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[2018] ZALCJHB 226
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Association of Mineworkers and Construction Union and Others v Tanker Services (JS148/16) [2018] ZALCJHB 226; (2018) 39 ILJ 2265 (LC) (7 June 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE NO: JS 148/16
In the matter between:
ASSOCIATION OF MINEWORKERS
AND CONSTRUCTION
UNION
1
st
Applicant
MASHIANE & 30
OTHERS
2
nd
& further Applicants
And
TANKER SERVICES (PTY)
LTD
Respondent
Hearing: 21 May 2018
Heads of argument filed: 4 June
2018
Judgment delivered: 7 June
2018
JUDGMENT
VAN
NIEKERK J
[1] The respondent operates a fleet of
vehicles in the road transport sector, transporting chemicals and
other specialised goods.
In September 2015, the respondent retrenched
29 employees, including the second and further applicants (the
employees). The applicants
contend that the employees’
dismissal was substantively and procedurally unfair.
[2] The consultation process that
preceded the disputed dismissals commenced on 1 July 2015, when the
respondent issued a notice
in terms of s 189(3) of the Labour
Relations Act (LRA) advising the first applicant (the union) and two
other trade unions (SATAWU
and MTU) of a contemplated retrenchment.
The notice stated, amongst other things, that the respondent was
…
currently
in the process of re-assessing and reviewing its operational
structure and considering how best to improve and adapt its
business
structure to meet the company’s operational and business needs
and requirements. As part of this process, the companies
contemplating restructuring its business due to various compelling
reasons…
[3] The notice goes on to record that
the reasons for the proposed restructuring:
The
respondent has experienced huge reduction volumes during the 2014/15
financial year. Revenue generated and profit has been affected
negatively by this trend;
The
respondent has further lost big share on its H & K contract
coupled with low volumes that have been experienced; and
The
unfavourable market condition in South Africa has consistently made
it hard for the respondent to achieve its financial budget
is
approved and demanded by the shareholders.
[4] It appeared at that stage that 31
employees may potentially be affected as a result of the proposed
restructuring. These employees
were employed in various positions in
both the Germiston and Durban regions, most of them working either in
the wash bay or maintenance
departments. Further, the parties agree
that the notice states that ‘
it is intended that the
consultation process will commence on 1 July 2015 and will be
finalised by 31 July 2015 and it is proposed
that any notice of
termination of employment be given with effect from 1 August 2015
’.
[5]
Letters of termination of employment dated 28 September 2015 were
issued to the affected employees. The union contested the
fairness of
the dismissal and referred a dispute to the CCMA. The dispute was
conciliated on 8 January 2016 and a certificate of
non-resolution
issued on the same date.
[6] The pre-trial minute lists the
facts in dispute. In summary, these relate to the substantive
fairness of the dismissal (the
need to retrench) and procedural
fairness in the form of what might be referred to as the quality of
the consultation process.
Specifically, the court is asked to decide
whether the consultation meetings on 12 July 2015, 22 July 2015 and
26 August 2015 concerned
only purely administrative matters, whether
the consultation process complied with the requirements of s 189,
whether the respondent
furnished the union with documentation that
had been requested, whether the decision to dismiss the employees was
a
fait accompli
, whether the respondent failed or refused to
allow the union an opportunity to make representations on topics on
which the parties
ought to have consulted, and whether the union was
provided with a sufficient opportunity to present proposals on
alternatives
to retrenchment, selection criteria and the like. In
essence, the respondent’s defence is that there were
substantively good
reasons to retrench and that it consulted properly
with the union as required in terms of the Act.
[7] The respondent’s first
witness, Mr Lucky Kolobe, the human resources director for
specialized freight, testified that
consequent on the issuing of the
s 189(3) notice, the respondent’s intention was to conduct
separate consultation meetings
in Durban and Germiston. At the first
consultation meeting, held in Germiston on 13 July 2015, the union’s
representative
made a proposal that a single consultation process be
conducted in respect of both operations. The management team agreed
and the
meeting was adjourned.
[8] The second consultation meeting
was held in Durban on 22 July 2015. The minute of that meeting
records an agreement that the
consultation processes be combined and
further, that the respondent was requested by Mr Albert Masuku, the
union’s regional
organiser, to approach the CCMA and to request
that a facilitator be appointed. Although this is not reflected in
the minute, Kolobe
says that he explained that the proposed
retrenchment was of a small scale and that the CCMA would not appoint
a facilitator since
the proposed retrenchment did not trigger the
provisions of s 188A. Nevertheless, on the same day, Kolobe addressed
a request to
the CCMA to appoint a facilitator.
[9] To this extent, the first two
meetings largely concerned matters of an administrative nature.
Further, substantive information
was provided by Kolobe who testified
that he advised the meeting that 17 employees from the KwaZulu Natal
region and 14 from Germiston
were likely to be affected by the
proposed retrenchment. He stated that he would also be in
consultation with group companies to
seek alternative employment for
affected employees and that the respondent was planning to finalise
the consultation process by
31 July 2015.
[10]
Kolobe testified further that after the second consultation meeting,
he drafted a letter, sent to union officials on 5 August
2015, in
which the state of affairs as at that date was captured. The letter
records what transpired at the meeting held on 22
July 2015. The
letter further records that the meeting decided that AMCU and SATAWU
had agreed that the consultation processes
ought to be combined and
the meetings held in KZN, because most of the employees affected by
the proposed retrenchment were based
there. Further, the letter
records that the unions proposed that the respondent invite the CCMA
to facilitate the process and that
a request was duly made. The
letter records that both unions agreed that the respondent could
engage employees likely to be affected
by placing them within the
company or group in an attempt to reduce the number of employees
affected by the proposed retrenchments
and to this end, group
companies would be informed. Finally, the letter noted that a
response had been received from the CCMA on
30 July 2015 stating that
the CCMA had declined to provide a facilitator, on the basis that s
189A did not apply to the proposed
retrenchment. The next meeting was
proposed for 11 August 2015 in Durban.
[11] Kolobe testified that the union
did not respond to this letter and at 21h00 on the night of 10 August
2015, he sent an email
recording this fact and advising the unions
that to avoid fruitless expenditure, he had cancelled his flight to
Durban. There was
some criticism of Kolobe that he had cancelled the
meeting on short notice, but the reality was that not having a
response to his
proposal, there would have been little point for him
to travel to Durban for an unconfirmed meeting.
[12] A further meeting date of 14
August 2015 was proposed. That date was not suitable for parties
concerned and on 17 August 2015,
union officials were advised that
Kolobe had proposed 24 August 2015 for a ’final consultation
meeting’, to be held
in Durban. On 18 August 2015, SATAWU
confirmed that it would attend the meeting.
[13] The third consultation meeting
duly took place on 24 August 2015, in Durban. The meeting commenced
late, on account of a work
stoppage at the depot. Kolobe testified
that he handed out a pack that contained the minutes of previous
meetings, the letter from
the CCMA and a summary of the consultation
to that point. He noted that after having circulated these documents
to union officials
via email, no response had been received from
either SATAWU or AMCU. Only one shop steward, a Mr Sengane, is
recorded as having
stated that he had not received the documents and
was unaware of the of the proposed meeting date. Kolobe testified
that he advised
the meeting that he was under pressure to finalise
the consultation process. It was finally agreed that a consultation
meeting
would be held on 26 August 2015 in Germiston ‘to
resolve the issue’ and logistical arrangements for attendance
at the
meeting were agreed.
[14] On 26 August 2015, the fourth
consultation meeting was held at the Germiston depot. Kolobe
testified that the minutes of previous
consultation meetings were
distributed. Thereafter, Kolobe stated that he advised the meeting
that he confirmed that only two departments
were affected, those
being watched by maintenance, and that of the company’s 929
employees, only 31 employees affected. He
stated further that the
reasons for the proposed retrenchment were reiterated and that the
reason for retrenchment in so far as
the maintenance and wash bay
departments were concerned were elaborated on by line managers. He
advised the meeting that managers
would also be affected by the
proposed redundancy. Kolobe testified that he advised the meeting
that the respondent had hoped to
have completed the restructuring
exercise by 31 July 2015 but on account of the postponement in
consultation meetings, this date
been extended to 30 September 2015.
The minute of the meeting records that Kolobe advised the meeting of
the proposed severance
package, and of the respondent’s
intention to assist affected employees in relation to provident fund
payments, unemployment
insurance fund payments and to issue good
references and certificates of service. Kolobe testified that he also
advised the meeting
that re-employment would be considered should
business pick up again, and that preference would be given to
retrenched employees.
He stated that he would make available a
consolidated vacancy report and set up voluntary severance packages.
The minute records
the Masuku stating that he wanted a list of all
employees by service provided, grading et cetera, and that he also
questioned the
reasons for the retrenchment. Kolobe stated that he
undertook to provide the quarterly financials to the unions.
[15] It was agreed that the next
meeting would be held on 18 September 2015 in Durban. Prior to the
meeting, on 7 September 2015,
Kolobe addressed an email to the union
officials to which he attached minutes of the meeting held on 26
August 2015, a list of
vacancies, a list of employees and a
spreadsheet showing employees likely to be affected, based on LIFO.
He recorded further that
what were referred to as the ‘wash bay
financials ‘would be made available by the financial director.
On 8 September
2015 the HR officer based in Durban addressed an email
to line managers attaching documents that were attached to Kolobe’s
email sent the previous day, with the request that the documents be
distributed to shop stewards and that they be reminded of the
meeting
scheduled for 18 September 2015.
[16] The minutes of the fifth
consultation meeting held on 18 September 2015 reflect that the
SATAWU shop stewards from Germiston
were not in attendance. The
minutes record that Kolobe advised the meeting that the consultation
process had already been delayed
and that its completion was overdue.
He recorded that he had a mandate to conclude the consultation
process. By this stage, none
of the union consulting parties could
have been under any illusion about the respondent’s concerns
regarding the delays in
the process. The SATAWU representative stated
that they required to establish why their representatives from
Germiston were not
present and that in the circumstances, they would
be leaving the meeting, which they then did. The meeting continued
with representatives
from the union, who at some point in the meeting
advised that they needed to consult with and obtain legal advice from
the union’s
legal officer on whether or not to proceed.
[17] Kolobe’s evidence was that
he stated that he was willing to meet on 21 or 22 September 2015 to
finalise the process.
After a caucus, the union representatives
stated that the legal officer would only be available on 28 September
2015 to meet with
them and proposed that the next meeting be held on
30 September 2015. Kolobe stated that the respondent was unable to
wait for
that long since the consultation process had already
extended for some 60 days beyond the intended completion date, and
that notices
would be issued on 25 September 2015 to all affected
employees. The respondent would issue a draft memorandum to which the
union
would be invited to respond by no later than 21 September 2015.
The minute of the meeting records that after union expressed the
wish
to consult with their legal official and before they caucused, Kolobe
advised the meeting that the management would be willing
to meet on
21 or 22 September ‘to finalise the process’. This
position was reiterated when the union returned from
the caucus to
advise that the legal representative was available only on 28
September 2015. The unions’ case as pleaded is
that the
respondent had created an impression that there would be a meeting on
30 September; the union’s only witness alleged
that an
agreement to that effect had been reached. I deal with this factual
dispute below.
[18] On 21 September 2015, Kolobe
addressed a letter to all union officials. In the letter, he
summarised the process that had been
undertaken, as well as the
issues discussed at the meeting of 18 September 2015. He recorded
that s 189 (3) letters had been sent
to all parties on 1 July 2015,
the first meeting held in Germiston on 13 July 2015, the next meeting
in Durban on 22 July 2015,
as well as a summary of all issues agreed
on at this meeting recorded in his letter dated 5 August 2015. He
also recorded the proposal
for a follow-up consultation meeting on 11
August 2015 and the union’s failure to respond to this
invitation, as well as
the further proposal for a consultation date
of 14 August 2015 and the failure by the union to respond. He
recorded the respondent’s
proposal for a meeting on 24 August
2015 and that this meeting was held in Durban when it was agreed to
meet again on 26 August
2015 in Germiston. The letter recorded
further that the respondent had earlier indicated that the
consultation process should have
been completed on 31 July 2015 and
that the target had been moved to 31 August 2015 after consultation.
The letter notes that in
the last consultation meeting, the
respondent explained that the process could not be extended beyond 25
September 2015 and that
affected employees will would be given
termination letters on 28 September 2015. Attached to the letter was
a list of employees
per region who would be given notices on 28
September 2015. There was no response to this letter, and in
particular, no response
to the effect that notices should not go out
pending the conclusion of any further agreed meeting.
[19] On 28 September 2015, the
affected employees were given notice of termination of employment,
without any further consultations.
[20] Only Kolobe gave evidence for the
respondent, and only Masuku, the union’s regional organiser,
testified for the applicants.
The core factual dispute between the
parties was whether at the meeting on 18 September 2015, the
respondent had agreed to hold
a further consultation meeting with
union after the union officials had met with the union’s legal
officer on 28 September
2015 and whether it was agreed that there
would be a further meeting after that date. Masuku testified that
after being given an
opportunity to telephone their head office to
secure a meeting with the union’s legal officer, an agreement
was reached with
the respondent that a further meeting would be
convened after the legal officer had been consulted on 28 September
2015. The respondent’s
version, as reflected by Kolobe’s
evidence, is that there was no such agreement and that the union was
advised that the respondent
was available to meet on 21 or 22
September 2015 but not beyond that.
[21] I have no hesitation in accepting
the evidence of Kolobe over that of Masuku. Masuku was a poor
witness. His evidence-in-chief
comprised, to a significant extent,
monosyllabic denials or affirmations of leading propositions put to
him. His evidence was often
contradictory. For example, it was put to
Kolobe that Masuku would testify that he had never received the s
189(3) notice. Masuku
also sought to convey that he had sight of the
notice only at the first consultation meeting, this despite the fact
that the notice
was admitted in the pre-trial minute. Under
cross-examination, Masuku conceded to having seen the notice before
the meeting. Much
of Masuku’s evidence related to a denial of
ever having received some of the email communications and attached
documents
addressed to him by the respondent. He explained that
he was a relatively new appointment in the region, and lacked the
facilities
and resources to do his job. Masuku’s responses in
relation to communications between him and the respondent comprised
no
more than a series of unacceptable and evasive answers in which he
suggested that the inability to access certain communications
was not
his fault, but the fault of his malfunctioning computer, and that
correspondence was not seen or respondent to by him.
Masuku went so
far as to say that he received some emails, didn’t receive
others and didn’t know whether he received
others. He also gave
evidence that he did not know whether he received attachments to the
emails that he may or may not have received.
His evidence in this
regard was entirely unsatisfactory. None of the minutes of any of the
meetings between the parties record
Masuku ever having mentioned that
he was not receiving emails, not even in response to Kolobe
pertinently raising the issue of
the union’s failure to respond
to emails. Masuku then attempted to shift the blame do the
respondent’s human resources
officer, alleging that there was
an agreement between them that he would be advised of what was being
sent. It is not only extremely
improbable that a union official would
rely on a member of management to ensure that he received
communications sent to him, but
it would have been apparent to
Masuku, at least by the meeting of 24 August 2015, that the human
resources manager was not complying
with the alleged agreement. When
it was put to Masuku that if his evidence were true, he would have
taken offence and dealt with
the matter, he could not give a proper
answer. In any event, Kolobe’s undisputed evidence was that he
gave standing instructions
to the management to distribute all
communications to the shop stewards. Even if Masuku had not received
some documents, these
would have been made available to the union’s
shop stewards. In short, Masuku’s evidence was vague,
contradictory,
inconsistent with the minutes of the meetings (which
were never disputed at the time, despite their having been made
available
to union officials, nor afterward, during these
proceedings. Kolobe, on the other hand, gave evidence that was clear
and confident
and without contradiction, and consistent with the
minutes of the consultation meetings. Under cross-examination, he
made concessions
when they were sought and in my view, was an
entirely credible witness.
[22] The relevant legal principles are
well-established. In relation to substantive fairness, it is
incumbent on the employer party
to establish a commercial rationale
for the retrenchment. In so far as procedure is concerned, the LRA
contemplates that the consultation
process is one in which the
parties jointly seek to avoid retrenchment and ameliorate its
consequences. It is not a process in
which the employer party simply
announces the decisions that it intends to implement – the
employer must remain open to persuasion.
Equally, union parties to
the consultation are obliged to co-operate in achieving the
objectives of the process. The process is
not one of collective
bargaining, and the power play that often characterises collective
bargaining engagements is not, generally
speaking, appropriate in a s
189 consultation. Of course a union can and no doubt will bring
whatever collective muscle it may
have in order to influence the
outcome of any consultation process, but the nature of the process is
one in which active co-operation
rather than obstruction is required.
This court has emphasised many time that adverserialism is
inconsistent with joint consensus-seeking
and that mutual
co-operation is necessarily required from both parties.
[23]
In
Van Rooyen v Blue Financial Services
(SA) (Pty) Ltd
(2010) 31
ILJ
2735 (LC), this court said the following:
[19]
Fair procedure primarily requires that the parties engage in a
meaningful joint consensus seeking process. This obligation,
which
has its origins in
Johnson & Johnson v Chemical Industrial
Workers Union
(1999) 20
ILJ
89 (LAC), requires at least
that the parties attempt to reach consensus on the issues listed in s
189 (2) and (3). More precisely,
the employer must invite
representations on these issues from the appropriate consulting
party, seriously consider and respond
to any representations that are
made. Both parties are required, in good faith, to seek consensus.
This is not a mechanical process
– meaningful joint
decision-making requires that the party sacked with the honest
intention of exploring the prospects of
agreement. If no joint
consensus seeking process has occurred, this court is obliged to
determine which party was responsible for
the state of affairs. If it
was the employer party, the dismissal was procedurally unfair
[24] In
Visser v Sanlam
(2001)
22
ILJ
666 (LAC) at paragraph 24, the court said the
following:
The
process of consultation envisaged in s 189 (2) involves a bilateral
process in which obligations are imposed upon both parties
to consult
in good faith in an attempt to achieve the objectives specified in
the section. In my view, the respondent fulfilled
its obligations in
terms of s 189 (2). If any conclusion is justified, it is that the
appellant failed to engage adequately in
the consultation process
envisaged by the section. Accordingly, it cannot be said that the
retrenchment of appellant was procedurally
unfair.
[25]
In
Smith & others v Courier Freight
(2008) 29
ILJ
420
(LC) the court said the following
[68]
I find on the balance of probabilities that the union was responsible
for frustrating the restructuring process to the detriment
of its
members, the employees. In
NUMSA v Kaefer Thermal Contracting
Services (Pty) Ltd
[2002] 6 BLLR 570
(LC) the court held that
where the consultation process has been frustrated it is not for the
party who caused the frustration
to complain that there was
non-compliance with the consultation process.
[69]
I am satisfied that the employer made genuine attempts to engage with
the union on the retrenchment process. However, it could
not allow
the union to delay the process of restructuring indefinitely. The
union overplayed its hand and must now accept the consequences
of its
ill-advised decision unnecessarily to delay the consultation process.
In the light of the aforesaid, I believe there was
substantial
compliance with the provisions of s 189 of the Act by the employer…
(See
also
United People’s Union of
South Africa and others v Grinaker Duraset
(1997) ZALC 11
(LC) where the court referred to the ‘correlative
duty’ on the other consulting party to cooperate in an attempt
to
reach consensus before the employer ultimately exercise its right
to take the final decision; and
Smith
and others v Courier Freight
(2008) 29
ILJ
420
(LC) where this court held that the employer party had made genuine
attempts to engage the union on the retrenchment process
and could
not allow the union to delay the process indefinitely in
circumstances where the union and overplayed its hand by adopting
a
recalcitrant attitude.)
[26] Turning to the issues in dispute
in the present instance, I deal first with the requirement of
substantive fairness. The case
made by the respondent in its answer
to the applicant’s statement of case is that it suffered a
significant reduction in
volume during the 2014/2015 financial year,
that it had lost 40% of one of its main contracts (the H&K
contract), and that
unfavourable market conditions in South Africa
had made it difficult for the company to achieve its financial
targets. Kolobe referred
to the management accounts for the Germiston
wash bay that had been disclosed during the consultation process.
These disclosed
a loss of some R1.4 million for the 12 months ending
June 2015. The respondents did not challenge this figure. None of the
evidence
proffered by Kolobe in support of these averments was
seriously challenged in cross-examination, nor was the claim of
substantive
and fairness pursued with any particular vigour by the
applicants’ witness Masuku. The challenges to substantive
fairness
raised by the union during the trial demonstrate both its
failure to grasp the scale of the challenges that confronted the
respondent’s
business, and the paucity of the unions’
response. For example, the applicants’ counsel put it to Kolobe
that the union
had suggested that the cleaning products used by the
respondent were substandard and that this had had the effect of
increasing
costs to the detriment of saving jobs. This aspect had
been dealt with comprehensively by Kolobe, who gave undisputed
evidence
regarding the importance of the cleaning product to the
respondent’s business of transporting chemicals and other
substances,
health and safety considerations, and the quality
controls that the respondent had in place to ensure proper cleansing
between
loads. To the extent that the applicants made an attempt to
impugn the apprenticeship programme conducted by the retrenchment,
suggesting that apprentices ought also to have been affected by the
retrenchment exercise, Kolobe gave undisputed evidence regarding
the
terms of the relevant legislation, the terms on which apprentices
were engaged, the fixed term nature of the contracts and
the purpose
of the program as a means to ensure succession planning for diesel
mechanics not only within the respondent but for
the country as a
whole. These are but two examples of the level of engagement by the
union on the issue of the need to retrench.
They are recorded in the
minute of the meeting held on 26 August 2015, where for good measure,
one of the union’s shop stewards
helpfully added that the
respondent should be investigated for corruption.
[27] In short, none of the challenges
to the substantive rationale for the retrenchment have any merit and
I have no hesitation
in concluding that the dismissal of the affected
employees was substantively fair.
[28] In relation to procedural
fairness, as I have indicated above, the applicants have launched a
broad attack, alleging a failure
to comply with the requirements of s
189. To the extent that the applicant’s allege that the
respondent failed to consult
with it on all the issues regarding
terms of the LRA, the consultation process must necessarily be viewed
in its own context. That
context was a stated intention by the
respondent, given that the proposed retrenchment was in the scheme of
things of a small scale,
to conclude the consultation within 30 days
of the date on which the s 189 letter was issued, i.e. by 31 July
2015. The union was
aware of this time frame from the outset, and it
was repeatedly emphasized in the meetings. Further, any substantive
progress in
the first two meetings was not possible on account of
first, a proposal by the union that a single consultation be held in
respect
of both the Germiston and Durban operations and secondly, the
proposal that the CCMA be asked to facilitate the consultation
process.
In regard to the latter, Masuku held himself out as having a
great deal of experience in s189 consultations and stated that in his
experience, intervention by the CCMA had been fruitful. Kolobe’s
evidence, as recorded above, was that the CCMA had no jurisdiction
and would say as much. On closer questioning, Masuku conceded
that his experience in retrenchment processes had been limited,
to
say the least. The impression gained from Masuku’s testimony
was that he was out of his depth, and lacked the capacity
to engage
in what is ultimately a process of interest-based problem solving,
and that this was, to some extent at least, responsible
for the slow
start to the process.
[29]
Substantive issues were clearly discussed once the consultation got
underway. At the meeting held on 26 August 2015,
a perusal of
the minutes reflects that that the union made no positive
contribution to the process but was content rather to make
accusations against the respondent including the allegation of
corruption, made without any basis whatsoever. Masuku made no comment
in relation to these allegations and clearly felt that he was at
liberty to allow such conduct to continue and could only explain,
in
cross-examination, that the respondent did not view the allegations
as serious. This was clearly not the case. Kolobe had testified
that
the respondent took the allegations very seriously and indeed took
umbrage at them.
[30] As I have recorded above, the
meeting of 18 September 2015 was intended to be a meeting of all of
the unions and the respondent.
The meeting ended unsatisfactorily for
all concerned, and the blame for this is largely to be ascribed to
the union. I have no
hesitation in accepting the evidence of Kolobe
that the respondent had hired a vehicle for all of the shop stewards
based in Germiston
to drive to Durban and that the SATAWU shop
stewards had not been transported because the AMCU shop stewards
refused to do allow
them in the car. Masuku’s version that AMCU
was not responsible to transport SATAWU shop stewards and that AMCU’s
shop
stewards had not been informed that they were required to
transport the SATAWU shop stewards is most improbable. The version
that
the AMCU shop stewards were never informed that they were
required to transport all of the Germiston based shop stewards to
Durban
was never put to Kolobe in cross-examination. The more
probable version is that the AMCU delegation at the meeting of 18
September
2015 clearly did their best to derail the meeting by
leaving the SATAWU shop stewards in Germiston, and then by stating,
amongst
other things, that they did not know if they could continue
the meeting in the absence of SATAWU. In any event, and contrary to
what the applicants submit, there were issues of substance discussed
at the meeting after the walk-out by SATAWU. The minutes reflect
that
the meeting continued for a period of a little under four hours, and
that there was engagement on issues of substance. Masuku
gave the
highly improbable version that the minutes were not chronologically
recorded and that the fact of the SATAWU walkout was
recorded in the
wrong place in the minutes, and that the substantive discussions were
also not chronologically located in the minutes.
No such version was
put to Kolobe – it emerged only after Masusku was put under
pressure during cross-examination.
[31] Masuku testified that he was
ready to make submissions on the issues that had bene discussed in
the 26 August 2015 meeting,
but that on account of events that took
place on 18 September 2015, he could not make them. This makes little
sense. First, as
I have indicated, the minute of the 18 September
2015 meeting discloses that despite the SATAW walkout, matters of
substance were
discussed. The meeting lasted almost four hours. There
was nothing to prevent Masuku from tabling his submissions and
proposals,
but for reasons best known to himself, he chose not to. To
the extent that Masuku testified that the respondent would not allow
him to make submissions, this is not supported by any evidence, the
minutes, the evidence of Kolobe or any version put to Kolobe.
Further, when Kolobe sent the letter after the meeting emphasising
the deadline and making clear that one last meeting was possible
either on 21 or 22 September 2015, Masuku simply failed to respond.
He was at liberty from the day on which he said he had submissions
to
table (18 September) to do so, but chose not to do so. Finally,
Masuku’s evidence that he was ready to table submissions
on 18
September 2015 is difficult to square with his evidence that the
respondent had failed to provide the union with sufficient
relevant
information to formulate its responses to the proposals tabled by the
respondent.
[32] In regard to Masuku’s
version that there was an agreement between the parties that another
meeting would take place after
the meeting with the union’s
legal officer on 28 September 2015, for the reasons I have recorded
above, Masuku’s evidence
is wholly unreliable. His evidence
regarding the purpose of the meeting with the union legal officer was
inconsistent – it
ranged from the implications of SATAWU
uttering before withdrawing from the meeting that there would be
‘another Marikana’,
to the implications for AMCU of
SATAWU having withdrawn from the consultation meeting, and to the
need to formulate an appropriate
union response to the respondent’s
proposals. (The evidence suggests that all that the union came up
with after the meeting
was a proposal that the workers should assume
control over the wash bays.) Further, there is no reference in
the minutes
(which it should be recalled were not placed in dispute
by the applicants – on the contrary, the applicants accepted
the
minutes as an accurate reflection of the meetings concerned), to
any agreement on the terms alleged by Masuku. On the contrary,
the minutes are entirely consistent with Kolobe’s testimony.
They reflect no more than that the respondent was agreeable
in
principle to the union delegation consulting the union’s legal
official, but strictly within the time frame that had been
tabled and
emphasized more than once, a timetable that required a final meeting
by no later than 21 or 22 September 2015. It is
most therefore most
improbable that there was an agreement to hold a further meeting
after 29 September 2015; on the contrary,
the probabilities are that
the respondent announced that it would be distributing letters of
termination to affected employees
by 25 September 2015 and that any
final meeting would have to be held by 22 September. To the extent
that the applicants’
case is that Masuku formed the
‘understanding’ or ‘impression’ that there
would be another meeting on 30
September 2015 (this is the pleaded
case and one contrary to Masuku’s assertion in his evidence
that there had been an agreement
to hold a later meeting), he should
have been disabused of that notion by the clear communication to him
at the meeting on 18 September
2015 that the last opportunity to meet
was on 20 or 21 September, and that the process would end on 25
September 2015. Any impression
to the contrary was not consistent
with what had been clearly recorded by the respondent and
communicated to the union.
[33] The overall impression that
emerges from the evidence is that the respondent extended the
deadline for the conclusion of the
consultation process from 31 July
to 31 August and then to 25 September 2015. During the entire period,
the union was not only
uncooperative in the consultation process, it
did anything other than involve itself in a joint consensus-seeking
process. Masuku’s
allegations concerning his supposed
incapacity properly to conduct of the consultation process by virtue
of the difficulties he
says he was experiencing occasion by his lack
of resources are nothing but a convenient excuse for what amounted at
best to his
failure of leadership, at worst to a mendacious campaign
to frustrate the consultation process.
[34] In short, the evidence discloses
that the respondent did everything that was reasonably required to
consult with the union
and to enter into a joint consensus- seeking
exercise. It was thwarted at every turn, and not unreasonably, some
60 days beyond
the initial end-point, it chose to draw the process to
a close.
[35] The submissions made on behalf of
the applicants incorrectly assume a union is entitled to adopt an
entirely passive approach
in the consultation process, and then seek
to hold the employer party to account for a failure to comply with
what amounts to a
checklist. The inevitable but unfortunate result is
that the issues that ought properly to have been canvassed in the
workplace
for discussion and solution-seeking are debated in the
courtroom. This is not what is intended by s 189. A union that fails
to
engage with the employer party and thereby seeks to protract the
consultation process) most often in the naïve belief that
it is
buying time for its members), is not entitled to adopt the position
of an armchair critic, seeking to hold the employer party
to account
for a consultation process that it claims was inadequate. The union
would have been better served by approaching the
consultation process
as a process of joint decision-making, as it was required to do, and
in which it played an active and constructive
role. The union showed
no interest in consensus. It failed to make a single constructive
proposal in any of the meetings that were
held, or by way of written
response to any of the respondent’s proposals. Instead, as I
have noted, the union elected to
be a passive but obstructive
participant in the consultation process. In the words of the
Courier
Freight
judgment (
supra
), the union overplayed its hand
and must now accept the consequences of its ill-advised decision to
delay the consultation process
as far as possible.
[36]
For the above reasons, in my view, the respondent has discharged the
onus to establish that the dismissal of the employees
was
procedurally fair. The referral thus stands to be dismissed.
[37] Section 162 confers a broad
discretion on the court to make orders for costs according to the law
and fairness. The court does
not ordinarily make orders for costs in
circumstances where parties to a dispute are engaged in a collective
bargaining relationship,
and where the effect of the order would be
to prejudice that relationship. Kolobe testified that since the
retrenchment, the unions’
representativity in the workplace had
decreased, and it did not seem to me that any order for costs would
have the effect of prejudicing
any relationship that remains in
existence between the respondent and the union.
[38] The factor that inclines me to
order that costs follow the result is the manner in which this
litigation has been conducted.
The applicants contested substantive
and procedural fairness to the end, without compromise. The case
against substantive fairness
was never made explicit; it amounted to
little more than a denial of the respondent’s case. None of the
substantive factors
cited by the respondent as having given rise to
the financial difficulties that it was suffering were ever addressed
on their merits,
neither during the consultation process nor during
these proceedings. During the consultation, the union’s
representatives
appeared content to make proposals that can only be
described as flippant, and to make derogatory and insulting remarks
about the
respondent. These are singularly unhelpful in a process
designed to promote and generate joint solutions to the prospect of
pending
unemployment. The union chose instead to treat the
consultation process as a site of power play, not only against the
respondent,
but also its rival union SATAWU.
[39] For these reasons, in my view,
the interests of justice and fairness dictate that the union should
be ordered to pay the costs
of these proceedings.
I make the following order:
1.
The applicants’ referral is
dismissed, with costs.
André van Niekerk
Judge
REPRESENTATION
For the applicants: Adv. C Malan,
instructed by Larry Dave Attorneys
For the respondent: Adv. A Snider,
instructed by CDH Attorneys.