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[2019] ZALCJHB 341
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Lepota v Lonmin Platinum Mine (JS920/16) [2019] ZALCJHB 341 (3 December 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JS 920/16
In the matter between:
JOHANNES LEBOHANG
LEPOTA
Applicant
and
LONMIN PLATINUM
MINE
Respondent
Delivered:
3 December 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
In his statement of claim, the applicant (Mr Lepota) alleges that his
retrenchment by the respondent (Lonmin)
on
2 March 2016
was substantively unfair. Lepota seeks
an order of reinstatement and/or just and equitable compensation.
Prior to his retrenchment,
and during the consultation processes,
Lepota was a member of the Association for Mine
workers
and Construction Union (AMCU). He however instituted these
proceedings on his own.
[2]
Lonmin opposed Lepota’s claim on the basis that there was a
commercial
rationale for the retrenchment. It further contends that
Lepota was offered alternatives short of dismissal which he had
initially
accepted. Lepota however according to Lonmin, failed to
take up the alternative position at a different mining shaft, thus
forcing
Lonmin to retrench him.
Background
:
[3]
The brief background to this dispute is as follows.
3.1
Lepota was employed by Lonmin with effect from 12 April 2011
in the
position of Mechanised Operator Bolter at Lonmin’s Hossy
Shaft. Lonmin is a mining company with operations in Rustenburg in
North West Province.
3.2
In July 2015, Lonmin held a meeting with all
the Mechanised Operators at Hossy Shaft and informed them that it
would abandon
the mechanisation operation system and implement a
conventional operating system.
3.3
During further consultations in August 2015 Lonmin advised the
Mechanised
Operators that there were available positions at other
mining shafts. An agreement was reached between Lonmin, AMCU and
other consulting
parties to establish a task team comprising of
organised labour and Lonmin, which would endeavour to reach an
agreement on the
redeployment and re-skilling of affected employees.
The task team was further mandated to oversee the redeployment
exercise.
3.4
A further agreement was reached with AMCU, which had at all material
times represented
its members (including Lepota) in the consultation
process, on the reduction of the employees’ remuneration by at
least 50%
upon them being redeployed.
3.5
Most of the Mechanised Operators refused to accept redeployment to
lower positions
with reduced salary, re-skilling and the Voluntary
Severance Packages (VPSs). On 9 October 2015, AMCU was
informed that
the positions of Mechanised Operators had become
redundant. In the light of its members’ resistance to the
proposals in regard
to alternatives, AMCU on 16 October 2015
sought a further opportunity to consult and advise them of their
options.
3.6
On 26 October 2015, Lonmin addressed correspondence to
Lepota offering
him a position of operator loco at Roland Shaft.
Lepota underwent a medical examination and was declared fit to resume
duties.
He also accepted the offer by attaching his signature to the
offer on 30 October 2015.
3.7
Once the medical certificate was issued, Lepota was supposed to
report for duty
at Roland shaft. Despite the acceptance of the
position, he did not report for duty at the shaft he had elected.
3.8
On 11 November 2015, Lonmin addressed a letter to Lepota
inviting
him to make an election between re-skilling and
redeployment, or to opt for a VSP. Deadlines were set within which
these options
remained available, failing which compulsory
retrenchment would take effect.
3.9
Further consultations were held with AMCU on 4 and 23 November 2015,
since a majority of the Mechanised Operators had still refused to
make any election.
Lepota’s clock card was
blocked on 17 December 2015.
3.10
On 22 February 2016, a letter was written to Lepota in
which he was advised that he
was being given a final opportunity to
make an election. He was further advised that the final opportunity
would expire at 13h00
on 24 February 2016. He was advised that should
he fail to make an election, Lonmin would be left with no option but
to retrench
him.
3.11
On 26 February 2016, a further meeting was held with the Mechanised
Operators and they were again
reminded to make an election. On
29 February 2016, and following further consultations with
AMCU, a list of the Mechanised
Operators affected was agreed upon,
leading to the conclusion of a retrenchment agreement between AMCU
and Lonmin.
3.12
In a letter
dated 1 March 2016, Lonmin terminated the employment
services of Lepota on account of its operational requirements,
and
further since he had failed to apply for the VSP and/or accept
redeployment
[1]
.
The
evidence:
[4]
Lonmin led the evidence of Mr Mpho Rathulwane (Rathulwane), its
Senior
Consultant: Human Capital, responsible for four mine shafts,
namely Hossy, East One, West One and Newman Shafts. His evidence
focused
on the consultation meetings held with AMCU in respect of the
retrenchment process and the redeployment of employees, and the
attempts
to redeploy Lepota. Rathulwana confirmed most of the common
cause facts as summarised above, and specifically added that:
4.1.
Upon the employees making an election to be placed into a suitable
shaft, they would then
be required to undergo medical assessments.
The employees would generally be referred to the medical assessment
by the Human Resource
Administrator, Ramakgoka.
4.2.
Upon the completion of the relevant medical assessments, employees
would be expected to
report with the medical assessment report to the
preferred shaft. The Human Resource Office would then provide the
employees with
an offer of employment. Rathulwane would then receive
a report on the employees who have accepted the offer of employment.
4.3.
In the last consultation meeting held in February 2016 which was
attended by
inter alia
AMCU officials and members of the task
team, the affected employees present in the
meeting
were upset with AMCU officials, whom they had chased out of the
meeting. The employees’ position in the end was that
they would
rather be retrenched.
4.4.
Lepota underwent a medical assessment and was declared fit to perform
the duties of a loco
operator at Roland shaft. Upon being issued with
the medical assessment certificate, Lepota ought to have reported at
Roland shaft
for the purposes of being offered a position. He however
failed to do so.
4.5.
On 29 February 2016, a list of employees stationed
at Hossy shaft that were to be retrenched was formulated and agreed
upon by Rathulwane on behalf of the respondent, and AMCU as part of
the task team. Lepota’s name was on the list. In the
end,
87
employees were
forcefully
retrenched
in view of the fact that they had turned down all
options presented to them.
[5]
Under cross-examination, Rathulwana further testified that:
5.1.
The consultation meetings were not held with individual employees as
they were represented
by AMCU. He denied having consulted
individually with Lepota.
5.2.
He reiterated that at no stage had Lepota reported to his chosen
shaft between October 2015
and November 2015. Although the
affected employees were not required to perform underground duties,
they were required to
report for duty on the surface and the
attendance report would therefore have reflected Lepota’s
attendance during that period.
The clock records however showed that
Lepota clocked from 3 December 2015.
5.3.
Ordinarily if an employee did not report for duty (AWOL), they would
be paraded (instructed
through the internal communication system to
report to the relevant authority or site). However, during the
consultation exercise,
the affected employees were not paraded unless
they were specifically required to be at the work site for whatever
reason.
5.4.
In regards to the fact that Lepota had initially accepted the
alternative position at Roland
shaft but had allegedly subsequently
requested to be transferred to Saffy shaft instead,
Rathulwane
maintained that Lepota had the responsibility to approach his
preferred shaft with a medical assessments report, so that
he could
be offered a suitable position in that particular shaft. He did not
however report at Saffy shaft.
5.5.
Rathulawane further denied that he had instructed
Lepota to await a decision on his transfer to Saffy shaft. He
maintained that
Lepota was served with the final opportunity letter
dated 22 February 2016 which sought to persuade him to make
an election.
[6]
Ms Sarah Tshepiso Segabetla (Segabetla) the Human
Resources Officer: Human Capital at Roland shaft, testified that:
6.1.
She had personally handed over a copy of the
written offer of redeployment to Roland shaft to Lepota as per the
letter dated 26 October 2015
and the latter had
communicated his acceptance. Lepota had further indicated that he
required time to think over the matter.
6.2.
When Lepota failed to return, he was paraded
and upon his arrival he indicated his intention to be deployed to
Saffy shaft. His
position was thereafter offered to another affected
employee when he did not report for duty at that shaft.
[7]
Lepota’s evidence is summarised as follows:
7.1.
Having accepted the position of loco operator at
Roland, he had then communicated the results of his medical
assessment to Rathulwane
like all the other affected employees.
7.2.
At some point after having accepted the position
at Roland, he was informed of additional available positions at the
Saffy shaft.
He however had to first approach the Human Resource
Assistant at that shaft, Ms Kgontse Masiza (Masiza) with a request to
be redeployed
.
7.3.
He subsequently communicated his intentions to be
redeployed to Saffy shaft in view of the fact that it was close to
his place of
residence. He contended that he always had the intention
to assume his duties at Saffy shaft utilising the same offer he had
accepted
in respect of Roland shaft.
7.4.
On 23 November 2015 he had approached
Masiza with the request to be redeployed to Saffy shaft. There was
communication
between Masiza and Rathulwane in respect of him being
redeployed to the Saffy shaft.
7.5.
At some point,
Rathulwane
had confirmed with Masiza that indeed he ought to be transferred to
the Saffy shaft. Masiza thereafter provided him with
documentation
for the purposes of a medical assessment.
His understanding of
the procedure for deployment was that once he had
obtained a medical assessment certificate, Rathulwane ought to have
authorised
the transfer or redeployment to the Saffy shaft. He
insisted that he ought to have been paraded after he had made his
election
to be redeployed to Saffy shaft, but that this did not
happen.
7.6.
He conceded that he attended a consultation
meeting wherein Rathulwane had reminded those affected employees who
had not made an
election to do so. He however did not immediately
respond to that call on basis that in his view, he had made an
election to be
redeployed to the Saffy shaft but was not paraded
despite waiting.
7.7.
Upon being notified of the termination of his
employment, he approached Rathulwane in order to inquire under what
circumstances
he was retrenched in view of him having made an
election to be redeployed to Saffy shaft.
[8]
Under cross-examination, Lepota testified that:
8.1.
AMCU had not acted in accordance with his
instructions during consultations.
When he
received that letter dated 22 February 2016, which implored
him to make an election, he approached Rathulwane
who in turn
informed him that he should not be concerned as he had made a
selection in 2015.
8.2.
He maintained that some of the affected employees
were paraded and others like himself were not paraded.
He
further contended that Rathulwane at some point became impatient with
the affected employees.
[9]
Mr Sekgonyana Mokoena (Mokoena), an erstwhile
employee of Lonmin testified on behalf of Lepota.
9.1
He was employed at Hossy shaft as an LHD operator
and was one of the affected employees.
9.2
His testimony mainly related to what Lepota had
told him. He also had heard about available positions at Saffy shaft.
9.3
Central to his testimony was that once an employee
had selected a shaft, he was supposed to have been paraded if he did
not report
for duty and be warned rather than being dismissed.
9.4
Mokoena conceded under cross examination that Lepota had accepted the
offer
at Roland shaft and was paraded. He however contended that
Lepota subsequently got to know of other positions at Saffy. In the
same vein, he conceded that he did not know of this offer made to
Lepota, other than through what the latter told him.
The
issues for determination and evaluation:
[10]
It was not disputed that there was a general need to retrench, and
that Lepota’s
position had become redundant. The crisp issue
for determination in this case given the common cause facts is
whether Lonmin had
a fair reason to terminate the services of Lepota,
in circumstances where it held the view that he had despite accepting
an alternative
position at Roland, failed to render his services at
that shaft as expected. Aligned to that enquiry was whether the
termination
of Lepota’s services was fair, in circumstances
where he was of the view that that he was subsequently offered
another position
at Saffy Shaft, and was waiting to be paraded before
he could report for duty at that site.
[11]
The
starting point in determining the factual disputes in this case is
that it is trite that prior to ultimately deciding on a retrenchment,
there is an
obligation
on the employer to make every available effort to avoid the dismissal
of an employee for operational requirements. This
entails that an
employer may not dismiss an employee for operational requirements
when such employer has a vacant position the
duties of which the
employee concerned can perform with or without at least minimal
training.
[2]
If an employer offers such vacancies as an alternative to
retrenchment,
whether
in the same position but on different terms or on the same terms but
in a different position or in the same position and
on the same terms
but in a different place, that is still alternative employment. An
employee who however unreasonably refuses
such an offer of
alternative employment is not without fault and cannot claim
unfairness when ultimately retrenched.
[3]
[12]
In this case, there can be no doubt that Lonmin
took every available effort to ensure that a retrenchment was a
measure of the last
resort. The common cause facts indicate that
protracted consultations took place with AMCU and through the task
team, to afford
the affected employees with available options, which
included redeployment to other shafts, re-skilling and when all else
failed,
VPSs. Undisputed evidence further indicated that as late as
February 2016, the affected employees, including Lepota, were
given ultimatums within which to accept any of the offers failing
which forced retrenchment would follow.
[13]
Aligned to the above, is that it is apparent from
the undisputed facts, that the affected employees, and in particular,
the Mechanised
Operators of which Lepota formed part, were resistant
to any of the alternatives. AMCU for its part had also faced
resistance from
its own members, and this was confirmed by Lepota’s
evidence to the effect that in his view, AMCU was not acting in
accordance
with the affected employees’ mandate. This to a
large extent confirmed Rathulwane’s evidence that the employees
had
chased AMCU officials out of the consultation meetings.
[14]
The Mechanised Operator’s mandate however,
which appears to have been that the affected employees sought to
remain in their
positions as they were without any changes, was
unsustainable, particularly in the light of it not being in dispute
that there
was an economic rationale for the retrenchments. The
argument advanced therefore on behalf of Lepota that there was no
evidence
to suggest that he had aligned himself with the other
Mechanised Operators’ approach and resistance to the
alternatives,
is belied by his very own conduct as shall further be
demonstrated below.
[15]
Arising from Lepota having made an election and
further having accepted a redeployment to Roland Shaft, it was common
cause that
after having gone through the process of medical
assessment, and all other procedural requirements, he had failed to
report to
that shaft
from 30 October 2015 after
having accepted the offer. Notwithstanding the failure to report at
Roland Shaft, Lonmin had
again on 11 November 2015,
addressed a letter to Lepota inviting him to make an election between
re-skilling and redeployment,
or to opt for a VSP. The deadlines set
within which these options remained available, failing which
compulsory retrenchment would
take effect were ignored. This was
further despite the fact that Lepota’s
clock
card was blocked on 17 December 2015.
[16]
Lepota further ignored a letter addressed to him on 22 February 2016,
in which
he was advised that he was being given a final opportunity
to make an election by 24 February 2016, and he had again
failed to make an election.
[17]
To the extent that all of these endeavours were made to accommodate
Lepota, I fail to appreciate
the reason it can be said that Lonmin
acted unfairly, especially in circumstances where it and Lonmin had
reached an agreement
on 29 February 2016, on the list of
Mechanised Operators to be forcibly retrenched.
[18]
Lepota’s contentions that he ought not have been retrenched as
he had subsequently
made an election to go to Saffy Shaft needs to be
assessed within the overall factual context of what had happened
throughout the
consultation process, and in particular, how Lonmin
had conducted itself as well as the attitude of the affected
employees. It
has already been stated that Lonmin, and AMCU for that
matter, had throughout the consultation process, sought to avoid the
retrenchment
of the employees. Lonmin went out of its way to
accommodate Lepota, and any deadlines set for him were completely
ignored. AMCU
for its part took all efforts to convince its members
to exercise their options to no avail.
[19]
In my view, it is not far-fetched to conclude that Lepota’s
approach was symptomatic
of the other Mechanised Operators’
steadfast stance, which was resistance to all available options given
to them, and a posture
that they would rather be retrenched. It is
found that his contentions that he was simply waiting to be paraded
to report to Saffy
Shaft ought to be rejected as improbable and
lacking any credibility. My conclusions in this regard are further
fortified by the
following considerations;
19.1
Upon acceptance of the offer at Roland Shaft, even if it was common
cause that he had expressed
an interests to go to Saffy shaft, there
is no evidence that he took any steps to pursue the latter offer,
other than going through
a medical examination as he had alleged.
19.2
Segabetla upon not hearing anything from Lepota had paraded him,
which parade Lepota had ignored.
19.3
Several meetings were held with AMCU and Mechanised Operators in
February 2016. At no stage
during those meetings had Lepota
indicated that he had made an election to go to Saffy shaft and had
completed his medical assessment.
Any reasonable employee in the
circumstances where a retrenchment was imminent, would have raised
the issue with AMCU or management
in those meetings, and pointed out
that he was waiting to be transferred to Saffy shaft.
19.4
His contentions that he had communicated his election to go to Saffy
shaft to Rathulwane, who
had informed him to wait is clearly
improbable. Rathulwane’s testimony was that he did not
communicate or consult directly
with individual employees as there
was a forum for that process. Even if there was any
iota
of
truth in Lepota’s contentions that Rathulwana had informed him
to wait, as to the reason that he had not advised AMCU
as late as
February 2016 of the reason he had still not reported at Saffy
shaft remains unexplained.
19.5
In line with the above, Lepota’s conduct and approach was
clearly in alliance with his
other colleagues as already discussed
above, which was resistance to all the options made available, and/or
to make an election
to go to any of the available shafts, and yet
fail or refuse to report at those shafts after being placed, as
attested to by Rathulwane.
19.6
Lepota’s further contention that he assumed that after having
gone through the medical
assessment process for the purposes of the
post at Roland shaft, he did not need to go through the process again
for the purposes
of his election to go to Saffy shaft, is equally
fallacious in the light of the general approach of all the Mechanised
Operators
as outlined above, and his other contention that he
had in any event, undertaken the second medical assessment.
19.7
Lonmin had accepted that Lepota had communicated his interest to go
to Saffy shaft. It however
contended that mere expression of interest
to go to Saffy shaft was not sufficient as he was required to take
further steps in
that regard. Even if it were to be accepted that
Lepota held the view that he did not need to undertake any further
medical assessment,
nothing prevented him from responding to the
parade by Segabetla at Roland shaft as already indicated, to advise
her that indeed
he had completed all processes, but only for the
purposes of going to Saffy shaft.
19.8
The Human Resources Department at Saffy shaft however would not have
paraded him in the absence
of him having presented his medical
assessment records to it or any documentation to demonstrate that he
had been placed at that
shaft. Accordingly, any contention by Lepota
that he was simply waiting to be paraded at Saffy Shaft ought to be
rejected, as his
attitude throughout the consultation process was in
line with the Merchandised Operators’ overall approach, which
was not
only to resist all available options, but further to dare
Lonmin to retrench them.
19.9
When Lepota had not reported at Roland shaft, Lonmin was within its
rights to assume that he
was no longer interested in the post, and to
offer it to another employee. The evidence indicated that even as
late 24 February 2016,
other employees who had made an
election at that belated stage were accommodated. It is inexplicable
that only Lepota’s election
was not considered by Rathulwane at
any stage, or even by AMCU, when the final list of employees to be
retrenched was finalised.
Lepota’s contentions that he was not
aware of the list until he received his letter of termination equally
ought to be rejected,
as it is improbable that AMCU would have
finalised that list without consulting with him and all the other
employees affected.
19.10 Given
the protracted nature of the consultation process, and Lepota’s
conduct and approach, it was not necessary
for Lonmin as it was
suggested on his behalf, to have obtained his permission to terminate
his services. He had been warned on
several occasions as to what the
consequences of failing to make an elections were.
19.11 Equally
so, there was further no obligation on Lonmin to institute
disciplinary proceedings against Lepota for
failing to report at
Roland shaft as suggested on his behalf, as he had in essence,
repudiated his acceptance of the offer, which
repudiation Lonmin was
entitled to accept. Any suggestion that Lonmin had dismissed Lepota
on the grounds of misconduct disguised
as operational requirements is
indeed far-fetched and without merit.
19.12 To the
extent that Lepota further sought to disavow AMCU’s mandate to
act on his behalf in the consultation
process, that view and approach
is clearly belated in the light of the proverbial horse having
bolted. Furthermore, the argument
is unsustainable in the light of
the provisions of section 200 of the LRA, which enjoined AMCU to act
in its interests and those
of its members during the consultation
process. There is no evidence to suggest that Lepota had resigned
from AMCU at any stage
during the consultations, for any argument
that AMCU did not represent his interests to be sustainable.
[20]
In
conclusion, it needs to be stated that in a letter dated
1 March 2016, Lonmin terminated the employment services of
Lepota on account of its operational requirements, and further since
he had failed to apply for the VSP and/or accept redeployment.
This
decision cannot on the authority of
Latex
Surgical
[4]
be
faulted, as Lonmin had together with AMCU, done everything
conceivable, to ensure that none of the Mechanised Operators
were retrenched. Lonmin and AMCU had engaged in protracted
consultations and the employees, including Lepota, were warned that
if they rejected the options available, Lonmin would have no option
but to terminate their services. To the extent that Lepota
and others
had over a period of October 2015 to February 2016 failed
to reasonably consider these options despite repeated
attempts by
both AMCU and Lonmin to appeal to their senses, he and others cannot
complain that they were not given a chance to
avoid his dismissal.
[21]
It follows in the light of the conclusions reached above that
Lepota’s claim ought
to fail. I have further had regard to the
requirements of law and fairness insofar as Lonmin sought an award of
costs. Even though
I am of the view that Lepota’s claim was
ill-considered, I equally hold the view that a costs order is not
warranted in this
case.
[22]
Accordingly, the following order is made;
Order:
1. The Applicant’s
claim of an unfair dismissal on the grounds of the Respondent’s
operational requirements is dismissed.
2. The is no order as to
costs.
___________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
N. E Matshikiri, instructed by Johannesburg Justice Centre
(Legal-Aid
South Africa)
For
the Respondent: N. O Mamabolo of N.O Mamabolo
Incorporated
[1]
The letter reads as follows:
“
NOTICE
OF TERMINATION OF EMPLOYMENT DUE TO RETRENCHMENT
1.
In a previous communication to you, you were notified that, as a
result of organisational restructuring,
you are affected and the
Company subsequently afford you an extra opportunity to apply for a
Voluntary Separation Package or
to apply to be reskilled or
retrained for a suitable alternative vacant position.
2.
…
3.
You have failed to make an application for a Voluntary Separation
Package or apply to be reskilled
or retrained for a suitable
alternative position and, as a result thereof, the Company is left
with no choice but to retrench
you.
4.
Please note that your employment with the Company will terminate
with effect from 2 March 2016
due to retrenchment.
5.
…”
[2]
SA
Airways v Bogopa and Others
(2007)
28 ILJ 2718 (LAC) at para 60
[3]
Freshmark
(Pty) Ltd v Commission for Conciliation, Mediation and Arbitration
and Others
(2003)
24 ILJ 373 (LAC) at para 24;
Chemical
Workers Industrial Union & others v Latex Surgical Products
(Pty) Ltd
(2006) 27 ILJ 292 (LAC)
[4]
Supra
at
para 69