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[2020] ZALCJHB 35
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National Association of South African Workers (NASA-Workers) and Another v Uniliver South Africa (Pty) Ltd (J142/20) [2020] ZALCJHB 35; (2020) 41 ILJ 1399 (LC) (14 February 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
J142/20
In
the matter between:
NATIONAL ASSOCIATION
OF SOUTH AFRICAN
WORKERS
(NASA-WORKERS) 1
st
Applicant
THOMAS
MAROBONGWANE 2
nd
Applicant
And
UNILIVER
SOUTH AFRICA (PTY) LTD
Respondent
Heard
:
13 February 2020
Delivered
:
14 February 2020
Summary:
Application to compel consultation and or follow a fair procedure
in terms of section 189A (13) of the LRA. Employee offered and
accepted an alternative position. Trade union insisting on
consultation that ought to have happened in their view prior to
offering
an employee an alternative. The purpose of section 189A (13)
is to ensure judicial management of the process with the sole purpose
to ensure job security. Where job security is not threatened, there
is no need for a court to judicial manage the process. Trade
union
having being told that the judicial management is not necessary is to
be mulcted with costs. Held (1): The application
is dismissed.
Held (2): The Trade union to pay the costs of this application.
JUDGMENT
MOSHOANA, J
Introduction
[1]
This is one of those hopeless applications that grace the courtrooms
of
this Court. The strange feature about this case is that a trade
union seeks to reverse the gains achieved by its member to achieve
job security. The net effect of this application being that the
appointment of the second applicant, which was made to avoid the
dismissal of the second applicant for operational requirements,
should be disregarded and compel the employer into a consultation
process en route termination for operational requirements. Strange
enough, it is a known fact that trade unions exist mainly to
protect
the employees job security, this trade union seeks to obtain an order
that would effectively threaten the job security
of its member.
Background
facts
[2]
Given the view I take at the end of this
judgment, it is unnecessary to detail the facts relevant to this
matter with any measure
of volume. The pertinent facts are that
during August 2019, the respondent commenced a process contemplated
in section 189 of the
Labour Relations Act, 1996, as amended (“the
Act”). A facilitation process commenced within contemplation of
section
189A of the Act. Later, the facilitation process conducted by
the Commission for Conciliation, Mediation and Arbitration (“the
CCMA") was withdrawn. According to the retrenchment notice, the
position occupied by the second applicant – 4 JC16 roles
–
would become redundant. On or about 7 January 2020, the second
applicant was offered an alternative position since his
position
became redundant. Around 30 January 2020, the second applicant
accepted the alternative position. Despite that, on 7 February
2020,
the present application was launched to be heard on 13 February 2020.
[3]
Owing to that, the respondent through its
attorneys of record, addressed a letter to the trade union advising
against the application
since the second applicant was not dismissed.
A demand was made to have the application withdrawn. This demand was
ignored and
the application was persisted with for some spurious and
flimsy reasons. The application was argued before me on 13 February
2020.
Evaluation
[4]
The
procedure available to consulting parties in section 189A (13) is
there for a purpose. Its purpose was clarified by the Constitutional
Court.
[1]
Its purpose is to
ensure judicial management to effectively protect job security. Where
job security is not threatened, it is an
abuse of court processes to
invoke the Court’s judicial management powers. In the present
application, it is common cause
that the second applicant was not
dismissed. A submission that the second applicant’s old
position was not redundant is neither
here nor there. Should the
second applicant hold a view that he has been demoted by being
offered a new position, the applicant
may invoke the unfair labour
practice process. One of the obligations provided for in section 189
is for an employer to disclose
the alternatives considered before
proposing dismissal. Thus, the respondent was obligated to offer the
second applicant an alternative
before it may propose dismissal.
Having made an offer, which was accepted, the respondent reached
consensus on appropriate measures
to avoid the dismissal.
[5]
Having reached consensus, the obligation to
consult ends. An application to compel a purposeless consultation is
nothing but an
abuse of a court process. In terms of section 162,
this Court has a wide discretion with regard to costs. This is one of
those
applications that are vexatious and frivolous. An order of
costs is warranted, despite the fact that there is an on-going
relationship
between the parties. The applicants were warned about
the lack of merits of the application and further was given an
opportunity
to withdraw the application without incurring costs.
Taking all of the above into account, it would be unfair to mulct the
respondents
with the costs of this application. Affidavits in support
of this application were made by a union official. There is not even
a confirmatory affidavit by the second applicant. In the absence of a
confirmatory affidavit, one doubts whether the second applicant
supported the application. Resultantly, the trade union must solely
be ordered to carry the costs of this application. Its conduct
is
reckless and deserves a punitive costs order as a mark of
displeasure.
[6]
For all the above reasons, the application must
fail.
[7]
In
the results, I make the following order:
Order
1.
The
application is dismissed
2.
The
first applicant, the trade union must pay the costs of this
application on the scale of attorney and own client.
_______________________
G. N. Moshoana
Judge
of the Labour Court of South Africa
Appearances
For the Applicants: Ms
Mokoena Seritsane (Union Official – NASA)
For the Respondent:Mr G
Fourie SC
Instructed
by:Norton Rose Fulbright South Africa, Sandton.
[1]
Steenkamp
v Edcon Limited
[2019] ZACC 17
(30 April 2019)