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 224
|
|
Association of Mineworkers and Construction Union and Others v Sisonke Jabula Mining (Pty) Ltd (J1746/19) [2019] ZALCJHB 224 (28 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA,
(held
at JOHANNESBURG)
case
No: J 1746/19
Not
reportable
In the matter between:
the
association of mineworkers and construction union
First
Applicant
THE
AMCU members as per annexure ‘A’
Second
to further Applicants
and
sisonke
jabula mining (pty) ltd
Respondent
Heard
: 27
August 2019
Delivered
: 28
August 2019
Summary:
(S 189A (13) application – alleged failure to engage in
meaningful consultation – document
detailing names, dates of
employment occupations and packages of proposed retrenchees supplied
as requested – claim that
consultation could not be properly
conducted on a whole range of issues until list provided –
consultation on final selection
of retrenchees unduly curtailed –
limited issues outstanding – limited procedural unfairness –
limited compensation)
JUDGMENT
LAGRANGE
J
Introduction
[1]
This is an application under section 189A [13] [c] of the
Labour
Relations Act, 66 of 1995
, to reinstate the individual applicants who
were retrenched until such time as a fair procedure has been complied
with or alternatively
that the court find their retrenchments were
procedurally unfair and order payment of 12 months’
remuneration as compensation.
[2]
In the further alternative, if reinstatement is not granted the
applicants seek an order
that the procedural fairness of the
dismissal should be determined together with any challenge to their
substantive fairness of
the dismissals.
[3]
The respondent claims that it has conducted a fair retrenchment
procedure and accordingly
no relief is competent.
Brief overview of
narrative
[4]
AMCU submitted wage demands on 7 June 2019 to and thereafter received
a
section 189(3)
notice of retrenchment in a letter dated 1 June
2019, which arrived on 12 June. The respondent claimed that
retrenchments were
necessitated by cancellation of part of a contract
it was working on. Initially the number of potentially affected
employees engaged
on that contract was identified as 50 in number.
[5]
Consultation meetings were held on 5 July, 12 July, 7 August and 12
August 2019 under the
auspices of a facilitator appointed by the
CCMA. At the end of each facilitation meeting the facilitator
recorded an outcome report
essentially setting out briefly in point
form the next steps in the process.
[6]
The nub of the union’s complaint that the consultation process
conducted did not amount
to a procedurally fair one was that it only
received details of the proposed retrenchees’ names, job titles
and years of
service shortly before the final consultation meeting on
12 August. It further claims that it had been requesting these
details
from the first consultation meeting on 5 July.
[7]
It claims that until it received these details it could not
meaningfully engage with the
respondent on the following issues:
7.1
the identity of the applicants to be retrenched;
7.2
ways in which the number of employees affected could be reduced;
7.3
avoidance measures;
7.4
ways in which to change the timing of the dismissals;
7.5
ways in which to mitigate the adverse effects of retrenchment;
7.6
selection criteria, and the severance package to be paid to
retrenched employees.
[8]
Until the meeting on 7 August when the union was provided with a list
of names of those
proposed for retrenchment and their packages, there
is no evidence in the outcome reports that they had asked for more
detail than
this. The outcome report of that meeting recorded that
management was to submit a complete list of names, job titles and
years
of service by close of business the following day. The list of
proposed retrenchees with the additional information was provided
to
the shop stewards on 8 August. In argument, the union accepted that
the information had been provided by the respondent but
maintained
that this was too late for it to meaningfully consult on the matters
identified above.
[9]
It should also be noted that at the meeting of 7 August it was
recorded that the union had
made proposals to request an improvement
in the retrenchment packages, that retrenched persons be provided
with training to be
multi-skilled and other issues. It is also common
cause that the retrenchment packages were improved. At the next and
final meeting
on 12 August, it was recorded that the parties would
engage further to try and resolve a dispute around, Last-In,
First-Out (‘LIFO’).
In this regard it appears that the
union had raised two examples of persons whom it considered ought not
to have been retrenched
because of their experience. The respondent
maintained that using the selection criteria of LIFO subject to skill
retention, the
selection of these two individuals was justified
because they had fewer skills than persons with shorter service than
their own.
Evaluation
[10]
The application was timeously launched having been filed on 19
August, less than five days after 44 employees
were retrenched. In so
far as urgency might be considered a distinct requirement of such
applications, I am satisfied the application
was brought timeously in
conformity with
sections 189
A (13) and 189 A (17) (a) of the LRA
[11]
The essential question is whether the union was denied a proper
opportunity to consult in the facilitation
process above. As
mentioned, the crux of the union’s case was that in the absence
of the full details of the proposed retrenchees,
it could not consult
adequately. In fact, it was argued that neither party could consult
meaningfully without that list.
[12]
One difficulty with AMCU’s approach is that on the evidence of
the founding and answering affidavits,
I am not satisfied that the
union has made out a case that it requested these details from the
start of the consultations. It is
true they did request a list but
the only details that were recorded by the facilitator referred to
the names and packages of the
proposed retrenchees.
[13]
However, the list with limited details was only provided at the
meeting on 7 August, even though the request
had been repeated at
both the previous meetings in July and even though approximately
three weeks had passed since the last meeting
in July. This means
that until 7 August the union only had a vague idea of the number of
employees who might be affected and did
not know who had been
identified using the selection criteria of LIFO subject to skill
retention, nor could it know the amount
of the retrenchment packages
that the respondent was proposing to pay those retrenched. The only
reason advanced by the respondent
for not supplying the limited list
earlier was that it was still in the process of trying to reduce the
number of proposed retrenchees.
However, that is a poor reason for
not sharing the provisional proposal with the union earlier. The
respondent would have suffered
no prejudice in disclosing the
provisional list and it undoubtedly would have been of some
assistance to the union in understanding
the scale, identity of
retrenchees and to evaluate what level of compensation retrenchees
would be receiving and to evaluate the
financial impact of any
proposal for an improvement in the packages.
[14]
Had that list been provided sometime before the third meeting, the
union would no doubt have realized the
limitations of a list that
only provided packages and the identity of proposed retrenchees. The
union’s request for a more
detailed list showing the length of
service and occupations of those identified, in all probability would
have been made earlier.
It was strenuously argued by the union that
it ought to have been obvious to the respondent that any list ought
to have included
the details that were only expressly requested at
the meeting of the 7 August. By the same token, it ought to have been
obvious
to the union that it should have requested those details from
the start and not just assumed that details which had not been
specified
would be provided.
[15]
In the end, what is apparent is that the application of selection
criteria had not been resolved by the final
consultation and had to
be deferred until after retrenchment notices were to be issued, which
does indicate that additional time
to deal with the application of
selection criteria had been required and that the parties were unable
to consult fully on it by
the meeting on 12 August. I note also that
even if the union obtained the more detailed list on 8 August there
was no working day
between then and the meeting on Monday 12 August
because Friday 9 August was a public holiday, which it can reasonably
be assumed
would have limited opportunities for feedback and
discussion on the proposed selection before the Monday meeting.
[16]
Nonetheless, I am satisfied that the union was not prevented from
consulting on the need to retrench, general
alternatives to
retrenchment ways to avoid it and the timing of retrenchment because
of the late receipt of the provisional list
of retrench is and the
further more detailed list on 8 August. In the circumstances, I do
not believe that more than an extra week
would have been required to
attempt to reach agreement on the finalization of the list of
employees to be retrenched.
[17]
Consequently, I conclude that the consultation process was unduly
curtailed by the late provision of information
and that it was unfair
to proceed with the retrenchments without attempting to finalize
agreement on the selection of retrenchees
beforehand even if it is
possible that no agreement might have ultimately been reached.
Nonetheless, because the deficiency in
the consultation process was a
limited one I believe that appropriate compensation for such a
procedural deficiency should take
cognizance of the limited
additional need for consultation that was still required.
Order
[1]
The respondent must pay each of the second to further applicants an
amount of compensation
equal to two weeks’ remuneration for the
procedural unfairness suffered as a result of the unduly curtailed
consultation
process.
[2]
No order is made as to costs.
_______________________
R
G Lagrange
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANTS:
P
Moll instructed by Larry Dave Attorneys
RESPONDENT:
Manola
Lukhele