About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 24
|
|
Keet v Denel SOC Ltd (JS 727/2013) [2019] ZALCJHB 24 (20 February 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JS 727/2013
In
the matter between:
PIETER
SEXTUS KEET
Applicant
And
DENEL
SOC LTD
First Respondent
HERMANUS
LEMMER
Second
Respondent
Delivered:
20 February 2019
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
The applicant (Keet) commenced his employment at the Denel Personnel
Services
(DPS) in August 1997, which was then a separate
juristic entity and a subsidiary of Denel. In November 2005 he
was appointed
as System Manager OSIS Corporate Reference Data (CRD).
He performed his duties at the headquarters of the South African Air
Force
(SAAF) until the termination of his services on 30 March2013
on account of Denel’s operational requirements.
[2]
The need to retrench and procedural fairness is not disputed. It is
further
common cause that Denel had retrenched over 400 employees
when in December 2012, SAAF terminated its long standing
contract
in terms of which it was supplied with skilled labour. Keet
however contends that his retrenchment was substantively unfair.
The
common cause facts:
[3]
The following as per the parties’ signed pre-trial minutes are
recorded
as being common cause;
3.1
SAAF had entered into a skills service agreement (The AMG Contract)
with Denel
in terms of which the latter seconded/supplied personnel
to the former to perform certain specific tasks at its bases.
3.2
SAAF had in
December 2012 issued a notice to terminate the contract with
effect from 31 March 2013. As a result,
Denel embarked on a
retrenchment process in terms of the provisions of section 189A of
the Labour Relations Act (LRA).
[1]
3.3
Following
consultations and facilitation processes, a retrenchment agreement
was reached between Denel and representative unions.
Keet was a
member of Solidarity, which was party to those consultations. Central
to this dispute is the application or non-application
of clause 3 of
the agreement which makes provision for the selection
criteria
[2]
.
3.4
On 27 February 2013, Denel presented a document titled;
‘
SAAF Positions with allocated Denel/DPS people (after
selection criteria applicable 27 February 2013),
in
terms of which SAAF required 139 positions to be retained after
1 April 2013.
3.5
A further agreement was concluded with the Unions, in terms of which
it was
agreed that a total of 139 identified positions be retained as
required by SAAF. Thus, if an employee held any one of the 139
positions
identified as at the time of retrenchments, then he or she
would be placed or retained in that post, and the selection criteria
provided for in the main retrenchment agreement would not apply.
3.6
Keet and Lemmer were based at the SAAF at the time of the termination
of the
AMG contract. Lemmer instead of Keet was retained as an
employee by Denel in one of the 139 positions required by SAAF
subsequent
to 1 April 2013. Aggrieved at his non-selection,
Keet subsequently lodged an appeal.
3.7
In an outcome in respect of that appeal in March 2013, Denel’s
stance
was that;
i.
Keet’s position and job title
was that of a ‘Systems
Manager’
ii.
The position that was identified for
retention by SAAF was that of a
‘Codifier’, and not System Manager, which position was
deemed redundant.
iii.
No selection criteria were required
to be applied regarding the
redundant position, and since Keet was not a Codifier, he could thus
not be compared to other Codifiers
or incumbents for that position.
The
dispute:
[4]
The issues in dispute are whether;
4.1
The position held by Lemmer prior to 1 April 2013 and
whether on 20 November 2013,
he (Lemmer) occupied the
position of Technician (Master 1- Codifier Ops Master Technician (The
Codifier).
4.2
Whether the 139 positions required by SAAF were contained in an
agreement concluded
between Denel and the representative unions.
4.3
Whether the selection criteria agreed upon was even required to be
applied in
the event that Keet was a System Manager, whilst Lemmer
was a Codifier.
4.4
Whether Lemmer in any event had the most competent skills per job
specifications.
4.5
Whether the selection criteria were applicable.
4.6
Whether Lemmer would have been selected as one of the 139 positions
to be retained
as required by SAAF, instead of Lemmer, if the
selection criteria were applied.
The
evidence:
[5]
In this case, and in the light of the issues to be considered, the
bulk
of the evidence led and the disputed facts pertained to the
technical aspects of duties performed by both Lemmer and Keet whilst
at SAAF before the retrenchments, and the differences between the
positions of ‘Codifier’ and that of ‘System
Manager’. Johannes Jansen van Vuuren, who had a service of 30
years with Denel and had held various senior positions, testified
that;
5.1
Keet and Lemmer were both seconded to SAAF at Waterkloof Air Force
Base. They
were later transferred to Denel’s Headquarters as
Systems Managers.
5.2
Keet having started as a Fitter in August 1979, became a
Codifier in April 1988.
At some point, his position changed from
Codifier to Technical Writer. Lemmer, who had started as an
Electrician in February 1979
also became a Codifier in
September 1989. Effectively, Lemmer had on the whole, more
length of service in Denel than Keet.
5.3
There are different levels of a Codifier, and one can ultimately
become a Chief
– Master Codifier I. A codifier essentially
works on the Air Force system (OSIS system), and his or her task is
to input
certain documentation on the aircraft system. A Systems
Writer however does different things on the aircraft system. In this
regard,
although Keet was a Technical writer (III), he always
remained a Codifier.
5.4
Keet’s position changed from Technical Writer to Systems
Manager in September 2008.
The change in status was formalised
in September 2010 (even though backdated to September 2008),
and SAAF was informed
of this change in his status.
5.5
At the time that the contract with SAAF was terminated, Lemmer had as
at November 2012,
progressed to Technician Master I Codifier
ops. That was his status at the time that he was transferred to SAAF.
When SAAF gave
notice to terminate the contract, an Infogram was then
sent out to all employees that were to be affected by retrenchments
for
them to confirm and verify their personal details including
positions at the time, dates of employment and years of service. This
was also done jointly with the Unions, which had signed the
verification together with the CEO of Denel Aviation.
5.6
When SAAF terminated the contract, it required 139 positions to be
retained
and Denel had supplied it with the names of employees that
met SAAF’s requirements. This was also after discussions were
held with the Unions.
5.7
Lemmer was a Codifier with over two years’ experience and the
longest
service record at SAAF headquarters at the time of the
termination the SAAF contract. He was then selected for retention as
he
was the most suitable in accordance with the SAAF requirements.
Keet on the other hand was System Manager (Master II). The
SAAF
had however classified both Keet and Lemmer as System Managers from
April 2012 to March 2013.
5.8
Van Vuuren was also part of the appeal panel that considered Keet’s
appeal.
When considering the merits of Keet’s appeal, it was
taken into account that even though he was also a Codifier, Lemmer
had
the longest service in doing codifying work at SAAF. Their
performance rating was compared and they were both regarded as having
performed beyond expected standards over a period of five years.
5.9
Van Vuuren further made reference to a request made by SAAF in 2011
before the
retrenchments for someone to replace one Mr Brits who was
due to retire. The individual selected was to assist the systems
manager
by standardising data; expected to have in depth knowledge of
the system utilised by SAAF, be a technical codifier and competent
to
operate in all spheres of the system. At the time, Lemmer was then
transferred to SAAF as a codifier.
5.10
Under cross-examination, van Vuuren confirmed that he was responsible
for the management of the
contract between Denel and SAAF, and was
stationed at the latter’s premises.
5.11
He also confirmed that he was involved in discussions with SAAF in
regards to which employees
needed to be retained when the contract
came to an end, particularly since SAAF was more concerned with the
retention and transfer
of skills. It was SAAF that decided on which
employees or positions it wanted to retain.
5.12
He conceded that a person classified as a Codifier and a Technical
Writer has better skills that
one who is only a Codifier, and that a
Systems Manager ran the whole system whilst a Codifier only did input
and looked after all
the aircraft parts on the system. He further
acknowledged that a Systems Manager with codifying background could
still do codifying,
whilst an employee who was simply a Codifier
without system management background could not do the reverse.
5.13
His contention however was that since there was only one Codifier
required, and further since
Lemmer was the most suitable, there was
no need to look at the initial selection criteria. Lemmer according
to van Vuuren
had always remained a Codifier as per his job
title.
5.14
Van Vuuren further confirmed that what was required foremost from a
suitable candidate were skills.
He conceded that Keet was a better
performer, and however that the selection committee made no skills
assessment when finally making
a selection. He further testified that
even if there was an overlap between the positions of Lemmer and
Keet, the former would
still have been appointed to the position as
he had a longer service as Codifier.
[6]
Lemmer was also called upon to testify on behalf of Denel. Having
been
retained after the initial retrenchments, he was subsequently
retrenched in April 2015. His testimony was that;
6.1
He was a Codifier since 1988 after completing a training course in
that regard.
He confirmed that he had performed similar tasks as Keet
when they were both based at Voortrekkerhoogte (Thaba Tshwane), until
Keet was moved to another base.
6.2
At some point he was also moved to Waterkloof Air Force Base and had
continued
as Codifier. In July 2001 he had completed a course in
OLCIMS, which was a new codification electronic system, and a
software
programme that belonged to National Codification Bureau. He
testified that Keet had not done that course.
6.3
Having completed that course, he was then responsible for the
training of other
employees from the Navy, the National Defence Force
and the Airforce. Between 2005 and 2011 he had done mainly
codification at
Waterkloof Air Force base. In February 2011 he
had done further training through the SAAF. He denied that he was
ever appointed
as Systems Manager, and that his correct title was
Technician: Master I (Codifier ops Master Technician). A System
Manager according
to Lemmer is the head of any system in the SAAF
(which could be head of Gripen system, weapon system or radar
system).
6.4
Lemmer confirmed that Keet had also done a codification course in
1989. Lemmer
took over the position of System Manager from Brits at
the time of retrenchments, and contended that the position was open
to everyone.
He confirmed however that he took over the position in
his official title as Codifier.
6.5
Upon taking over the position, he had continued with other duties
such as duplications
and item identification, which formed part of
system management rather than codification, which duties were the
same as Keet’s.
He trained two other people and was
subsequently retrenched in April 2015 at which time he was
qualified Master Codifier.
6.6
Under cross-examination, Lemmer confirmed that a selection board was
set up
to decide on who should be retained or not, and that it was
the SAAF that had advised Denel as to which employees should be
retained.
6.7
He confirmed that Keet had seven years’ experience at SAAF
headquarters,
and that even though his skills and experience was on
par with that of Keet, it was Col. Kirsten who had asked for a
codifier from
the item identification section.
6.8
He conceded that he was trained by Brits and Keet even though he also
helped
them. He had taken over Brits’ position which was called
system manager.
6.9
He confirmed that after Keet was retrenched, he had continued to
perform the
same tasks as him and also his tasks, except that he also
had to do codification and train two other people. He conceded that
whether
the position in question was classified as Codifier or System
management, the duties were essentially the same.
[7]
Keet’s testimony was that;
7.1
He was a codifier as Lemmer since 1998, and that his functions at
SAAF entailed
receiving information from a codifier, checking it and
feeding it into the system (configuration). He confirmed that
codification
was however only done at Waterkloof.
7.2
He had performed the same tasks and duties as Lemmer and Brits.
Lemmer took
over from Brits even though he (Keet) had trained him. He
contended that their technical skills were not the same, and further
confirmed that his title was that of ‘Systems Manager’,
OSIS Corporate Reference Data’ as confirmed by his letter
of
appointment. He denied that the post required of them to do
codifying.
7.3
He testified that he had a better performance rate and his skills
were higher
than Lemmer’s as he could do more things. His view
was that since Lemmer could not do other things he could, he
was
in a position to train other people that SAAF required to be
trained, and should thus have been retained. He further contended
that prior to Lemmer’s retention, Denel had not interviewed
them or assessed their skills.
7.4
Under cross-examination, Keet confirmed that the SAAF was
Denel’s
client and had made its own choices in terms of its own
requirements as to who and which positions should be retained.
7.5
He confirmed that according to Denel’s own system, the only
person identified
as Codifier was Lemmer, and further conceded that
Lemmer had more codifying experience than him. He could not dispute
it when it
was put to him that there was nothing from the SAAF’s
system that showed that Lemmer was a system manager.
7.6
Keet confirmed that SAAF required posts to be retained per base, and
in accordance
with its requirements; that SAAF did not require or
request a systems manager, and that an agreement had been reached
between Denel
and Solidarity that the selection criteria would be
applied according to SAAF’s base requirements. He conceded that
he and
Lemmer had to compete for the position (of Codifier) requested
by SAAF, but contended that there was a mistake with the list issued
by the SAAF in regards to the positions to be retained.
7.7
He further testified that even though Lemmer’s tasks after his
retention
was to
inter alia
train and transfer skills to the
two employees identified by SAAF as codifiers, these individuals were
nonetheless system managers
and not codifiers.
[8]
Col. Charlie Kirsten (Kirsten), the Airforce’s Senior Staff
Officer
was or is based at OSIS Airforce, Pretoria since
January 2011, and was responsible for the CRD section where
Brits was a system
manager. He was subpoenaed by Keet and testified
that;
8.1
Keet was also in the same section as system manager. The system
managers had
started as codifiers and where then transferred to the
CRD section.
8.2
The SAAF only needed system managers and not codifiers according to
Kirsten.
According to Kirsten, Lemmer never worked on the OSIS
system, unlike Keet, who was more qualified than Lemmer as the latter
was
only trained as a codifier.
8.3
He further testified that his section did not need a codifier, and he
did not
know how a request for a codifier ended on the SAAF list
compiled in February 2013 that was furnished to Denel.
8.4
He testified that even though he knew van Vuuren and met regularly
with him,
he never called him to clarify the lists furnished to
Denel. He conceded however that van Vuuren would not have known that
a codifier
was not needed.
8.5
He further testified that what was required was someone who could
work on the
OSIS system, and Keet fitted that profile due to his
experience and skills, and could also have trained other personnel.
8.6
In regards to SAAF’s desire to retain skills or to do a skills
transfer,
Kirsten confirmed that no specific request was made in
respect of any particular person. He however confirmed that Lemmer
was indeed
competent, had transferred some skills by training
individuals in the CRD section, and further had experience on the
OSIS system.
8.7
Under cross-examination, he confirmed that the list of 121 (139)
positions required
by SAAF was sent to Denel. He further confirmed
that as per his memorandum dated 14 August 2012, which was
drafted before
the retrenchments, he had indicated that both Lemmer
and Keet were needed due to their experience and skills. He had
however not
raised the matter directly with Denel, even though such
recommendations were made long before the retrenchments.
The
legal framework and evaluation:
[9]
Central to this dispute is whether Keet or Lemmer should have been
retained
in accordance with the SAAF requirements and in terms of the
list of positions it sought to be filled. Aligned to that question
is
whether the selection criteria ought to have been applied or not in
the light of the agreement reached after SAAF had provided
Denel with
a list of positions to be retained.
[10]
The
provisions of section 189(7) of the LRA require an employer to select
the employees to be dismissed according to selection criteria
that
was agreed to with the consulting parties; or where no criteria was
agreed to, criteria that are fair and objective.
The
use of selection criteria that are not fairly and objectively applied
renders a dismissal unfair
[3]
.
Ultimately, a decision on or application of any of the criteria must
be
fair,
consistent, objective, clear and transparent, and serve its purpose,
and must not be meant for any other ends. T
he
duty to show that the criteria adopted was both objective and fair in
its definition and application rests on the employer.
[11]
As already indicated, the parties had agreed on a selection criteria,
which Denel contends
was not applicable to Keet in the light of the
post required to be filled by SAAF. There is no dispute about whether
the criteria
was fair or not. The issue is whether it was applicable
or not.
[12]
Denel’s position was that since SAAF required a Codifier, and
further since Lemmer
was the only qualified codifier with longer
service and experience at SAAF according to its own data base, there
was no need to
apply the selection criteria as agreed between the
parties.
[13]
It is my
view that any enquiry into whether Keet or Lemmer should have been
retained requires an examination of the requirements
and needs of
SAAF as a client following the termination of the AMG contract. From
the list provided to Denel
[4]
,
SAAF required three positions of a Codifier to be retained, and it
was not clear from van Vuuren’s evidence on how ultimately
it
was decided that SAAF only needed one Codifier. This dispute however
ultimately turns on the positions held by Lemmer and Keet
at the time
of the retrenchments in relation to SAAF’s requirements.
[14]
Van Vuuren had testified that his understanding from the list
supplied by SAAF was that
it wanted a Codifier. The evidence of
Kirsten was that what the SAAF needed was a Systems Manager, and not
a Codifier. He had nonetheless
conceded that what was required in
terms of the SAAF’s list was a Codifier, and I failed to
appreciate any dispute surrounding
this issue in the light of an
agreement reached on that list between SAAF and Denel. Furthermore,
that list, despite being discussed
with the unions (where Keet was
present) remained unchanged, and there does not appear anywhere in
the evidence that either Keet,
Solidarity or Kirsten for that matter,
had taken issue with it. To complain after the fact that the list was
not correct in regards
to what SAAF required is in my view clutching
at straws.
[15]
Too much
time and effort was spent under cross-examination of witnesses on
both sides in an attempt to prove or disprove whether
either Keet or
Lemmer were Codifiers or system managers. What is apparent however is
that SAAF needed both a codifier and a systems
manager Co-ordinator
(with the appointment title of A/C Simulator)
[5]
.
It is therefore not correct for Kirsten to suggest that SAAF did not
need one as the list indicates otherwise.
[16]
On the evidence of Lemmer, which remained undisputed, there were
different kinds of system
managers that were heads of different
systems, i.e., Gripen, weapon or radar systems, and to the
extent that this was the
case, it was not clear from that evidence as
to which Keet considered himself suitable for the purposes of
retention. However,
this case is not even about the position of
systems manager, as Lemmer was ultimately retained in the position of
codifier.
[17]
The SAAF in accordance with its final list, which it can safely be
assumed that it was
discussed and agreed to with all decision makers
in SAAF had decided on a Codifier amongst other positions to be
retained. Lemmer
in accordance with Denel’s data base was the
only Codifier, and it would not have been in fulfilment of SAAF’s
requirements
for Denel to have retained any other person for that
position other than a codifier.
[18]
Keet conceded that Lemmer was a Codifier. His primary contention
however was that since
both him and Lemmer were Codifiers and had
done the same functions at SAAF, he deserved to have been retained on
the basis that
he had a longer service at SAAF. Other than the fact
that as at the time of the retrenchment he was not classified as a
codifier,
to the extent that he had any background in codifying, the
issue however remains that during the period that he was at SAAF, his
experience and length of service as codifier was less than that of
Lemmer.
[19]
Even if the overall length of service was to be a consideration for
the purposes of LIFO
and the application of the selection criteria,
Lemmer would still have been retained given his longer period of
service. For the
purposes of Keet’s appeal, all these factors,
i.e
., qualification, experience, number of years, performance
assessment and SAAF’s requirements were looked at. Whether this
exercise was conducted fairly or not is moot, as it was in any event
unnecessary in the light of the automatic consequences flowing
from
the agreement reached with the unions after SAAF had furnished Denel
with a list of posts to be retained and filled.
[20]
Lemmer’s employer (Denel), had classified him as a Codifier as
was further confirmed
in the information and his particulars in the
Infogram. In the end, for the purposes of retention in accordance
with SAAF’s
requirements, the information in the Infogram was
pertinent. Once SAAF had decided on certain positions to be filled,
it was not
for Denel or anyone else to question that decision as SAAF
was a client. It was either Denel filled those positions with SAAF’s
requirements or not. It does not assist Keet to now complain that
Denel used outdated personal information for the purposes of
retention in circumstances where all the affected employees’
information was verified by way of Infogram with the assistance
of
their unions after SAAF terminated its contract.
[21]
Even though
Keet did not say so in many words, central to this application is the
position that was occupied by Brits. As far back
as 2011, SAAF had
planned in anticipation of his retirement. The responsibilities and
requirements associated with that post were
identified, including
that the identified replacement must
inter
alia
,
be a technical qualified codifier
[6]
.
In January 2011, and further in anticipation of Brits’
retirement, in correspondence
[7]
from Lt Col de Beer to van Vuuren, it is again reiterated that there
is a need to find a replacement for Brits when he retired,
and
significantly, Lemmer was identified as having the attributes, and
met the requirements and standards of the post.
[22]
The argument that the correspondence referred to above fortified
Keet’s contention
that what SAAF sought was a systems manager
rather than a codifier is misplaced. When the transfer at the time
was ultimately formalised,
Lemmer was transferred as a codifier, and
not systems manager. To the extent that the correspondence indicated
that Brits retired
at the time that his post was classified as
Technical Support Process Integration, there is further merit in
Denel’s contention
that Keet cannot lay claim to that post, as
it was not classified as System manager in any event.
[23]
In conclusion in regards to the issues to be determined, the position
held by Lemmer prior
to 1 April 2013 and as at
20 November 2013, was that of Technician (Master 1-
Codifier Ops Master Technician
(The Codifier).
[24]
The 139 positions required by SAAF were contained in an agreement
concluded between Denel
and the representative unions, and that list
of positions was agreed to by all the parties. Furthermore, at
paragraph 6 of his
Statement of Claim, Keet had conceded that when
the list of positions sought to be retained was shared and discussed
with the unions,
there was an agreement on those positions as
required by SAAF. There is therefore no merit in the complaint that
the list was not
accurate. In any event and as already pointed out,
there was a position of systems manager required to be retained, and
it was
for Keet to compete for it rather than that of Codifier, as he
was not classified as one as at the time of retrenchments. Even more
significant is that upon the positions being filled as required by
SAAF, that process was also agreed upon between Denel and the
unions,
and Keet cannot in my view suddenly be aggrieved by what his own
union had agreed to. The fact that Solidarity is not a
party to these
proceedings or acting on his behalf is telling.
[25]
The enquiry into whether Keet and Lemmer performed the same tasks at
SAAF headquarters
is equally moot as both positions of codifier and
systems manager were required by SAAF. Since Lemmer was identified as
the only
Codifier according to Denel’s records, there was no
need to apply the selection criteria agreed upon insofar as Keet laid
claim to that position. Any comparison with Keet even if he was
previously a codifier would in any event have ended with Lemmer
being
the ultimate choice by virtue of his skills, and experience per job
specifications.
[26]
Keet had conceded that according to Denel’s own system, the
only person identified
as Codifier was Lemmer, and further conceded
that in regard to codifying experience, Lemmer had more experience
than him. In the
circumstances, Keet’s complaints of unfairness
as a result of his non-selection for retention for the position of
codifier
at SAAF has no merit and ought to be dismissed.
[27]
I have had regard to the considerations of law and fairness and do
not deem it appropriate
to make an order of costs.
[28]
Accordingly, the following order is made;
Order:
1.
The applicant’s claim is dismissed.
2.
There is no order as to costs.
____________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES
:
For
the Applicant:
W
P Bekker
Instructed
by:
Serfontein, Viljoen & Swart Attorneys
For
the Respondent:
JD Crawford of Crawford & Associates
[1]
Act 66 of 1995, as amended
[2]
Which provides;
‘
3.2
Retention of strategically important skills:
(a)
Retention of most competent skills per job specification.
(b)
Retention of most competent skills, as reflected in paragraph 3.2
(a) will take precedence over each of the other
selection criteria
as formulated in paragraphs 3.3 to 3.5.
3.3
Due consideration to the Denel Employment Equity Plan not to
prejudice
ACI percentages as per department (thus, at the time; the
retrenchment process will also not be used to correct the Denel
transformation
requirements)
3.4
Termination of short terms/fixed term contracts (Short-term =
<
12 months) on termination dates, without package.
3.5
LIFO (last in first out) ‘Company continuous employment
service
(In the unlikely event of two or more employees having the
exact same duration of continuous employment in the Company then
applicable
experience relating to the area will be taken into
consideration).
Notes
Applicable
to Paragraphs 3.2: The swop option will be considered and an
applicable matrix to be developed to measure the retention
of the
strategically important skills)”
[3]
CWIU
and Others v Latex Surgical Products
[2006]
2 BLLR 142
(LAC) at paras 94-6.
[4]
Page
110 – 112 of the Amended Trial bundle
[5]
Pages 26 (line 60) 29, (Annexure ‘PK2’)-
Index
to the bundle; and also page 112 of the same bundle
[6]
Page
58 – 59 of the Trial Bundle
[7]
Page
198 id the Trial Bundle