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[2018] ZALCJHB 296
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Solidarity obo De Klerk v South African State Theatre (JS874/16) [2018] ZALCJHB 296 (20 September 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: JS 874/16
In the matter between:
SOLIDARITY
obo DE
KLERK Applicant
and
THE
SOUTH AFRICAN STATE
THEATRE Respondent
Heard
:
31 May and 1 June 2018 (heads of
argument submitted on 15 June 2018)
Delivered
:
20 September 2018
Summary: Unfair dismissal following
dismissal for operational reasons. Dismissal procedurally and
substantively unfair. Applicant
awarded maximum compensation.
JUDGMENT
PRINSLOO,J
Introduction
[1]
Solidarity
acting on behalf of Ms de Klerk (the Applicant) referred an unfair
dismissal dispute to this Court in relation to her
dismissal based on
the Respondent’s operational requirements.
[2]
Before
turning to the merits of the case, it is necessary to give a brief
overview of the pleadings, the pre-trial minute and the
issues for
the Court to decide.
The pleadings and pre-trial minute
[3]
It is
common cause that the Applicant was employed by the Respondent on 15
March 2002 as groups and conferences co-ordinator and
that from 1
February 2012 she held the position of payroll administrator.
[4]
The
Applicant’s employment was terminated on 30 September 2016.
[5]
The
Applicant’s pleaded case is that she received a notice in terms
of section 189(3) of the Labour Relations Act
[1]
(LRA) on 11 July 2016 and that she was subsequently informed that she
would be retrenched and her services would be terminated
with effect
from 30 September 2016. The Applicant’s case is that the
Respondent did not consider any alternatives to retrenching
her,
notwithstanding the fact that 15 positions were advertised at the
time of her retrenchment. The Respondent’s pleaded
response to
this is that it did not have alternatives available due to the lack
of skills and qualifications of the affected employees
and the said
employees did not apply for the advertised positions because they did
not meet the minimum qualification requirements.
[6]
The
Applicant’s case is that no consultations took place in terms
of the provisions of section 189 of the LRA, that there
was no
attempt to reach consensus on appropriate measures to avoid the
dismissal, to minimize the number of dismissals, to mitigate
the
adverse effects of the dismissal, no attempt was made to establish
whether alternatives existed and the selection criteria
was not
agreed or consulted on.
[7]
The
Applicant took issue with the selection criteria as it was not
consulted on or agreed to between the consulting parties, nor
was it
fair and objective, but instead the Respondent had already identified
the positions and employees that became redundant
without any
consultation on the selection criteria. The Applicant was afforded no
opportunity to make submissions in terms of section
189(5) of the
LRA.
[8]
The
gist of the Applicant’s case is that she was denied the
opportunity to make representations to avoid her dismissal as
no
consultation process was followed. To this the Respondent’s
pleaded case is that there was no possibility that the Applicant
could have avoided her dismissal as she did not fit into the new
organisational structure because the skills audit automatically
disqualified her.
[9]
The
Respondent’s case is that as a direct response to the audit it
received in 2015, the CEO indicated in November 2015 that
the
Respondent would be implementing a productivity improvement plan over
the next year and that if the initiatives to increase
profitability
and to reduce fixed costs did not yield results, the Respondent would
have to retrench ten employees per year as
from 2016.
[10]
On 6
July 2016 the Respondent held a meeting with employees to discuss the
re-alignment of the State Theatre to ensure that it meets
its
objectives. A new organisational structure had been approved by the
Council and this was the direct result of the audit qualification
and
the skills audit. As a result of the new organisational structure, a
retrenchment process would ensue for three years, with
ten employees
being retrenched each year. The plan is known as the Turnaround
Strategy and Operational Planning.
[11]
The
Respondent’s pleaded case is that from 11 July 2016 ten
employees were handed notices of retrenchment in terms of section
189(3) of the LRA. On 12 July 2016, a letter was received from
Duvenage & Duvenage Attorneys, acting on behalf of the ten
affected employees and in the letter, proposals for consideration
were put forward. Consultations with the affected employees were
held
on 18 and 19 July 2016 and the proposals put forward, were considered
by the Respondent’s management.
[12]
On 1
August 2016, the Respondent’s management accepted all the
proposals put forward, except the proposal for higher severance
pay.
After consultations, it came to the Respondent’s attention that
different representatives claimed to represent the affected
employees
and consequently the Respondent extended the consultation process.
Termination letters were handed out on 29 September
2016.
[13]
The
Respondent pleaded that the affected employees were dismissed based
on selection criteria that had been identified by the skills
audit,
which involved the re-alignment of the State Theatre by restructuring
to improve its workforce, skills and productivity.
The evidence adduced
[14]
The
Respondent called its human resources manager, Ms Mopayi as its only
witness. She testified that she facilitated the retrenchment
process
on behalf of the Respondent.
[15]
On 6
July 2016 there was a meeting with NEHAWU and on the same day a staff
meeting was held at 14:00 and in both meetings the union
and the
employees were informed that the Respondent would implement a new
organisational structure. The CEO informed all staff
members of the
reasons for this namely the poor financial performance of the
organisation, the qualified opinion of the Auditor
General, the
outcome of the skills audit conducted by an independent contractor
and the need to ensure the future sustainability
of the organisation.
The CEO indicated that the human resources department (HR) would
contact all the affected employees.
[16]
On 11
July 2016, Ms Mopayi handed the section 189 notices to all the
affected employees, wherein it was indicated that the Respondent
wanted to meet with the affected employees to proceed with the
consultation process. The consultations were held on 18 and 19 July
2016. Ms Mopayi explained that the proposals put forward were to be
considered and that the Respondent indeed responded to the
proposals
and she described the process that followed as a ‘to and fro’
consensus seeking process. The Respondent even
extended the
consultation process due to outstanding proposals that needed to be
considered and the affected employees were invited
for further
consultation on 5 September 2016. The proposal that the Respondent
paid two weeks’ severance pay for each year
of completed
services could not be accepted and the Respondent disclosed the
reason why the proposal was rejected as the financial
position of the
Respondent. Termination letters were issued on 30 September 2016.
[17]
In
respect of consultations held with the employees, Ms Mopayi testified
that the first meeting was held on 18 July 2016 and that
during this
meeting the content of the section 189(3) notice was explained to the
affected employees as well as the reason for
the retrenchment
process. She requested the affected employees to put forward any
proposals they might have.
[18]
It is
evident from the minutes of the consultation meeting held on 18 July
2016 that the Applicant requested to see the business
plan, the new
organogram and wanted to know why her position was redundant.
[19]
On 27
July 2016, the Applicant addressed a letter to Ms Mopayi wherein she
made reference to documents Ms Mopayi undertook on 18
July 2016 to
provide to her by 20 July 2016. On 20 July 2016, Ms Mopayi sent an
e-mail to the Applicant informing her that management
was still
deliberating on her proposal and feedback would be forwarded to the
Applicant by no later than 26 July 2016. On 26 July
2016, Ms Mopayi
sent another e-mail to the Applicant stating that the feedback
regarding her proposal was being deliberated on
and that they would
revert to her soonest. The Applicant asked why there was a failure to
provide her with the information she
required for the consultation
process.
[20]
Ms
Mopayi explained that the documents the Applicant was looking for
were the document that detailed the reasons for retrenchment,
the
Strategy document and the new approved organogram. She testified that
the organogram and operational plane were e-mailed to
the Applicant
on 18 July 2016 and subsequent to that, the Applicant requested no
further information. The Respondent complied with
the Applicant’s
request for the information. This is disputed by the Applicant.
[21]
On 31
August 2016, the consultation period was extended to 8 September 2016
in order to resolve the only outstanding issue of severance
pay and
the Applicant was invited to a consultation meeting scheduled for 5
September 2016. There was no consensus reached on the
issue of
severance pay as the Applicant asked for two weeks’ pay per
completed year of service and the Respondent was not
in a position to
pay more than one weeks’ salary.
[22]
Ms
Mopayi explained that the Respondent’s financial position was
the reason for retrenchment and the new structure implemented
by the
Respondent, was informed by its financial position and the outcome of
the skills audit. The Respondent’s employees
had no input into
the new structure.
[23]
In
respect of the skills audit, Ms Mopayi explained that 21
st
Century, an HR company, was contracted to conduct a skills audit for
the Respondent and in doing that, they considered the required
qualifications for a position and they looked at the incumbent of the
position. The outcome of the skills audit was a finding that
the
organisation was not adequately equipped and the employees were not
fit for their jobs as they did not have proper qualifications.
This
made it difficult for the Respondent to carry out its mandate.
[24]
A
“Turnaround Strategy and Operational Planning 2016/17 –
2018/19” (the Strategy) was drafted in response to the
outcome
of the skills audit and the qualified audit by the Auditor General
and its purpose was to improve efficiency and ensure
sustainability.
Ms Mopayi explained that each department was looked at but specific
attention was given to the finance department,
as the focus there was
to appoint staff with knowledge of accounting principles. The finance
department is regarded as a strategic
department and crucial to the
attainment of a positive financial outcome.
[25]
The
Strategy was to be implemented during the 2016/17 financial year and
the process was to take place over three financial years.
The new
organisational structure was approved on 26 May 2016. Ms Mopayi
explained that prior to the implementation of the Strategy,
the
option to shut down the organisation existed.
[26]
Ms
Mopayi testified that the Applicant was employed in the finance
department as a payroll administrator. The skills audit indicated
that the finance department needed urgent attention to ensure that
staff with knowledge of accounting principles be appointed in
the
said department. The qualification required for payroll administrator
was a national diploma in accounting principles and the
Applicant did
not have such a qualification. Ms Mopayi testified that the finance
department played a strategic and crucial role
to ensure that the
Respondent attains a positive audit outcome, which is key in ensuring
that the Respondent receives funding from
the Department of Arts and
Culture and there was a risk to have an unqualified person in this
department.
[27]
The
purpose of the new structure was to improve the Respondent’s
financial position, to improve efficiency and to ensure continuity
going forward as well as to improve the qualifications across the
entire organisation to ensure that it meets its mandate.
[28]
In
the section 189(3) notice, the method of selecting employees to be
retrenched was recorded as that the listed positions would
be
redundant with the implementation of the new structure, as approved
by Council on 26 May 2016 and any vacancies or combined
roles that
arose, would be advertised and filled on the basis of the best
qualified person for the job. Ms Mopayi testified that
there was no
consensus seeking process with regard to the selection criteria as
the criteria was the direct response to the outcome
of the skills
audit.
[29]
Ms
Mopayi testified that the Respondent took measures to avoid or
minimize dismissal by embarking on a business improvement plan
in
2015, which was specifically implemented as an alternative to
retrenchment. The Respondent tried to save costs by implementing
no
salary increases, reducing overtime, supply chain processes were
reviewed to ensure cost savings and leave days were capped
for cash
payouts. She explained that these initiatives are still in place
since 2015 and that it resulted in a slight improvement
on the
Respondent’s financial side.
[30]
In
respect of the timing of the dismissals, Ms Mopayi explained that the
CEO announced the critical state of the Respondent in November
2015
and the implementation of the Strategy changed the timing of the
retrenchments from 2015 to 2016 and that the retrenchments
were
introduced over a period of three years.
[31]
Ms
Mopayi’s evidence on selection criteria was that the position
of the Applicant was redundant as a direct result of the
skills audit
and the position she held, did not form part of the new structure.
She explained that the new position was more from
a financial
perspective and the qualifications required for the post are
different. Previously the required qualification was a
diploma which
took less than one year to complete and the new requirement was a
national diploma that required three years of study.
The Applicant
did not possess the required qualification. Ms Mopayi explained that
the selection criteria were the redundancy of
positions and once the
affected employees were told that their positions were redundant,
they were not afforded an opportunity
to consult on that. The
Applicant never agreed to the selection criteria.
[32]
In
cross-examination Ms Mopayi testified that the position of payroll
administrator that was previously occupied by the Applicant
no longer
existed on the new organogram and the new position in the new
structure is ‘payroll clerk’, for which position
the
Applicant did not have the required qualification.
[33]
Ms
Mopayi conceded that the Applicant was a payroll administrator since
2012 and that she never poorly performed her duties in that
position.
Ms Mopayi was unable to show the job description and minimum
requirements for ‘payroll clerk’ as such was
not placed
before Court, for reasons Ms Mopayi was unable to explain. She
explained that the Applicant was retrenched because she
did not have
a national diploma in finance and the post of payroll administrator
was not part of the new structure. Ms Mopayi explained
that the
duties of the payroll clerk include the administration of the payroll
and input into the payroll.
[34]
Ms
Mopayi conceded that the minimum requirements and job
responsibilities for ‘payroll clerk’ were never discussed
with the Applicant during the consultation process and that she was
never given an opportunity to discuss the said position with
the
Respondent during the consultation process. She further
conceded that the Applicant was not told about the required
qualification and that that was the reason for her retrenchment. Ms
Mopayi’s response to a question from the Respondent’s
counsel as to whether the Applicant could have obtained the required
qualification, was strangely enough that the Applicant never
proposed
that. It is unthinkable that Ms Mopayi could concede that the
Applicant was never told about the required qualification
and in the
same breath expect her to make a proposal in respect of the required
qualification.
[35]
The
new structure was approved on 26 May 2016. Ms Mopayi explained that
the Respondent’s Council took a decision to make positions
redundant based on the skills audit. In terms of the section 189(3)
notice, ten positions were redundant and the incumbents of
all ten
positions were retrenched. The Applicant’s experience in other
departments or her ability to perform the functions
of ‘payroll
clerk’ was never discussed with her as the skills audit
automatically excluded the Applicant.
[36]
In
re-examination, Ms Mopayi was asked about the Applicant’s case
that her selection for retrenchment was predetermined upon
which Ms
Mopayi responded that when the organogram was approved, the
Respondent knew that the position of payroll administrator
would be
affected in a retrenchment process. The Applicant was not appointed
in any other position as she never applied for another
position.
[37]
The
Applicant testified that she was employed by the Respondent in March
2002 and she was dismissed in September 2016. The Applicant
testified
that she first became aware of the fact that she was affected by a
retrenchment process on 11 July 2016 when she received
the section
189(3) notice. The said notice informed her that the Council approved
a new organogram and that her position became
redundant. A meeting
was held with her on 18 July 2016 and during this meeting she was
informed that the reason for her retrenchment
was the new organogram
and the business plan which had been approved on 26 May 2016 and the
fact that her position was redundant.
[38]
The
Applicant testified that there was no discussion about qualifications
and at the time of the meeting, she had not received a
copy of the
organogram. No advertisement or job descriptions were discussed and
she was not informed about the possibility to apply
for any
advertised position. She explained that nothing, apart from the fact
that her position was redundant, was discussed. The
Applicant was
unaware of the outcome of the skills audit or the requirement of a
national diploma and none of that was discussed
with her.
[39]
The
Applicant testified that she had done the Respondent’s payroll
for a period of four years without a qualification and
the lack of
her qualification was not discussed at any point. She was only told
that her post was redundant and there was no discussion
about
alternatives and she only learnt in Court about the required
qualification.
[40]
The
Applicant testified that there was no discussion about her previous
experience or selection criteria as she was only told that
her
position was redundant due to the new structure.
[41]
The
Applicant testified that she has been looking for employment since
her retrenchment but she is still struggling to find employment.
[42]
In
cross-examination, the Applicant was asked why she did not apply for
a position or asked to see the available vacancies. The
Applicant
explained that she asked for the organogram and she had no idea what
positions were available.
Analysis
[43]
I
will now deal with the issues this Court has to decide.
Substantive fairness
[44]
The
first issue I have to decide is whether the Applicants’
dismissal was substantively fair.
[45]
The
Applicant’s challenge in respect of substantive fairness is
two-fold. Firstly, it is disputed that there was a general
need to
retrench and the Applicant’s case is that the functions she
performed at the time of her dismissal, still exist and
are still
performed. Secondly, the selection criteria applied, was not
reasonable.
The
need to retrench
[46]
The
evidence placed before this Court is that the Respondent received a
qualified audit from the Auditor General, it conducted a
skills audit
and came up with a new structure and Turnaround Strategy. Part of the
plan was to retrench ten employees
per
annum
over
a period of three years from 2016.
[47]
The
results of the skills audit indicated that the Respondent was not
adequately equipped and employees were not fit for their positions.
The organisation was re-aligned and in terms of the new structure,
the payroll administrator position previously occupied by the
Applicant became redundant and the new position responsible for the
payroll was that of the payroll clerk. The skills audit indicated
that the payroll clerk has to have a national diploma as a minimum
qualification.
[48]
Ms
Mopayi testified that the position of payroll administrator no longer
existed on the new organogram and the new position in the
new
structure is ‘payroll clerk’, for which position the
Applicant did not have the required qualification. As the
Applicant
does not have a national diploma, she was automatically excluded from
the new structure and she was disqualified from
further employment
with the Respondent. She explained that the core function of the
payroll clerk was to do input into the payroll
and the core function
of the payroll administrator was the same. The title changed but the
function remained essentially the same.
[49]
Ms
Mopayi testified that the functions of the payroll clerk are
essentially the same as those of the payroll administrator and it
was
more a change in title rather than a change in functions with the
additional requirement of a national diploma. Ms Mopayi further
explained that the payroll system used by the Respondent is the VIP
Payroll system, which is an easy system and does not require
any
formal qualification or degree. It is undisputed that the Applicant
was the payroll administrator for a period of four years
prior to her
retrenchment and that there were no complaints in respect of her
performance and the fulfilling of her functions in
respect of the
payroll. Although the Applicant was able to perform the duties, she
did not have the required qualification.
[50]
In
South
African Airways v Bogopa and Others
[2]
the
Labour Appeal Court has held that:
‘
The
question, which arises, is what the obligation of an employer is in
relation to the dismissal of employees for operational requirements
when it does away with an old structure and adopt a new structure
(for operational requirements). An employer has an obligation
to try
and avoid the dismissal of an employee for operational requirements.
This obligation entails that an employer may not dismiss
an employee
for operational requirements when such employer has a vacant
position, the duties of which the employee concerned can
perform with
or without at least minimal training. Where the employer has a
vacancy and the employee can perform the duties attached
to that
vacancy, the employer would be acting unfairly in dismissing the
employee without offering the employee such a position
and the
employee, having accepted the offer, fails to perform the duties
attached to that position satisfactorily, the employer
can deal with
the case as a case of poor performance.’
(footnotes
omitted)
[51]
It is
evident to me that the only reason why the Applicant was retrenched
is because she did not have a qualification in circumstances
where
she was able to perform the duties and functions of the position for
more than four years without such qualification, where
the payroll
system used by the Respondent is an easy one that does not require a
tertiary qualification and where the only basis
for this requirement
is the outcome of a skills audit.
[52]
There
was no evidence placed before this Court to show how the retrenchment
of the Applicant assisted the Respondent in becoming
more efficient
or how it assisted to save costs or contributed to the long term
sustainability of the State Theatre. In fact, those
reasons were pale
in comparison with the Respondent’s fixation on the required
qualification.
[53]
There
was also no evidence to show that the Applicant did not possess the
necessary skills to perform the functions attached to
the position of
payroll clerk. This Court cannot accept the Respondent’s
ipse
dixit
that the Applicant was not qualified for the position of payroll
clerk, without evidence to substantiate and support such a version.
[54]
Ms
Mopayi’s evidence was superficial in that she was only able to
say that a qualification was required, but she did not tell
this
Court why it was required and why, apart from not having the
qualification, the Applicant was not able to perform the Respondent’s
payroll duties.
[55]
The
Respondent did nothing more but to follow a ‘cast in stone’
process based on a skills audit and a plan to retrench
ten employees
per
annum
for
three years, no matter what. The Respondent never interrogated the
outcome of the skills audit, and if they did, it was not
evident from
Ms Mopayi’s evidence. The Respondent never questioned the
results of the skills audit in respect of the payroll
clerk position,
why a tertiary qualification was necessary when the system was easy
and required knowledge of the operation of
the VIP Payroll system,
rather than a formal qualification and why the Applicant should be
dismissed, purely because of the fact
that she did not have such a
qualification, in circumstances where she performed the function for
four years without complaints
about her performance and evidently was
able to do that without the ‘required’ qualification.
[56]
The
Respondent dismally failed to show that a tertiary qualification was
a requirement for the position of payroll administrator
or payroll
clerk and that the fact that the Applicant did not possess such a
qualification, was a fair reason to retrench her.
[57]
The
requirement of a tertiary qualification was introduced as an
ex
post facto
requirement
which did not justify the Applicant’s dismissal.
Selection criteria
[58]
The
challenge in respect of selection criteria is two-fold. On the one
hand the Applicant challenges the application of the criteria
and on
the other hand, the Applicant’s case is that there was no
consultation on the criteria. I will deal with the entire
challenge
in respect of the selection criteria at once, although part of it is
a challenge in respect of the procedural fairness.
[59]
The
evidence of Ms Mopayi showed that the new structure was approved on
26 May 2016 and the Respondent’s Council took a decision
to
make positions redundant based on the skills audit. In terms of the
section 189(3) notice, ten positions were redundant and
the
incumbents of all ten positions were retrenched.
[60]
Ms
Mopayi’s evidence on selection criteria was that the position
the Applicant occupied was redundant as a direct result of
the skills
audit. The Applicant did not possess the required qualification for
the position of payroll clerk and she was therefore
automatically
excluded. This is once again indicative of the Respondent’s
approach and attitude in respect of the skills
audit and the
retrenchment of its employees. An employee who was able to perform
the functions in respect of the Respondent’s
payroll, was
automatically excluded because a skills audit indicated that a
qualification was required for a position the Respondent
knew very
well did not require a tertiary qualification.
[61]
The
Applicant’s case is that the selection criteria was never
discussed with her. In the pre-trial minute the Respondent recorded
that the Applicant was provided with the selection criteria and all
documentation that influenced the Respondent’s selection
process. The Respondent further stated that the Applicant was
consulted extensively and provided with the necessary documentation
to understand the selection criteria.
[62]
In
her evidence Ms Mopayi however made a turnabout from the position set
out in the pre-trial minute when she testified that there
was no
consensus seeking process with regard to the selection criteria as
the criteria was the direct response to the outcome of
the skills
audit. Ms Mopayi explained that the selection criteria were the
redundancy of positions and once the affected employees
were told
that their positions were redundant, they were not afforded an
opportunity to consult on that. The Applicant never agreed
to the
selection criteria.
[63]
The
Respondent’s claim that the Applicant was extensively consulted
on the selection criteria is not supported by its own
witness and I
cannot but accept that the Applicant was not consulted on the
selection criteria.
[64]
The
Applicant was dismissed in a process where the selection criteria was
never discussed or disclosed. The Respondent’s reason
for the
Applicant’s dismissal, namely her lack of qualifications, was
never communicated to her.
[65]
In
argument, Ms Wilson for the Respondent, referred to the judgment
handed down in
Nylin
Colin van Staden and 13 Others v Telkom SA (SOC) Limited
[3]
where
the Court was faced with a challenge in respect of selection criteria
after the employer embarked on a restructuring exercise.
A perusal of
the said judgment shows that it does not support the Respondent’s
case and it is not clear why Ms Wilson brought
this judgment to my
attention, seeing that she was representing the employer and the
judgment did not assist her case.
[66]
Be
that as it may, in
Nylin
Colin van Staden
the Court emphasized that section 189(2) and 189(7) of the LRA show
that the method of selecting employees to be dismissed is placed
high
on the issues to be consulted upon and the legislature obliges
consulting parties to engage in a meaningful joint consensus-seeking
process to attempt to reach consensus on the method of selection. The
method of selection is as important as measures to avoid
or minimize
the number of dismissals. It was held that the Court must be more
vigilant on the issues of selection criteria, given
the potential of
abuse and unfairness.
[67]
The
LRA places primacy on an agreed method of selection and in
Nylin
Colin van Staden
the
Court emphasized that an employer must double its efforts during a
consultation process to reach an agreement on the selection
criteria
and failure to do so, simply means that an employer invites the
court’s scrutiny on the method it employs.
[68]
The
use of qualifications as selection criteria, opens the door for this
Court to assess whether such criteria is fair and objective.
Lack of
qualifications on its own as criteria is unfair, particularly where
the employees had job security and where the LRA protects
them from
being unfairly dismissed.
[69]
It is
trite that fairness requires that employees who are selected for
retrenchment on the basis of lack of skills or qualifications,
should
be afforded an opportunity to make representations on that.
In
casu
the
Respondent’s retrenched the Applicant, using the skills audit,
conducted by outside consultants, as the basis for retrenchment.
The
skills audit indicated a tertiary qualification as a requirement,
without considering the workplace specific requirements.
It cannot be
a fair basis to deny an existing employee her job security, more so
where she had been performing payroll functions
for more than four
years.
[70]
On
the Respondent’s own version, there was no consultation on the
issue of selection criteria.
Procedural fairness:
[71]
The
second issue to be decided is the procedural fairness of the
Applicant’s dismissal. The Applicant’s case is that
the
Respondent failed to engage her in a joint consensus seeking
consultation process, as required by the LRA.
[72]
The
Respondent’s position, as recorded in the pre-trial minute, is
that it strictly complied with the provisions of section
189 of the
LRA. A consultation meeting was held on 18 and 19 July 2016 and this
meeting constituted consultation with the Applicant
as envisaged in
section 189(2) and (3) of the LRA.
[73]
The
following is undisputed based on the evidence presented by the
parties:
73.1. The Respondent’s Council
approved a new structure on 26 May 2016;
73.2. On 6 July 2016, during a
meeting, the Respondent’s employees were informed that the
Respondent would implement a new
organisational structure and that
ten employees
per annum
would be retrenched over the next
three years;
73.3. On 11 July 2016, Ms Mopayi
handed the section 189 notices to all the affected employees;
73.4. The Respondent met with the
Applicant on 18 July 2016 as part of the section 189 consultation
process. The Respondent informed
the Applicant that her post was
redundant;
73.5. During the said consultation,
the Applicant and the Respondent did not discuss and consult on the
selection criteria, alternatives
to retrenchment, the Applicant’s
previous experience, vacancies available in the new structure, the
job description and qualifications
required for the post of payroll
clerk;
73.6. The Applicant did not discuss
selection criteria or alternatives to dismissal with the Applicant
because she was automatically
excluded from the new structure because
she did not have the required qualifications.
[74]
Section
189(2) of the LRA requires a joint consensus-seeking process and an
attempt to reach consensus on appropriate measures to
avoid the
dismissal, to minimize the number of dismissals, to change the timing
of the dismissals, to mitigate the adverse effect
of the dismissal,
the method of selecting the employees to be dismissed and severance
pay.
[75]
It is
evident that the issues required by the LRA were not discussed as the
Respondent was set on retrenching ten employees
per
annum
and
was set on retrenching the Applicant for reasons related to her lack
of qualification.
[76]
Ms
Mopayi conceded that the Applicant was not told about the required
qualification and that it was the reason for her retrenchment.
The
Applicant’s experience in other departments or her ability to
perform the functions of ‘payroll clerk’ was
never
discussed with her as the skills audit automatically excluded the
Applicant. No amount of consultation would have changed
the
Applicant’s fate as she was automatically excluded and she had
to face the axe.
[77]
The
Respondent did not engage in a joint consensus-seeking process and
made no attempt to reach consensus on the issues required
by the LRA.
The Respondent followed a mechanical process without any real effort
to engage the Applicant on the prescribed issues.
[78]
In
view of my aforesaid findings, it follows that the Applicants’
dismissal was unfair.
Costs
[79]
Costs
should be considered against the provisions of section 162 of the LRA
and according to the requirements of the law and fairness.
[80]
Had
it not been for the fact that the Applicant was represented by a
trade union, I would not have hesitated to grant a cost order
in her
favour.
[81]
In
the premises, I make the following order:
Order
1.
The
Applicant’s dismissal is procedurally and substantively unfair;
2.
The
Applicant is awarded compensation equivalent to 12 (twelve) months’
salary, calculated at the rate of remuneration on
date of dismissal;
3.
There
is no order as to costs.
_____________________
Connie Prinsloo
Judge
of the Labour Court of South Africa
Appearances:
For the Applicant: Mr van der Hoven
and Ms Nel of Solidarity
For the Respondent: Advocate K Wilson
Instructed by: Motalane Kgariya Inc
Attorneys
[1]
Act 66 of 1995 as
amended.
[2]
(2007) 11 BLLR
1065
(LAC) at para 60.
[3]
Unreported case
number JS 95/15, handed down on 11 May 2018.