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[2018] ZALCJHB 207
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Tirisano Transport and Services Workers Union (TASWU) and Others v Putco (Pty) Ltd (J1879/18) [2018] ZALCJHB 207 (14 June 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
no: J 1879/18
Not
Reportable
In
the matter between:
TIRISANO
TRANSPORT AND SERVICES
WORKERS
UNION
(TASWU)
First
Applicant
SOUTH
AFRICAN TRANSPORT AND
ALLIED
WORKERS UNION
(SATAWU)
Second
Applicant
TRANSPORT
AND ALLIED WORKERS
UNION
OF SOUTH AFRICA
(TAWUSA)
Third
Applicant
and
PUTCO
(PTY)
LTD
Respondent
Heard:
7 June 2018
Delivered:
14 June 2018
JUDGMENT
WHITCHER J
Nature
of the dispute
[1]
On 19 March 2018, Putco gave notice as contemplated in s 189(3) of
the Labour Relations Act, 1995 (“the Act”) to
the
applicants and other trade unions involved, notifying them that it
contemplated that about 327 employees would be retrenched.
[2]
Following a consultation process facilitated by a CCMA Commissioner,
during which the statutory 60-day consultation period was
extended by
a week, Putco, on 1 June 2018, gave a month’s notice to 140
monthly-paid employees and a week’s notice
to 81 weekly-paid
employees.
[3]
In this application, brought in terms of s 189A(13) of the Act, the
applicant unions seek the reinstatement of the retrenched
employees,
and an extension of the consultation process by a further 30 days,
alternatively
a compensation order.
[4]
The unions’ case is that there was no meaningful engagement on
all the topics that require consultation. This, they allege,
was as a
result of the national bus strike having taken place for part of the
60-day period, Putco’s failure to respond to
issues raised by
them during the process and their inability to interrogate the
Department of Transport on Putco’s claims
regarding
underfunding and subsidy problems.
[5]
Putco’s case is that it sought to consult comprehensively on
all consultation topics, but the unions placed obstacles
in the way
of proper consultation. Putco therefore cannot be blamed for any
shortcoming in the consultation process.
Brief
chronology
[6]
From the affidavits and the detailed minutes of the facilitated
meetings attached to the answering affidavit, the following
summary
of pertinent events can be made. The accuracy of the minutes for the
most part was not a matter of contention and the parts
that were
questioned were not contested in any meaningful manner.
[7]
On 19 March 2018, Putco issued the s 189(3) notice to the unions.
[8]
The notice addressed in detail all the aspects prescribed by s
183(3), namely the reasons for the proposed dismissal, the number
of
positions likely to be affected, actions Putco had taken in an
attempt to avoid the proposed dismissals, its proposed method
for
selecting affected employees, a proposed timing of the dismissals and
proposed assistance to affected employees.
[9]
According to the notice Putco is in a perilous financial position due
to various factors. These include protracted underfunding,
a decrease
in subsidies, petrol increases and a failure by the Gauteng
Department of Transport to renegotiate competitive contracts.
[10]
The notice informed the unions that the statutory 60-day consultation
period would end on 18 May 2018.
[11]
A facilitator was appointed and 6 facilitated consultation meetings
were held: on 6 and 12 April; 16, 18, 23 and 25 May 2018.
The 60-day
facilitation period elapsed on 18 May 2018, but Putco agreed to a
week’s extension. There was a national bus strike
for 27 days,
from 18 April to 14 May 2018.
[12]
At the first facilitated meeting, Putco had a comprehensive
presentation prepared on all aspects listed in s 189(3) which it
wanted to present to the unions. Putco had at the commencement of the
meeting provided the unions with an “evidence bundle”
containing the presentation and supporting documents, including
extracts from audited financial statements and a presentation made
by
Putco to the Gauteng Roads and Transport Portfolio Committee Enquiry
on the bus contract and subsidy programme.
[13]
The unions refused to allow Putco to make the presentation. Their
purported reason: Putco had not provided them with the “evidence
bundle” prior to the meeting. They also wanted the 6 April 2018
to be considered the first day of the 60-day period.
[14]
The facilitator concurred with Putco’s submissions that
employers are permitted to make such a presentation in the first
meeting and that, in terms of s 189(A)(7) of the Act, the 60-day
period ran from 19 March and lapsed on 18 May 2018.
[15]
The unions, however, persisted with their position and facilitator
had to adjourn the meeting.
[16]
The unions instructed Putco to provide them with the following
additional information before the next facilitated meeting:
a list of
Putco’s suppliers and sub-contractors, Putco’s audited
financial statements for 2009, 2014, 2015, 2016 and
2017, Putco’s
unaudited financial statements for 2018, details of the earning of
top management and the names of all employees
potentially affected.
Putco dispatched the information to the unions on 10 and 11 April
2018.
[17]
The second facilitated meeting took place on 12 April 2018. NUMSA and
Trisano were accompanied by their own accountants.
[18]
Putco took the unions through its presentation and supporting
documents. In the process, Putco was asked and answered various
questions about its financial state. At the end, the unions said they
needed time to digest and prepare a response to the presentation
(despite them having been in possession of all this information from
6 April 2018).
[19]
Further facilitated meetings were scheduled for 19 and 20 April 2018.
The unions instructed the facilitator to secure the attendance
of the
Department of Transport at the next facilitated meeting to address
the issue relating to subsidies.
[20]
Importantly, the unions also asked how the parties would proceed with
the scheduled consultation meetings in light of the impending
national bus strike. After discussions on the matter, they agreed
that they would attend the meetings and Putco agreed to assist
them
by providing the shopstewards with transport or transport costs.
Putco arranged the latter on 18 April 2018.
[21]
The Department of Transport agreed to attend the consultation meeting
scheduled for 20 April 2018.
[22]
The national bus strike commenced on 18 April 2018.
[23]
On 18 April 2018, SATAWU, TAWUSA and NUMSA indicated in an e-mail
trial to all parties that they would not attend the scheduled
meetings on 19 and 20 April 2018 because they would be busy with the
strike.
[24]
TASWU stated that although it was part of the s 150 conciliation
meeting scheduled for 19 and 20 April 2018 (in respect of
the
strike), it had been prepared to improvise and attend the
pre-arranged facilitated meetings on 19 and 20 April 2018.
[25]
The CCMA had to postpone the consultation meetings scheduled for 19
and 20 April 2018, but immediately informed the parties
that the next
facilitated meeting would take place on 4 May 2018, with the 9 or 10
May 2018 being proposed for a follow-up meeting.
[26]
The unions informed the CCMA that they were not available on 4 May
2018. The CCMA then scheduled meetings for 10 and 14 May
2018.
[27]
On 4 May 2018, TAWUSA, in an e-mail trail, stated that the
facilitation process should be postponed
sine
die
due
to the bus strike. NUMSA proposed that the 60-day period be extended
for 30 days because of the strike.
[28]
On the same day, Putco informed the unions that it was not in a
positon to extend the consultation period “given its
(dire)
financial position” and that an extension would amount to
“reckless trading by the company”. The strike
had in fact
worsened its financial and cash flow problems.
[29]
Putco urged the parties to discuss the matter during the next
consultation meeting, scheduled for 10 May 2018.
[30]
The unions did not attend the meetings scheduled for 10 and 14 May
2018.
[31]
The national bus strike ended on 14 May 2018.
[32]
The next facilitated meeting took place on 16 May 2018. At the
meeting Putco expressed its concern that the end of the 60-day
period
was drawing close with the parties not having engaged on various
matters for consultation.
[33]
The unions present (NUMSA, SATAWU and TASWU) objected to the meeting
proceeding, stating that the CCMA had omitted to send
the notice of
the meeting to IMATU and TAWUSA. Putco contends that these unions
were, nevertheless, aware of the date of the meeting.
[34]
The unions requested a one-month extension of the consultation
process because of the national strike. Putco agreed to extend
the
consultation process by a further week only.
[35]
All the parties agreed to hold further consultations on 18, 23 and 25
May 2018, and the meeting was adjourned without any discussions
on
substantive issues.
[36]
The parties met on 18 May 2018. The facilitator reported that the
Department of Transport had not been responsive to follow-up
letters
on its attendance at rescheduled consultation meeting.
[37]
Putco reported that the number of potentially affected employees had
been reduced from 327 to 241 due to resignations, retirements,
deaths
and dismissals.
[38]
The unions argued that given this change in numbers, Putco was
required to issue a new section 189(3) notice and commence the
consultations process afresh.
[39]
They also insisted that the meeting could not continue in the absence
of the Department of Transport.
[40]
The facilitator stressed that there were other issues that could be
deliberated on in the meantime.
[41]
Following a caucus the unions decided to pose questions to Putco on
the financial information given to them on 10 April 2018,
but it was
agreed that they would submit their questions in writing by 19 May
2018, and the meeting adjourned. On 22 May 2018,
Putco provided the
unions with its written responses to the questions.
[42]
The fifth facilitated meeting took place on 23 May 2018. Putco took
the unions through its written responses provided on 22
May 2018.
Further questions on Putco’s financial position were posed and
Putco undertook to respond thereto in writing. (It
did so on 24 May
2018).
[43]
Before the meeting ended, the facilitator reminded the parties that
only one meeting was left in the consultation process and
expressed
concern that there had been no meaningful progress on the matter.
[44]
On 24 May 2018, Putco sent a lengthy letter to the unions in which it
outlined its proposals for the conclusion of the consultation
process
and urged the unions to deal with the outstanding issues listed in s
189(3).
[45]
The sixth and final facilitated meeting took place on 25 May 2018.
The unions took the view that the meeting should not proceed
unless
Putco withdrew its insinuation in the letter of 24 May 2018 that the
unions had failed to engage on the items listed in
the letter and had
frustrated the consultation process. Only after much argument on the
matter, did they agree to proceed with
the meeting.
[46]
There was a lengthy discussion on alternatives to dismissal, with
Putco explaining why, in its view, the alternatives suggested
were
not viable.
[47]
At the end of the meeting the unions stated that the consultation
process could not proceed in the absence of the Department
of
Transport.
[48]
On 29 May 2018, Putco sent a letter to the unions, in which it
proposed a final meeting on 31 May 2018 to close out the consultation
process (it had taken the decision to retrench and (again wished to
consult over the consequences of the decision).
[49]
The 31 May 2018 meeting did not come about and the unions did not
respond to Putco’s proposals (as they had been invited
to).
[50]
On 1 June 2018, Putco issued notices of termination.
Evaluation
[51]
It is my view that the applicants have failed to make out a case for
the relief prayed for. It is evident that the purpose
of s 189 (a
joint-consensus seeking process) was not achieved in this case –
but, Putco was not at fault and, in fact, did
all it could to consult
comprehensively on all matters.
[52]
The unions’ claim that Putco failed to respond to important
issues and questions is vague and unsubstantiated. It appears
that
throughout the process Putco furnished all required and requested
information timeously and sought to answer all queries put
to it by
the unions.
[53]
Putco further furnished detailed proposals on all the aspects listed
in s 189 and afforded the unions’ sufficient time
to consider
and respond to same.
[54]
And, in relation to this case, it sought to consult comprehensively
on all these aspects, but the unions frustrated this process.
[55]
They unnecessarily delayed the process in the first two meetings.
[56]
I agree with Mr Myburgh that the fact that the national bus strike
took place during the consultation process is a red herring.
The
unions undertook to attend the consultation meetings during the
strike and later reneged from this undertaking. The unions
did not
explain why, considering their size with established infrastructure
and a greater number of trade unions officials and
the fact that the
strike lasted 27 days, they could not honour their commitment to
attend the consultation meetings during the
strike by deploying
officials to deal with the national bus strike and deploying other
officials to the consultations. They also
did not offer any
principled reason for not attending the consultations during the
strike.
[57]
The fact that the Department of Transport was not responsive to
further invitations to attend the consultations did not justify
delaying the process. When the Department was prepared to honour its
commitment to attend a scheduled meeting, the unions failed
to
attend. In any event, the unions did not demonstrate why the
information on the Department provided by Putco, with supporting
documents, was insufficient or why they could not have sought answers
(even written ones) from the Department during the 27 day
strike.
[58]
Putco extended the consultation process by a week beyond the
statutory 60-day period, and gave rational financial reasons as
to
why it could not tenably delay the retrenchment any further than it
did.
[59]
Considering this reason and the fact that the unions were afforded
ample time to engage Putco on all matters, it was not unfair
for
Putco to have decided on 29 May 2018 that it was only prepared to
attempt to consult and reach consensus on one more occasion
and to
decide that, if necessary, it was going to act unilaterally
thereafter. It is significant that unions made no attempt to
attend
this meeting and did not explain their absence.
[60]
In the circumstances, I agree that Putco sought to consult
comprehensively on all consultation topics, but the unions frustrated
their attempts. Putco therefore cannot be blamed for any shortcoming
in the consultation process.
[61]
I do not believe that an adverse cost order is appropriate. The
parties have a continuing relationship and the matter was important
in that it potentially affected over two hundred employees.
[62]
In the premises, I make the following order:
Order
1. The application is
dismissed.
2. There is no order as
to costs.
________________________________
B
Whitcher
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicants:
Advocate V.P Ngutshana
Instructed
by
Masondo Malope Attorneys Inc
For
the Respondent:
Advocate A. Myburgh SC with R Itzkin
Instructed
by
Bowman Gilfillan Inc