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[2019] ZALCJHB 263
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SASBO - The Finance Union obo Madiba v Nedbank Group Limited (J1754/19) [2019] ZALCJHB 263 (4 October 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: J1754/19
In
the matter between:
SASBO-THE
FINANCE UNION OBO RAPULA MADIBA
Applicant
and
NEDBANK
GROUP LIMITED
Respondent
Heard:
11 September 2019
Delivered:
04 October 2019
JUDGMENT
MABASO,
AJ
Introduction
[1]
The applicant, SASBO – The Finance Union acting on behalf of
Rapula “Madiba”
(the applicant) approached this Court on
26 August 2019 seeking an order against Nedbank Limited (the
respondent) that it acted
unfairly by issuing the letter dated 26
July 2019 without issuing a notice in terms of section 189(3) of the
Labour Relations Act
[1]
(LRA),
and a notice as prescribed by the Respondent’s Retrenchment
policy (the policy) and for failure to appoint a facilitator
as per
the policy. Further, that the respondent be ordered to comply with
the period of 60 days as per its policy, and that the
respondent be
ordered to initiate and then continue with a meaningful joint
consensus-seeking process as envisaged by section 189
read with 189A
of the LRA.
[2]
The respondent in opposing this application raised preliminary
points, namely that
the matter is not urgent and the defences of
estoppel and acquiescence.
Preliminary
points
Urgency
[3]
The respondent contends that the applicant made bald statements in
the supporting
affidavit with regards to the urgency, therefore, does
not comply with the requirements of subparagraph 12.5 of the practice
manual
of this Court which requires a party to properly set out the
circumstances which render the matter urgent and why it should be
heard at the time selected by the applicant.
[4]
Rule 8 (2) of the rules of this Court requires that a supporting
affidavit must state
reasons for the urgency, why urgent relief is
necessary and reasons thereof and why the normal rules of this Court
were not complied
with. However, each case has to be decided on its
own merits. It is common cause between the parties that the notice
that is being
challenged was issued on 26 July 2019. This application
is in terms of sections 189A(13) read with ss 189A(17)(a) of the LRA
which
requires an application to this Court to be lodged within 30
days of the issuing of the notice. However, this application can be
brought even before the notice is issued. What is required is that as
soon as the other party realises that there is a procedural
defect in
the process, then such party can approach the Court on an urgent
basis. The provisions thereof are pre-emptive in that
the Court is
required to supervise the retrenchment process that is ongoing so
that if it is found that such process is not procedurally
in line
with the provisions of the LRA then the Court would be in a position
to make an order compelling the employer to comply
with such
provisions.
[5]
The Constitutional Court in the matter of
Steenkamp
and others v Edcon Limited
[2]
held that:
“
[50]
Well procedural irregularities arise, the process provided for in
section 189A(13) of the LRA
allows for an urgent
intervention of the Labour Court
to correct any such
irregularity as and when they arise so that the integrity of the
consultation process can be restored and the
consultation process can
be forced back on track”
[6]
Taking into account the circumstances in this matter, I conclude that
the urgency
is statutory created as the Court is required to
supervise an ongoing consultation. Therefore, whether a party
properly explained
in the affidavit the reason for the urgency or not
is neither here nor there, because what is required is that an
application has
to be delivered within a period of 30 days from the
date of the issuing of the notice.
[7]
In this case, the notice was issued on 26 July 2019 and the applicant
approached this
Court on 26 August 2019. I, therefore, conclude that
the matter is urgent. The point that was raised by the applicant is
why the
matter was heard on a Friday instead of Tuesday or Thursday
as per the practice manual.
[3]
The
matter was scheduled to be heard on a Wednesday, 04 September 2019,
but on 30 August 2019 a notice of removal from the roll
was delivered
by the applicant, the Registrar allocated the day of 11 September
2019. The point is that it is the Registrar of
this Court who
allocates dates, as correctly submitted by the applicant’s
representative, thus the applicant cannot be faulted.
[8]
I, therefore, conclude that this point
in limine
is dismissed.
Estoppel
and acquiesce
[9]
The respondent contended that the applicant is not allowed to pursue
this procedural
aspect as it has participated in the consultation
process, it did not raise that the policy was applicable and had been
breached.
Had it done so as far as back to 23 April 2019 this alleged
procedural defect would have been avoided.
[10]
Acquiescence simply means a party “abstains from taking action
while a violation of their
legal rights is in progress”. The
Supreme Court of Appeal, in
South
African Broadcasting Corporation v Coop and others
,
[4]
summarised estoppel defence thus:
“
The essentials
of estoppel can briefly be stated as follows: The person relying on
estoppel will have to show that he or she was
misled by the person
whom it is sought to hold liable as principal to believe that the
person who acted on the latter’s behalf
had authority to
conclude the act, that the belief was reasonable and that the
representee acted on that belief to his or her prejudice”
[11]
A party who is claiming estoppel has to both plead and prove it. The
estoppel doctrine is a principle
which is applicable in our Courts.
However, in applying this doctrine, one has to take into account
fairness thereof and whether
such principle conflicts with any
statute, specifically the LRA. Section 210 of the LRA provides that
provisions of this Act prevail
and if there is a law which is in
conflict with it unless if such law expressly amends the Act, the LRA
provisions have to be followed.
[12]
Section 189A(13) read with 189A(17)(a) of the LRA gives an employee
the right to approach this
Court when it is of the view that there is
a procedural defect in the retrenchment process taken by an employer.
What is expected
is that an employee has to participate in the
consultation, but that does not mean she/he condones the process that
is followed.
When the consultant party, an employee, detects that the
other party is not following a fair procedure they have a right to
“walk
out” and approach this Court. Therefore, raising
these defences will defeat the aforesaid provisions of the LRA
especially
the requirement of section 189 which is to engage in a
joint consensus seeking exercise, which the employee’s
participation
is important and that cannot be construed as waiving
rights. The circumstances of this matter do not justify the defence
raised
by the respondent.
[13]
Wherefore, all the points
in limine
are dismissed.
Salient
points
[14]
Before a meaningful joint consensus-seeking process could take place
in terms of section 189(2)
of the LRA, subsection (3) provides that
an employer must issue a written notice inviting the other party(a
union/an employee)
to consult with it and disclose in writing all the
relevant information, including:
“
(a)
the reasons for the proposed dismissals;
(b)
the alternatives that the employer considered before proposing the
dismissals, and
the reasons for rejecting each of those alternatives;
(c)
the number of employees likely to be affected and the job categories
in which they
are employed;
(d)
the proposed method for selecting which employees to dismiss;
(e)
the time when, or the period during which, the dismissals are likely
to take effect;
(f)
the severance pay proposed;
(g)
any assistance that the employer proposes to offer to the employees
likely to be dismissed;
(h)
the possibility of the future re-employment of the employees who are
dismissed;
(i)
the number of employees employed by the employer; and
(j)
the number of employees that the employer has dismissed for reasons
based on its operational
requirements in the preceding 12 months”.
[15]
A checklist compliance with this provision is not necessary, as the
Labour Appeal Court in
Johnson
& Johnson (Pty) Ltd v CWIU
[5]
held thus,
“…
a mechanical, 'checklist'
kind of approach to determine whether section 189 has been complied
with is inappropriate. The proper
approach is to ascertain whether
the purpose of the section (the occurrence of a joint
consensus-seeking process) has been achieved
(cf Maharaj and others v
Rampersad
1964 (4) SA 638
(A) at 464; Ceramic Industries Ltd t/a
Betta Sanitaryware (supra) at 701G–702H (BLLR); 676B–677C
(ILJ); Ex parte Mothuloe
(Law Society Transvaal intervening)10
1996 (4) SA 1131
(T) at 1137H–1138D).
If that purpose is
achieved, there has been proper compliance with the section. If not,
the reason for not achieving the purpose
must be sought
.”
[16]
The respondent has a policy in place which among other things mirrors
the provisions of section
189(3), which furthermore states that
"The
company shall accordingly notify the appropriate consultant parties
of the aforementioned in
its written notice as contemplated
in the written notice
below”.
This policy
requires the respondent to issue a notice as stipulated by the LRA.
[17]
The applicant contended that the policy applies herein, whereas the
respondent suggested otherwise.
The respondent confirmed that the
policy is available on the intranet, and requires among other things
the appointment of a facilitator,
however, contends that the union
and the respondent have not applied the policy in the past
restructuring exercise.
[18]
The respondent admits that it did not comply with its policy, and
says the information that was
exchanged with the applicant amounted
to a notice. During argument they correctly conceded that no notice
in terms of section 189A
(3) of the LRA was issued, however, they
contend that they did give a document, titled executive summary, to
the union providing
reasons for the possible retrenchment, specifying
the alternatives, number of employees who might be affected but
conceded that
the period is not specified in that document and no
proposal of severance pay is stated. They contend further that there
were discussions
which lasted for approximately four months.
[19]
It is prudent at this stage to determine as to whether the policy
applied to the employee or
not. The evidence before this Court
indicates that the policy did apply to the employee because he is
employed by the respondent,
who made no averment as to why it should
not apply to him, save to state that they “
substantially
complied with the provisions of the retrenchment policy
”.
Further, even if the policy was not applicable, which I do not
accept, the respondent in terms of section 189(3) should
have
provided the union with the notice inviting the employee to
consultation and/or the union on behalf of the employee. I have
taken
into account averments in the affidavits and am not convinced that
substantial compliance has been met especially considering
that the
LRA provides that there must be a notice and state as to what is to
be dealt with in that notice. These are the primary
requirements, as
the section further states “including”. Taking into
account the concessions made by the respondent,
I do not agree that
the respondent has presented an exception as per
Johnson supra
.
[20]
The respondent does not make convincing averments about the quality
of the meetings that were
held between the parties. The onus is on
the employer to show that it substantially complied with the
provisions of the LRA.
[21]
The respondent avers that the process of engagement that it has
undertaken, has been the process
used since 2013. The applicant, in
the replying affidavit, submits that in the past section 189(3)
notices have been issued. In
support of this averment refers to
notices issued on 6 May 2019 and on 24 July 2019 respectively. And
there are confirmatory affidavits
to this effect. Therefore, the
alleged practice of engagement cannot be accepted as correct. In the
circumstances, I, therefore,
find that the respondent has been
issuing notices in line with the provisions of section 189(3) of the
LRA and it should do the
same in respect of the current matter.
[22]
I have considered the prayers in the notice of motion, and I conclude
that the following order
will be appropriate.
[23]
In the premises the following order is made:
Order
1.
The requirements of rule 8 of the rules of this Court are hereby
dispensed with, and the application is treated as urgent;
2.
The respondent acted in a procedurally unfair manner when it
proceeded to issue Mr Modibane with the letter dated 26 July 2019,
without issuing a written notice in terms of section 189 (3)
of the
LRA, inviting the applicant to consult on the information recorded
therein;
3.
The respondent acted in a procedurally unfair manner when it
proceeded to issue Mr Modibane with the letter dated 26 July 2019,
without issuing a written notice prescribed in the Nedbank
Retrenchment Policy;
4.
The respondent acted in a procedurally unfair manner by failing
to
appoint a facilitator as prescribed by the Nedbank Retrenchment
policy;
5.
The respondent must comply with the prescribed 60 days period,
as
recorded in the Nedbank Retrenchment Policy; and more particularly,
that the 60 day period shall commence on the issue of a
section 189
(3) notice to the applicant/ Mr Modibane; alternatively that the
Respondent comply with 60 day period as prescribed
by section 189A of
the LRA;
6.
The respondent is ordered to initiate and then continue with a
meaningful joint consensus
seeking process as envisaged by
sections 189 and 189A of the LRA;
5.
There is no order as to costs.
_______________________
S.
Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicants: Adv. C Goosen
Instructed
by : BJ Erasmus
Pieterse Attorneys
For
the Respondents: Adv. H. C. Nieuwoudt
Instructed
by :
Norton Rose Fullbright
[1]
No. 66 of 1995, as amended.
[2]
(2019) 40 ILJ 1731 (CC).
[3]
See: Clause 12.3 of the Practice Manual.
[4]
[2006] 1 All
SA
333
(SCA) at para 64.
[5]
[1998] 12 BLLR 1209
(LAC) at para 29.