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 123
|
|
Pheto v BNT Masinga Trading and Projects (Pty) Ltd (JS284/17) [2019] ZALCJHB 123 (28 May 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
JS
284/17
In
the matter between:
HOPE
TSHEPO
PHETO Applicant
And
BNT
MASINGA TRADING AND PROJECTS (PTY)
LTD
Respondent
Heard
:
11 February 2019
Delivered
:
28 May 2019
Summary:
Application to have the applicant’s dismissal declared
Procedurally
and substantively unfair.
JUDGMENT
RAPHULU,
AJ
Background
[1]
The applicant was employed by the respondent as its SHEQ Manager,
responsible for Occupational Health and Safety. He was retrenched
from that position in February 2017.
[2]
The respondent was late in paying salaries for its employees in
respect of the months of August and September 2016. The respondent
contends that, this is because of its difficult financial position.
The applicant contends that he understood that the respondent’s
client, the Department of Public Works, was late in paying the
respondent, hence the late payment to employees, but that there
were
funds available.
[3]
The respondent engaged a company called Yellowstone, run by one
Lesley Brewitt, to take over some if its projects. It also engaged
the services of Mr Brewitt as a consultant, to assist it in its
financial management and in its attempt to rescue its business.
[4]
The respondent contends that its auditors told it that its employees
earned too much, as none of its employees earned below
R20 000 per
month.
[5]
The respondent commenced the process as required by
section 189
of
the
Labour Relations Act 66 of 1995
, as amended (“LRA”),
by issuing
section 189
(3) letters to all its employees, including
the applicant.
[6]
On the same day (it is in dispute whether before or after the
applicant was issued with his
section 189
(3) letter), the applicant
submitted a grievance to one Mr Zoyisile Ngetu, the respondent’s
Human Resources Manager. The
grievance was lodged against Mr Brewitt,
based on alleged bad treatment of the applicant at a meeting that
took place on 31 January
2017, and Mr Brewitt’s alleged bad
treatment of other employees of the respondent.
[7]
It is common cause that other than being issued with the
section 189
(3) letter, no consultations as required by
section 189
of the LRA
took place in relation to the applicant.
[8]
The applicant’s case is that he was prepared to engage in the
s189
process, but that when he got to the meeting, it was Mr Brewitt,
the very person he had laid a grievance against, who was running
the
process. The applicant’s case is that Mr Brewitt, by virtue of
the fact that he was not an employee of the respondent,
was a person
that the applicant viewed as unauthorized to run the process, and
that he challenged Mr Brewitt on this.
[9]
The applicant’s case is that Mr Brewitt told him that he was
being dismissed with immediate effect, and that he told the
applicant
to leave the company laptop and keys behind. The applicant’s
case is that he found this confusing because on the
one hand the
section 189
(3) letter invited him to make representations, but Mr
Brewitt was telling him that his dismissal was with immediate effect.
The
applicant contends there was no need for him to be told by Mr
Brewitt to leave the company laptop and keys behind, as he was still
an employee of the respondent, and he had work to do.
[10]
The applicant alleges that his retrenchment was procedurally unfair
in that he was called into a meeting, handed the
section 189
(3)
letter, told that he was being retrenched with immediate effect, told
to do as he pleased with the letter, and told to hand
in his company
computer and keys.
[11]
The applicant alleges that his retrenchment was substantively unfair
in that the respondent was not in financial difficulty
as it alleges,
that it was being paid late by its client, the Department of Public
Works, but not that it was a matter of it not
having the finances,
and warranting his retrenchment.
[12]
The respondent’s case is that it had every intention to consult
with the applicant as required by
s189
, but that its intentions were
thwarted by the applicant’s behaviour. The respondent contends
that the applicant became aggressive
and threatening, that he said he
would take the company down, and that it could not engage with the
applicant, as the applicant
would not participate in the consultation
process.
[13]
Under cross-examination, it was put to the applicant why he took so
long to lodge a formal grievance. The applicant testified
that he
took time to lodge the grievance because he first attempted to
address the issue with Mr Mbheri and Mr Masinga, but when
it became
apparent to him that they were not going to intervene, he then lodged
a formal grievance. It was put to the applicant
that Mr Masinga’s
brother was there and witnessed the
s189
letter, therefore the
applicant could have spoken to the brother. It was put to the
applicant that the full context should have
been considered by the
applicant, and that the statement made by Mr Brewitt that he could
leave immediately did not necessarily
mean that the applicant was
dismissed. It was put to the applicant why he did not follow the
section 189
(3) letter, and disregard Mr Brewitt, who was a “long
ugly word”. It was put to the applicant that when he was told
to do whatever he wanted to, why did the applicant not comply with
the
section 189
(3) letter and make his representations.
[14]
It was put to the applicant that he was holding the company ransom by
not responding to the
section 189
(3) letter, as he wanted his
grievance against Mr Brewitt to be dealt with first, and that he
lodged the grievance in order to
take the company’s attention
off the
s189
process. The applicant denied this. It was put to the
applicant that the word “engage” goes both ways and that
if he
wanted information, he should have asked for it. The applicant
responded that he was asked to leave immediately, and therefore he
was not given the opportunity to engage with the company. It was put
to the applicant why he did not go to his lawyer, as he did
for the
grievance. The applicant responded that he thought it was the right
thing, to go to the CCMA for help. It was put to the
applicant that
losing his job was more important than a grievance against Mr
Brewitt, and that he should have accordingly taken
legal advice.
The applicant responded that he had gone to the CCMA to seek
assistance in this regard.
[15]
Mr Mbheri testified that the applicant never discussed his problem
with Mr Brewitt with him, prior to lodging a formal grievance.
[16]
The respondent contends that the instruction was for the applicant to
leave, and to leave the laptop etc. behind so there could
be business
continuity despite the applicant being very upset.
[17]
The respondent, through Mr Mbheri’s testimony, contends that
the HR Manager was the first person to receive the
section 189
(3)
letter, he then decided not to become part of the process in relation
to the other employees and left, and that much later
he returned and
gave Mr Mbheri the applicant’s grievance letter, after the
applicant had already received his
section 189
(3) letter. The
respondent contends that at the time that the applicant received his
section 189
(3) letter, the respondent was not aware that the
applicant had laid a grievance against Mr Brewitt.
[18]
The respondent alleges that when the applicant received the
section
189
(3) letter he became very upset, refused to sign the letter, left
the room, and only later returned and signed the letter. The
respondent contends that it was Mr Mbheri who was doing the
explaining of the
s189
process, and that Mr Brewitt was assisting
him. According to the respondent, the reason Mr Brewitt was assisting
Mr Mbheri with
the process is because Mr Masinga fell ill and could
not be there, and Mr Ngetu, the Human Resources manager, became an
affected
employee in the process and therefore chose not to consult
the other employees.
[19]
The respondent alleges that the applicant was issued with the
s189
(3) letter as required by the LRA, that the applicant became violent
and that even Mr Mbheri testified that he was frightened of
the
applicant, that the applicant said that he would take the company
down, and that he indicated that he was not going to be part
of the
consultation process.
[20]
The respondent contends that it took the company laptop as it was the
only way to access the Health and Safety system on the
company’s
server and ensure business continuity, that it had to take the laptop
as it could not operate without health and
safety, and it was
worried, as the applicant was the only person who had access to that
system through the company laptop.
[21]
The respondent contends that the applicant should have complied with
the contents of the
s189
(3) letter and made his representations, and
that the applicant cannot use Mr Brewitt as a reason for not engaging
in the consultation
process.
[22]
The respondent contends that just as the applicant took legal advice
in lodging the grievance, the applicant should have done
the same
after receiving the
s189
(3) letter, and thereafter provided the
respondent with his representations.
[23]
The respondent contends that it had a substantive reason for the
applicant’s retrenchment, as evidenced by the late payment
of
salaries for August and September 2016, the non-payment of the
year-end bonus for 2016, and advice from its auditors that it
had too
many high earning employees as none earned less than R22 000 per
month.
[24]
The respondent contends that the applicant subsequently got his
company laptop back under supervision, purportedly to access
his
personal emails, but that he in fact proceeded to wipe everything off
that laptop, including all the health and safety material.
[25]
The respondent contends that had the applicant complied with the
section 189
(3) letter and made his submissions, the process could
have been followed as planned and the applicant’s dismissal
even avoided,
as the applicant’s role could have been combined
with that of another one of its employees, Mr Viljoen, due to the
fact that
the applicant had both skill sets of Health and Safety, as
well as those of the Quality job held by Mr Viljoen.
[26]
The respondent contends that of the approximately 40 employees
employed by the respondent, it ultimately retrenched 32 employees,
and that 8 jobs were accordingly saved.
Evidence
and analysis:
[27]
The parties are in dispute about the role Mr Mbheri played in the
meeting at which the applicant was issued the
s189
(3) letter, about
the reason no consultations took place, about the proposed
retrenchment date, and about the actual retrenchment
date.
[28]
The parties are not in dispute about the fact that the applicant was
issued with the
s189
(3) letter but that no consultation took place
on that day, or on any other day.
[29]
The parties make much of the date of the
s189
(3) letter, the
retrenchment date, as well as the date of the certificate of service
and the date of the UI.19 form. Whilst I appreciate
the date
relevance in contextualizing what time the applicant was given to
revert with his proposals as per the
section 189
(3) letter, and the
time allocated to the
section 189
consultation process as a whole, I
do not think that the dates take us any further in terms of why
consultation simply never took
place. It is trite in our law that the
dates in a
section 189
(3) letter are proposed dates, intended to be
flexible as required by the consultation process. Accordingly, I am
of the view that
whichever version of the dates is accepted, the
question of the lack of consultation is not satisfied.
[30]
The duty to consult when it is contemplated by an employer to dismiss
one or more employees for reasons based on the employer’s
operational requirements, falls on the employer. Similarly, the duty
to have procedurally fair dismissals falls on the employer.
Whilst I
accept that there are circumstances in which an employee is unruly
and refuses to participate thereby making it difficult
for the
employer to consult, I do not believe that this is one of those
circumstances. I say that because, save from the day on
which the
section 189
(3) letter was handed to the applicant, the respondent
took no other steps to try and engage with the applicant.
[31]
In effecting the duty to consult, the employer nominates its
representative, and on whom it entrusts the responsibility. The
respondent entrusted Mr Brewitt with this responsibility. For one
reason or the other, Mr Brewitt did not comply with what the
LRA
requires of the employer and did not consult on any of the
consultation topics on the day the
section 189
(3) letter was issued
to the applicant. Even on the respondent’s version that the
applicant was violent and threatening to
take the company down etc.,
this did not exonerate the respondent from a subsequent attempt to
consult. Especially as on
the same day, either before or after
the applicant’s meeting with Mr Brewitt, but on the same day
nonetheless, the respondent
became aware of the applicant’s
grievance in relation to Mr Brewitt. Based on that awareness, the
respondent would have become
aware of how Mr Brewitt being in the
meeting would have accordingly affected the applicant. The respondent
took no other steps
to reach out to the applicant and attempt to
fulfil its duty to consult. The respondent did not even send follow
up correspondence
to the applicant to record what had transpired at
the meeting that had made consultation not occur. It simply went
ahead and retrenched
the applicant. This rendered the process
procedurally unfair.
[32]
Section 189
(2) of the LRA says that the parties must engage in a
meaningful joint consensus-seeking process, and attempt to reach
consensus.
However, I am of the considered view that this does not
take away the employer’s duty to fairly dismiss an employee,
complying
with the requirements for both procedural fairness and
substantive fairness.
[33]
There is mention of the operational requirement in the
section 189
(3) letter, but by virtue of the lack of consultation, the
operational requirement itself was never delved into and
substantiated
or interrogated in any concrete way.
[34]
In
considering the essence of procedural fairness, our courts have held
that fairness to the employer is considered to be expressed
by the
recognition of the employer’s ultimate competence to make a
final decision on whether to retrench or not, but for
the employee,
fairness is found in the consultation prior to the final decision on
retrenchment. This requirement is essentially
a formal or procedural
one, but it has a substantive purpose, which purpose is to ensure
that the ultimate decision on retrenchment
is properly and genuinely
justifiable by operational requirements.
[1]
An integral connection exists between procedural and substantive
fairness. It is through the constructive engagement implicit in
this
process that the need to retrench is confirmed.
[2]
It is not possible to determine prior to the consultation process
what may emerge from the process, and to what extent these results
may have on the final decision.
[35]
It is trite
in our law that the process of consultation in terms of
section 189
imposes obligations on both parties requiring both to act in good
faith, however, even if the other party adopts delaying tactics,
the
onus remains on the employer to follow a fair procedure as far as
possible and arrive at a fair decision.
[3]
Further, the duty to follow procedure on employers is significantly
higher in regard to dismissal for operational requirements
than it is
in regard to dismissal for other reasons.
[4]
[36]
The
consultative process has value even if the fate of the employee is
apparently already decided and, even if dismissal is unavoidable,
adequate consultation is required on the various topics under
section
189.
[5]
A court
determining the fairness of a retrenchment must consider, in addition
to the matters for which
section 189
provides, whether the employer
really needed to retrench, what steps it took to avoid retrenchment,
and whether a fair criteria
were employed in deciding whom to
retrench.
[6]
The courts
function in scrutinising the consultation process is not to
second-guess the business efficacy of the employer’s
final
decision, but to pass judgment on whether the ultimate decision
arrived at was genuine and not a sham, and on whether it
was a
rational commercial or operational decision, properly taking into
account the result of the consultation process.
[7]
[37]
The present matter is one where, without proper justification,
procedural fairness has not been complied with. As to substantive
fairness, the lack of procedure left the substantive reason for the
retrenchment without having been delved into as required by
the LRA.
[38]
In the premises, I make the following order:
Order:
1. The applicant’s
retrenchment was procedurally and substantively unfair.
2. The respondent is
ordered to pay the applicant compensation equivalent to 12 months’
remuneration, payment is to be made
within 15 days of this judgement.
_______________
L
Raphulu
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant: Advocate QM Dzimba
Instructed
by: Kobras Attorneys
For
the Respondent: BC Edwards of BE Labour Law and Associates
[1]
SACTWU
v Discreto (A Division of Trump & Springbok Holdings)
[1998]
12 BLLR 1228 (LAC).
[2]
Keil v
Foodgro
[1999]
4 BLLR 345 (LC).
[3]
NUM v
Crown Mines Ltd
[2001]
7 BLLR 716
(LAC);
NUMSA
v Ascoreg
(1999) 20
ILJ
2649 (LC).
[4]
Chetty
v Scotts Select A Shoe
(1998)
19 ILJ 1465 (LC). See also
Maritz
v Calibre Clinical Consultants (Pty) Ltd
[2010] JOL 24936.
[5]
Whall v
BrandAdd Marketing (Pty) Ltd
[1999] 6 BLLR 626
(LC).
[6]
Sikhosana
v Sasol Synthetic Fuels
[2000]
1 BLLR 101 (LC).
[7]
SACTWU
v Discreto (A Division of Trump & Springbok Holdings)
[1998]
12 BLLR 1228
(LAC). See also
Woolworths
(Pty) Ltd v SACCAWU
[2017]
12 BLLR 1217
(LAC).