 23.3
[2]
of the fixed term contracts, the applicants accepted that their
employment with the respondent was dependent upon the retention
by
the respondent of the client at whose premises the applicant would be
assigned.
[4]
On 28 October 2014, the respondent issued notices of termination to
the individual applicants. The relevant portion of the notices
read
thus:
“
As
per the Consultation Process, the client has terminated the Contract
being (Name of the site) managed by the Eris Property Group,
on
such basis, the Company does not have available sites to accommodate
you within the Leanership Contract and as such, have no
other
alternative
[3]
but to honour and effect the abovementioned contractual agreement”
[5]
Indeed, on 31 October 2014, the applicants were no longer employed by
the respondent. On 1 November 2014, they took up employment
with
another security company. The applicants referred an unfair dismissal
dispute to the Commission for Conciliation Mediation
and Arbitration
(‘CCMA’). On 22 April 2015, Commissioner P Botha issued a
ruling to the effect that the CCMA lacked
jurisdiction to entertain
the dispute since the parties agreed that the dismissal was based on
operational requirements and it
involved 20 employees.
[6]
On 20 May 2015, the applicants referred the dispute to this court by
way of a statement of case. The statement of case simply
stated that
the applicant is Tale Julius Morapedi and 19 others. However, there
was no list of the alleged 19 others. Instead a
number of
confirmatory affidavits were annexed to the statement of case.
[7]
On the day of trial only four applicants appeared and presented their
case. The other individuals who submitted confirmatory
affidavits
were not in attendance. Accordingly, I ruled that their respective
cases cannot be proceeded with due to non-appearance.
Common
cause issues
[8]
It was common cause that on 31 October 2014, the respondent
terminated the contracts of the applicants. It was also common cause
that on 1 November 2014, the applicants were employed by the
respondent’s successor, being the security provider who secured
a contract with Eris Property Group and who replaced the respondent
at the sites at which the applicants had been posted.
Evidence
Led
[9]
Since dismissal was not placed in issue, the respondent bore the
onus
and the duty to begin. The respondent chose to call one witness –
Wayne Hammond (‘Hammond’). He testified that
he is
employed as a General Manager in an entity known as Accelerated
Services. This entity apparently bought the business of the
respondent. At the time of the dismissal he was employed by the
respondent and in fact he is the one who effected the dismissal
of
the applicants. He testified that at the time of dismissal the
applicants were on probation. He confirmed the termination of
services by the client of the respondent. As to the reasons for the
dismissal of the applicants, he testified that due to the termination
of contract with their client, the respondent had no alternative work
for the applicants. Since the applicants were on probation
he thought
their contracts can be terminated by giving one-day notice.
[10]
For the applicants only Morapedi testified. He confirmed that on 28
October 2014, he received a notice of termination. As of
1 November
2014 he was employed by another company at the same site he was
posted at during his employ with the respondent and
continued to
receive a salary.
Evaluation
[11]
In this matter, the respondent chose not to rely on the automatic
termination clause. Instead the respondent opted to terminate
using
operational reasons. It is operational reasons where an employer has
no available sites to accommodate employees. Differently
put such an
employer has excess staff. In terms of section 192 of the Act, the
onus
is on the respondent to prove that the dismissal was
fair. In terms of section 188, a dismissal is fair if it is for a
fair reason
and effected in accordance with a fair procedure.
[12]
Dismissing an employee for operational reasons is fair. I am
satisfied that on the uncontested evidence, the respondent no
longer
had work following the termination of the service contract. It is
uncontested that dismissing the applicants was the only
viable option
available to the respondent. Accordingly, the dismissal of the
applicants was substantively fair.
[13]
I am not satisfied that the dismissal was procedurally fair. There
was no attempt to comply with the provisions of section
189 of the
Act. Other than testifying that he effected the dismissal, Hammond
did not testify of any process that he followed to
effect such a
dismissal. The fact that the applicants were on probation, is of no
moment. They were not dismissed for incapacity
but for operational
requirements. As such, it is mandatory for the respondent to have
complied with the provisions of section 189
of the Act. Failure to do
so renders the dismissal procedurally unfair. I therefore conclude
that the dismissal of the applicants
is procedurally unfair.
The
issue of the relief
[14]
Since the dismissal is found to
be procedurally unfair only, the only relief to afford the applicants
is that of compensation
[4]
.
In terms of section 194 (1) of the Act, compensation to be awarded
must be just and equitable. In
Arb
Electrical Wholesalers (Pty) Ltd v Hibbert
[5]
,
the Labour Appeal Court
(‘LAC’), per Waglay JP, had the following to say about
compensation:
[22] The
compensation that an employee, who has been unfairly dismissed or
subjected to unfair labour practice,
may be awarded is not aimed at
making good the patrimonial loss that s/he has suffered. The concept
of loss or patrimonial loss
may play a role to evince the impact
of the wrong upon the employee and thus assists towards the
determination of appropriate compensation,
but compensation under
the LRA is a statutory compensation and must not be confused with a
claim for damages under the common law,
or a claim in delict. Hence,
there is no need for an employee to prove any loss when seeking
compensatory relief under the LRA.
[15]
The court went further to state that compensation under the Act is a
solatium
, which equates to payment for the impairment of the
employee’s dignity. The individual applicants were humiliated
in that
they were not afforded their rights under section 189 of the
Act. The wrong is not seriously impactful in that the applicants did
not suffer any financial loss. However, such does not mean that
solatium
must not be paid. The LAC in
Arb supra
,
further said:
[24] …The
solatium
must be seen as a monetary offering or pacifier to satisfy the hurt
feeling of the employee while at the same time penalising the
employer.
[16]
Accordingly, the applicants before me are entitled to a
monetary offering. In my view what is just and equitable in the
circumstances
is payment of an equivalent of two months’ salary
to each of the applicants. Before I conclude, it is befitting for me
to
deal with the “claims of the other applicants”.
Morapedi indicated that he was appearing on behalf of the other
applicants
who were not in court. Representation in the Labour Court
is regulated by section 161 of the Act. Morapedi is not one of the
mentioned
representatives. Accordingly, the other applicants, if
indeed they were parties, ought to have appeared in person. If a
party fails
to appear in person his or her case cannot be proceeded
with.
Order
[17]
In the results, I make the following order:
1.
The dismissal of only the applicants
mentioned in this judgment is substantively fair but procedurally
unfair;
2.
The respondent is ordered to pay to each of the
individual applicants an amount equivalent to two months’
salary as compensation
less the statutory deductions;
3.
There is no order as to costs.
_______________________
GN
Moshoana,
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicants
: In Person
For
the Respondent
: Advocate E Coleman
Instructed
by
: Clifford Levine Attorneys, Johannesburg.
[1]
66 of 1995, as amended.
[2]
Automatic termination clause. Recently the LAC found that such
clauses are lawful
- Enforce
Security Group v Fikile and others Case DA24/15
delivered on 25 January 2017.
[3]
Own underlining and emphasis
[4]
Section 193 (2) (d) of the Act.
[5]
[2015] 11 BLLR 1081
(LAC).