About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2018
>>
[2018] ZALCJHB 292
|
|
Enslin v Lonmin Platinum Comprising Western Platinum Limited (JS1166/13) [2018] ZALCJHB 292 (20 September 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: JS 1166/13
In the matter between:
WESSEL
ENSLIN
Applicant
and
LONMIN PLATINUM COMPRISING
WESTERN PLATINUM
LIMITED
Respondent
Heard: 13, 14 and 20 August 2018
Delivered: 20 September 2018
JUDGMENT
MAHOSI, J
[1] The respondent dismissed the
applicant, Mr Wessel Enslin, on 31 July 2013 for operational
requirements. On 11 December 2013,
the applicant filed a statement of
claim in this Court in term of which both the procedural and
substantive fairness of his dismissal
are challenged.
[2]
The question of procedural fairness of the applicant’s
dismissal was raised during the cross-examination of the respondent’s
first witness, Mr Prinsloo. Flowing from that, the Court
mero
motu
raised the question of the applicability of section 189A of the
Labour Relations Act
[1]
(LRA).
The
parties were therefore directed to address the question whether this
Court has jurisdiction in this trial to adjudicate the
procedural
fairness of the dismissal based on the employer's operational
requirements.
[3] The applicant, on the one hand,
submitted that section 189A is not applicable in this case and
further that the respondent embarked
on a normal retrenchment and not
a large-scale retrenchment. The basis for the applicant’s
submission was that the respondent,
in its section 189(3) notices,
failed to disclose the number of employees who were likely to be
affected by the restructuring process.
The applicant submitted that
the number disclosed by the respondent in its notices was only three.
[4] On the other hand, the respondent
submitted that section 189A applies and that consequently this
Court’s jurisdiction
to enquire into procedural fairness is
ousted by section 189A(18) of the LRA.
[5]
Section 189 deals with dismissals based on operational requirements.
Subsection (1) requires the employer to consult with affected
employees prior to embarking on retrenchment programmes and provides
as follows:
‘
(1)
When an employer contemplates dismissing one or more employees for
reasons based on the employer‘s operational requirements,
the
employer must consult -
(a)
any person whom the employer is required to consult in terms of a
collective agreement;
(b)
if there is no collective agreement that requires consultation –
(i)
a workplace forum, if the employees likely to be affected by the
proposed dismissals are employed in a workplace in respect
of which
there is a workplace forum; and
(ii)
any registered trade union whose members are likely to be affected by
the proposed dismissals;
(c)
if there is no workplace forum in the workplace in which the
employees likely to be affected by the proposed dismissals are
employed, any registered trade union whose members are likely to be
affected by the proposed dismissals; or
(d)
if there is no such trade union, the employees likely to be affected
by the proposed dismissals or their representatives nominated
for
that purpose.’
[6] In terms of section 189(3), the
employer must issue a written notice inviting the other consulting
party to consult with it
and disclose in writing all relevant
information, including, but not limited to:
‘
(a)
the reasons for the proposed dismissals;
(b)
the alternatives that the employer considered before proposing the
dismissals, and the reasons for rejecting each of those alternatives;
(c)
the number of employees likely to be affected and the job categories
in which they are employed;
(d)
the proposed method for selecting which employees to dismiss;
(e)
the time when, or the period during which, the dismissals are likely
to take effect;
(f)
the severance pay proposed;
(g)
any assistance that the employer proposes to offer to the employees
likely to be dismissed;
(h)
the possibility of the future re-employment of the employees who are
dismissed;
(i)
the number of employees employed by the employer; and
(j)
the number of employees that the employer has dismissed for reasons
based on its operational requirements in the preceding 12
months.’
[7] Section 198A(1) provides as
follows:
‘
189A.
Dismissals based on operational requirements by employers with more
than 50 employees
(1)
This section applies to employers employing more than 50 employees
if-
(a)
the employer contemplates dismissing by reason of the employer's
operational requirements, at least-
(i)
10 employees, if the employer employs up to 200 employees;
(ii)
20 employees, if the employer employs more than 200, but not more
than 300, employees;
(iii)
30 employees, if the employer employs more than 300, but not more
than 400, employees;
(iv)
40 employees, if the employer employs more than 400, but not more
than 500, employees; or
(v)
50 employees, if the employer employs more than 500 employees; or
(b)
the number of employees that the employer contemplates dismissing
together with the number of employees that have been dismissed
by
reason of the employer's operational requirements in the 12 months
prior to the employer issuing a notice in terms of section
189(3), is
equal to or exceeds the relevant number specified in paragraph (a).’
[8] Section 189A is applicable only if
the employer employs more than 50 employees and if the employer
contemplates retrenching
employees in accordance with the scale
provided in section 189A(1)(a). It is further applicable if the
number of employees that
the employer contemplates dismissing
together with the number of employees that have been dismissed by
reason of the employer's
operational requirements in the 12 months
prior to the employer issuing a notice in terms of section 189(3), is
equal to or exceeds
the relevant number specified in section
189(1)(a).
[9]
In the current matter, it is common cause that the respondent issued
two notices purporting to comply with the provisions of
section
189(3). The first notice was dated 7 November 2012, and it was
addressed to the trade unions involved, being NUM, UASA,
Solidarity
and AMCU (the trade unions) and the second notice was
issued
to the applicant on 25 February 2013. Both notices were worded
similarly and stated that:
‘
1.1
Lonmin Platinum wishes to advise that it is reviewing its current
operating model and contemplating restructuring its management
structure.
1.2
Lonmin Platinum needs to be focused and manage the current cost
pressures affecting the business. The magnitude of the losses
sustained by Lonmin Platinum must be appropriately managed as well
need to investigate areas for revenue improvement and cost
improvement.
1.3
All these initiatives could result in retrenchments.
1.4
During the course of the next few weeks, Lonmin Platinum will be
consulting on, amongst others, the reasons for its restructuring,
advised operating model and the proposed operational structure to
support the operating model as well as to receive input from
you,
other employees in Petterson job grades F, E, D, and C. By virtue of
you falling in these grades, you are affected.’
[10]
In these notices, the respondent disclosed that it
employed
approximately 28 042 employees and further that the number of
employees that have been dismissed for reasons based on operational
requirements in the preceding 12 months was three. On the number of
employees likely to be affected, the notice stated that:
‘…
The
number of employees who may have to be retrenched, if any, is unknown
to Lonmin Platinum at this stage.’
[11] On 13 November 2012, there was a
consultation meeting. The minutes of the said meeting discloses that
the consultation session
is the commencement of the 60-day period as
required by the LRA. Further that its purpose is to provide an
overview of the restructuring
process in respect of the state of the
business, way forward on the proposed facilitation of consultations
and proposed use of
previous restructuring agreements. The parties
agreed to seek a facilitator to assist in the restructuring process
starting from
20 November 2012. Subsequently, a number of
consultation meetings were held between the respondent and the trade
unions.
[12] According to the pre-trial
minute, it was common cause that on 28 February 2018, the applicant
attended the restructuring update
at the game farm during which Mr.
Prinsloo was present. Mr Prinsloo testified on the document titled
“Lonmin Restructuring
Project – Updated EXCO
Presentation” dated 27 February 2013 which was presented on 28
February 2013. The overall proposed
headcount reduction in terms of
the executive summary of this updated EXCO presentation is 83
employees. Mr. Prinsloo, further
testified on a document titled
“Voluntary Separation, Early Retirement and Redeployment
Agreement in Respect of Marikana
Operations.” The
interpretation clause of the said documents records as follows:
‘
1.1
This agreement is the reflection of the consultation process between
the parties in terms of section 189 and 189A of the LRA
that
commenced on 13 November 2012.’
[13] To an extent that the
respondent’s section 189(3) notice did not disclose the number
of employees likely to be affected
and the job categories in which
they are employed, such notice was irregular and/or defective.
However, it is apparent that the
said defect was rectified in the
consultation meeting of 28 February 2013 when the respondent
disclosed that 83 employees were
likely to be reduced. The applicant
argued that the word reduction does not mean retrenchment as
reduction may be achieved in various
ways including early retirement.
I find this argument to be baseless.
[14]
It is apparent that the section 189(3) notice disclosed that the
respondent is reviewing its current operating model and contemplating
restructuring its management structure; it employed approximately 28
042 employees and that it retrenched three employees in the
preceding
year. Although the notice disclosed that the number of employees who
may have to be retrenched was unknown at the stage
when section
189(3) was issued, the respondent subsequently disclosed in its
document titled “Lonmin Restructuring Project
– Updated
EXCO Presentation” dated 27 February 2013 which was presented
on the consultation meeting on 28 February
2013, that it contemplated
reducing 83 employees.
[15] Section 189(13) provides that if
an employer does not comply with a fair procedure, a consulting party
may approach the Labour
Court by way of an application for an order:
(a) compelling the employer to comply with a fair procedure; (b)
interdicting or restraining
the employer from dismissing an employee
prior to complying with a fair procedure; (c) directing the employer
to reinstate an employee
until it has complied with a fair procedure;
(d) make an award of compensation, if an order in terms of paragraphs
(a) to (c) is
not appropriate.
[16] Section 189A(18) provides that:
‘
The
Labour Court may not adjudicate a dispute about procedural fairness
of a dismissal based on the employer’s operational
requirements
referred to it in terms of section 191(5)(b)(ii)’.
[17]
In
Edcon Ltd v Steenkamp and Others,
[2]
the Court considered the effect of section 189A(18) and held as
follows:
‘
There
could be no clearer indication that after a dismissal had taken place
under the stipulated circumstances of operational requirements
of an
employer, the Labour Court is bereft of jurisdiction, save in respect
of substantive fairness. That express exclusion of
jurisdiction to
evaluate procedural unfairness
ex
post facto
is
in stark contrast to the jurisdictional competence of the Labour
Court in other kinds of dismissal disputes.’
[18]
In my view, the evidence is compelling that, subsequent to the
consultation meeting of 28 February 2013, it became clear that
section 189A was applicable. The employer employed more than 50
employees and it contemplated retrenching employees in accordance
with the scale provided in section 189A(1)(a)(v). In addition, a
facilitator was appointed in terms of section 189A(4). This being
a
large-scale retrenchment, section 189(13) read with section 189A(18)
was applicable. In the premises, this Court lacks jurisdiction
to
determine procedural fairness of the applicant’s dismissal.
[19] Accordingly, I make the following
order:
Order
1. This Court has no jurisdiction to
adjudicate a dispute about the procedural fairness of the applicant’s
dismissal based
on the employer’s operational requirements.
2. The matter is to be set down for
trial for hearing of evidence in relation to the substantive fairness
of the applicant’s
dismissal on the dates to be agreed to
between the parties and the Registrar of this Court.
3. The matter is part-heard.
4. Costs to be the costs in the cause.
__________________
D. Mahosi
Judge of the Labour Court of South
Africa
Appearances:
For the Applicants Advocate Hein
Gerber
Instructed by Welman and Bloem
Incorporated.
For the Third Respondent Advocate A.
Makka
Instructed by Cliffe Dekker Hofmeyr
Attorneys
[1]
Act
66 of 1995 as amended.
[2]
(2018) 39 ILJ 531
(LAC) para 19.