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 293
|
|
National Education Health and Allied Workers Union and Others v Northwest University: Mafikeng Campus (JS356/2011) [2019] ZALCJHB 293 (29 October 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JS356/2011
In
the matter between:
NATIONAL
EDUCATION HEALTH
AND
ALLIED WORKERS UNION Applicant
INDIVIDUALS
LISTED IN ANNEXURE ‘A’
HERETO
Second to Further Applicants
and
NORTHWEST
UNIVERSITY: MAFIKENG CAMPUS
Respondent
Heard:
30
August 2019 and 20 September 2019
Submissions: 1
October 2019
Delivered:
29 October
2019
Summary:
Dismissal for operational requirements – employer has no
obligation
to consult with individual employees when it has consulted
with their trade union – the employer has a statutory
obligation
to consider alternatives in order to avoid retrenchment –
filling a vacant post with an affected employee is one of the
measures
to avoid retrenchment.
JUDGMENT
NKUTHA-NKONTWANA.
J
Introduction
[1]
The genesis of this litigation is the decision by the respondent,
North
West University: Mafikeng Campus (University) to restructure
its Maintenance Department in 2009. There were protracted
consultations
between the University and the University of North West
Staff Association (UNWSA) on behalf of its members that were
concluded
in November 2010 and followed by the retrenchment of the
second to further applicants (applicant employees) who were 13 in
total.
Unfortunately, nine years down the line there is no finality
on the matter due to delays, mostly at the instance of the
applicants.
[2]
These proceedings were initiated by the UNWSA. On 12 February 2012,
it
was deregistered as a trade union and substituted by the first
applicant, National Education Health and Allied Workers Union
(NEHAWU)
as per the order of Shai AJ dated 30 April 2014.
Nonetheless, it is common cause that throughout the consultation
meetings, the
applicant employees were represented by UNWSA. 12 of
the applicant employees have since withdrawn from the litigation and
Mr Naransamy
Naidoo (Mr Naidoo) is the only one remaining.
[3]
In the
light of the turn of events, the parties held a further pre-trial
hearing meeting and filed a supplementary minute on 29
August 2019,
dealing specifically with Mr Naidoo. I deal with its contents later
in the judgment. Suffice to mention at this stage,
though, that the
essence of Mr Naidoo’s impugn is that his retrenchment was
procedurally and substantively unfair because
it was not effected in
accordance with section 189 of the Labour Relations Act
[1]
(LRA). The University is defending its decision to retrench Mr
Naidoo.
[4]
These proceedings sat over a period of two days, 30 August 2019 and
20
September 2019. The parties were directed to file written
submissions and they were received by the Court on 1 October 2019.
Issues
for determination
[5]
The issues in dispute in relation to the substantive fairness of Mr
Naidoo’s
dismissal are summarised in the supplementary
pre-trial minute as follows:
5.1 Whether
Mr Naidoo could have been accommodated in an alternative maintenance
or other positions at the University;
5.2
Whether the University had upskilled Mr Naidoo before;
5.3
Whether Mr Naidoo could have been a service provider to the
University; and
5.4 To
what extent Mr Naidoo could have been accommodated within the
Strategic Plan.
[6] When
it comes to procedure, the following was placed in dispute:
6.1
Whether the selection criteria of last in first out (LIFO) and skills
retention was adhered to completely;
6.2
Whether the notice commencing the consultation complies with section
189(3) of the LRA;
6.3
Whether the University did provide the information that was requested
by UNWSA during the consultation meetings
(particularly, the costs of
utilising the services of the contractors and the viability of those
services, reports on the skills
audit, job analysis and psychometric
tests).
Pertinent
facts
[7]
The University commenced the consultation process by issuing a
section
189(3) notice which was duly served on UNWSA on 22 October
2009. The rationale for the contemplated restructuring was to
optimise
the service offering by the Maintenance Department as per
the University’s strategic plan. Attached to the section 189(3)
notice was the names of the applicant employees.
[8]
It is common cause that there were about 12 consultation meetings
between
26 October 2009 and 22 November 2010. After the meeting of 9
December 2009, the consultation process was halted only to resume on
6 August 2010. The minutes of all the consultation meetings are not
disputed. According to Mr Robert Kettles (Mr Kettles), who
was the
Campus Registrar at that time and participated in all the
consultation meetings, the consultation meetings dealt with all
the
applicant employees in general terms. UNWSA never addressed the
individual applicant employees’ specific circumstances.
Also,
the employees that had already been placed in terms of the proposed
organogram were the members of UNWSA. As, such their
placement was
never challenged.
[9]
However, on 20 November 2009, Mr Kettles addressed a letter to the
President
of UNWSA, Mr M Ndandani (Mr Ndandani) with the skills audit
report, the strategic plan and the proposed organogram attached
thereto.
Amongst the proposals made by the University was an
invitation to the applicant employees to apply for the positions that
were
vacant in the proposed organogram. According to Mr Kettles, that
proposal was rejected by the staff association even without extending
it to their members during their feedback sessions.
[10]
Mr Naidoo conceded that the Staff Association did hold feedback
sessions with the affected
employees, however he was never made aware
that his position was affected and that there were vacant positions
which he could have
applied for. In fact, Mr Naidoo’s main
qualm was that the University ought to have consulted him directly
despite his concession
that he was a member of UNWSA in good standing
and had mandated it to represent him during the consultation
process.
[11]
Mr Petrus Joubert (Mr Joubert), who was the Manager for Projects at
that time, testified
that he was the author of the strategic plan and
the proposed organogram. He also conducted the skills audit that was
subsequently
used to place the employees in the proposed organogram.
He populated the proposed organogram with the names of the employees
that
were already the incumbents in those positions as a mere
proposal for the purpose of consultation with UNWSA but nothing was
conclusive
at that stage. However, he conceded that the proposed
organogram was ultimately implemented as is.
[12]
Mr Naidoo was employed as a Machine Carpenter and was qualified in
furniture manufacturing,
a fact he confirmed during his skills audit
interview. Even though he testified that he was the most experienced
Carpenter and
had been utilised as a Maintenance Carpenter, he
conceded that he was employed as a Machine Carpenter. Mr Naidoo was
adamant that
the University knew his skills as Mr Joubert used to
instruct him to do maintenance tasks. However, this version was not
put to
Mr Joubert.
[13]
The essence of Mr Naidoo’s evidence was that he ought to have
been accommodated in
the position of Maintenance Carpenter as he was
more experienced than Messrs Manda and Mosia who were both employed
as Maintenance
Carpenters. Alternatively, he should have been offered
a junior position of Assistant Carpenter and bumped the incumbents in
those
positions as he was more experienced and with longer service of
employment.
[14]
Conversely, Mr Kettles testified that the focus in terms of the
positions in the proposed
organogram was that of supervisory and
project co-ordination skills and not the technical skills
per se
.
However, UNWSA was invited to come up with proposals on the proposed
organogram and placement of staff but failed to do so. There
were no
suggestions put forward by UNWSA in relation to Mr Naidoo
specifically as to whether he was interested in any of the Carpenter
positions or junior positions or whether he ought to have been placed
in an alternative position instead of his colleagues. He
also
explained that it would not have been possible for the University to
deal directly with Mr Naidoo as the UNWSA had objected
to such an
action previously.
[15]
On the issue of re-skilling, Mr Kettles testified that the University
did contact the Skills
Development Officer to request for the
re-skilling of the applicant employees, including Mr Naidoo, in terms
of the layoff scheme
fund of the ETDP SETA. However, the request was
unsuccessful. Mr Naidoo as well as all the retrenched employees were
paid an
ex gratia
skills allowance of R2000.00, respectively.
Mr Naidoo conceded that he never requested to be upskilled before the
restructuring
process but had requested the upskilling on behalf of
the general workers.
[16]
On the issue of procedure, the section 189(3) notice clearly
stipulated that the purpose
of the consultation would be to deal with
the impending restructuring of the maintenance department and
contemplated retrenchment
of the applicant employees. Mr Kettles
conceded that he made a typographical error when he referred to
‘transfer’ as
opposed to ‘retrenchment’.
[17]
Mr Kettles testified that the University did provide a response to
UNWSA’s request
for information. In essence, the University was
of the view that the requested information was irrelevant: firstly,
there was no
need to deal with all service providers contracted by
the University given the fact that the scope of the restructuring was
limited
to the Maintenance Department; secondly, the restructuring
was never about saving costs, but efficient and optimal rendering of
services with a focus on supervision and co-ordination; and lastly,
UNWSA had already been favoured with the copies of the skills
audit
report and the job profiles that were utilised as the basis for
consultation on the proposed organogram.
[18]
It is not clear as why the information had been requested. However,
Mr Naidoo did not even
attempt to traverse this issue in his
evidence. His evidence was simply that he has a skill that could have
been useful in the
new Maintenance Department structure hence he
ought to have been accommodated.
Legal
principles and application
[19]
The
crisp issue for determination is whether the dismissal of Mr Naidoo
could have been avoided or, put differently, was operationally
justifiable. In
SA
Clothing and Textile Workers Union and Others v Discreto - A Division
of Trump and Springbok Holdings,
[2]
referred
to by TSSA, the Labour Appeal Court (LAC) held as follows:
‘
For
the employee fairness is found in the requirement of consultation
prior to a final decision on retrenchment. This requirement
is
essentially a formal or procedural one, but, as is the case in most
requirements of this nature, it has a substantive purpose.
That
purpose is to ensure that the ultimate decision on retrenchment is
properly and genuinely justifiable by operational requirements
or,
put another way, by a commercial or business rationale. The function
of a court in scrutinising the consultation process is
not to
second-guess the commercial or business efficacy of the employer’s
ultimate decision (an issue on which it is, generally,
not qualified
to pronounce upon), but to pass judgment on whether the ultimate
decision arrived at was genuine and not merely a
sham (the kind of
issue which courts are called upon to do in different settings, every
day). The manner in which the court adjudges
the latter issue is to
enquire whether the legal requirements for a proper consultation
process has been followed and, if so, whether
the ultimate decision
arrived at by the employer is operationally and commercially
justifiable on rational grounds, having regard
to what emerged from
the consultation process
.’
(Emphasis added)
[20]
Mr Naidoo did not dispute the University’s decision to
restructure the Maintenance
Department. However, his impugn is that
the changes in terms of the new structure did not render him
redundant as he had the requisite
skills and the job experience in
his favour.
[21]
Mr Kettles testified that Mr Naidoo was employed as a Machine
Carpenter and was skilled
in furniture manufacturing, a skill that
was not needed in terms of the new structure. The skills audit did
not reveal any additional
skills, especially in project coordination,
hence he was retrenched. This evidence was corroborated by Mr
Joubert. However, both
conceded that the employees that were retained
were never assessed in terms of their capabilities or experience. The
only reason
they were retained is because they were the incumbents in
those positions. When challenged about Messrs Manda and Mosia who
were
both Carpenters, Mr Kettles was adamant that they were retained
because they were also skilled co-ordinators. This is, however,
not
true when it comes to Mr Mosia, as he had no other skills other than
an allegation that he was a qualified Carpenter without
proof of his
qualification. Still, he was never asked to apply for the Maintenance
Carpenter position in the new structure.
[22]
Mr Naidoo is a qualified Machine Carpenter who had been in the
Maintenance Department longer
than everyone as he had
18
years’ experience.
His capacity and experience were
never challenged. The only issue that emerged from his cross
examination was that a carpenter can
do all carpentry tasks and as a
Machine Carpenter he could also manufacture furniture.
Mr
Kettles, himself,
conceded
that Mr Naidoo
would have been able to repair and maintain all the wooden work and
structures at the University by virtue of his
qualification.
[23]
It is also apparent from the minutes of the consultation meetings
that the legitimacy of
the skills audit conducted by Mr Joubert was
disputed. The UNWSA persistently requested the names of that the
seven skilled employees that would have been lost
had LIFO been applied, but to no avail. In the end, this
issue
was never resolved.
[24]
I, accordingly, accept Mr Naidoo’s evidence that, as a
Carpenter, he could perform
all the maintenance tasks; and he was
senior and most experienced than Messrs Manda and Mosia. Clearly the
University was confronted
with a situation where it had three
Carpenters when, in terms of the new structure, it needed only two.
In my view, the University
ought to have, at least, assessed their
suitability in terms of a competitive placement. Failure to do so
resulted in an irrational
decision to displace Mr Naidoo.
[25]
Even if the decision to retrench Mr Naidoo was commercially rational,
it was incumbent
upon the University to show that it had considered
all the alternatives to retrenchment. Mr Kettles testified that the
University
did consider alternatives to retrenchment and all were not
viable. However, he had advised UNWSA to consider the vacant
positions
in the proposed organogram and apply on behalf of the
applicant employees, that offer that was not taken up.
[26]
Equally, Mr kettles was adamant that Mr Naidoo did not qualify for
any of the vacant positions
(particularly, the two Maintenance
Buildings Co-ordinator positions, numbered 6 and 7 in the organogram,
and Assistant Maintenance
Co-ordinator position, numbered 13 in the
organogram) because he had no skills in control and project
co-ordination. It may be
true that Mr Naidoo could not have qualified
for the Maintenance Buildings Co-ordinator positions as they were
pitched at a management
level. However, the Assistant Maintenance
Co-ordinator is merely a semi-skilled position with no requirement
for academic qualifications.
The incumbent would have been
responsible for supervision of building maintenance work and carrying
out building inspections. Mr
Naidoo was not only suitable, but over
qualified for this position. Any perceivable gaps, if at all, could
have been dealt with
through additional training. Mr Naidoo testified
that he was prepared to take a salary cut in order to secure his
employment. The
fact that he did not apply for this position did not
absolve the University from offering it to Mr Naidoo as an
alternative to
retrenchment, especially since his fellow Carpenters
were placed in the new structure without applying for their
positions.
[27]
Section
189(2)(a)(i) and (ii) enjoins the employer to consult on
measures to avoid or minimise retrenchments. Whilst in
terms of
section 189(3)(a) and (b) the employer must disclose the reasons for
the proposed retrenchments and the alternatives that
it had
considered before proposing the dismissals, and the reasons for
rejecting each of those alternatives. Pertinently, in
Oosthuizen
v Telkom SA Ltd,
[3]
the
Labour appeal Court (LAC), per Zondo JP as he then was, stated that:
‘
[8]
In my view, an
employer has an obligation not to dismiss an
employee for operational requirements if that employer has work which
such employee
can perform either without any additional training or
with minimal training
.
This is because that is a measure that
can be employed to avoid the dismissal and the employer has an
obligation to take appropriate
measures to avoid an employee’s
dismissal for operational requirements
. Such obligation
particularly applies to a situation where the employer relies on the
employee’s redundancy as the operational
requirement. It is in
accordance with this obligation of the employer that in the General
Foods case, supra, referred to above,
this Court found the dismissal
of the employees unfair. In that case, while the employer was
retrenching some employees, it was
busy recruiting new employees for
work which the employees being retrenched could perform. As already
stated, this Court found
the dismissal substantively unfair for this
reason. In such a case, the dismissal is a dismissal that could have
been avoided.
A dismissal that could have been avoided but was not
avoided is a dismissal that is without a fair reason
.’
(Emphasis added)
[28]
In this
instance, the University failed to consider the vacant position of
Assistant Maintenance Co-ordinator as an alternative
to the
retrenchment of Mr Naidoo. No plausible explanation has been offered
for this failure, despite the University’s statutory
obligation
to consider all possible alternatives in order to avoid the
retrenchment of Mr Naidoo.
[4]
[29]
Turning to
the issue of procedural fairness, Mr Naidoo conceded that he was
represented by the UNWSA during the consultation process.
Accordingly, the University had no obligation to consult with him
separately and directly. In this regard, in
Baloyi v M & P Manufacturing,
[5]
referred to by the University, the LAC stated that:
‘
[23]
In keeping with a premise of the Act, section 189(1) envisages that
the collectivities of management
and labour represented by trade
unions should engage in an appropriate process of consultation, save
where the affected employees
are not so represented.
To interpret
the section so as to allow an employee represented by a union to
engage in a parallel process of consultation would
undermine the very
purpose of the section
.’ (Emphasis added)
[30]
Also, in my view, nothing turns on the word ‘transfer’ in
the section 189(3)
notice as its contents clearly refer to the
operational requirements as the reason for the restructuring and
retrenchments. It
is also clear from the minutes of the consultation
meetings that the subject matter for discussion was the restructuring
due to
operational requirements and not transfer of employees.
[31]
Given the dispositive nature of the findings I have arrived at above,
there is no need
to deal with the rest of the other issues.
Conclusion
[32]
In all the circumstances, I am satisfied that the retrenchment of Mr
Naidoo was procedurally
fair but substantively unfair.
Remedy
[33]
Mr Naidoo seeks reinstatement with full back pay; alternatively,
compensation. Even though
reinstatement is a primary remedy in terms
of the LRA, in the present case, there are compelling reasons
tendered by the University
to debar Mr Naidoo of the primary remedy.
As mentioned above, the retrenchment occurred in 2010 and the delay
in finalising this
matter is about nine years. The delay is mostly
attributed to the applicants. As a result, Mr Naidoo is just about a
year from
reaching the official retirement age.
[34]
In the light of circumstances of this case, I deem it just and
equitable to order compensation
equivalent to 12 months’ salary
(R29 000.00 x 12 = 348 000.00).
Costs
[35]
The only issue lingering is that of costs. Since both parties are
partially successful,
it accords with canons of law and fairness that
each party pays its own costs.
[36]
In the circumstances, I make the following order:
Order
1.The dismissal of the
applicant employee, Mr Naidoo, is procedurally fair but substantively
unfair.
2. Mr Naidoo is awarded
compensation of R 348 000.00 which is equivalent to 12 months’
remuneration.
3. There is no order as
to costs.
___________________
P
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances
For
the applicant: Advocate M Sekhethela
Instructed
by: Thaanyane
Attorneys
For
the respondent: Ms M Chenia from Cliffe Dekker
Hofmeyr Inc.
[1]
Act 66 of 1995 as amended.
[2]
See:
SACTWU
and Others v Discreto (A Division of Trump and Springbok Holdings)
[1998] 12 BLLR 1228
(LAC) at para 8; see also
BMD
Knitting Mills (Pty) Ltd v SACTWU
[2001]
7 BLLR 705
(LAC) at para 19;
CWIU
and Others v Algrorax (Pty) Ltd
[2003] 11 BLLR 1081
(LAC) at paras 69 – 70
.
[3]
[2007] 11 BLLR 1013 (LAC) at para 8.
[4]
See:
South
African Commercial, Catering and Allied Workers Union and Others v
Woolworths (Pty) Limited
(2019) 40 ILJ 87 (CC);
2019 (3) BCLR 412
(CC);
[2019] 4 BLLR 323
(CC) at paras 34 -38.
[5]
[2001] 4 BLLR 389 (LAC) at para 23. See also
Oosthuizen
above
n 3 at para 25-32.