BMJ/AE
5 February 1999
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO J 928/98
In the matter between:
MOKHETHI JOHANNES TSETSANA
Applicant
and
BLYVOORUITZICHT GOLD MINING COMPANY LIMITED
Respondent
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J U D G M E N T
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JAMMY, AJ
1.The "certificate of outcome of dispute referred for conciliation"
signed by the presiding Commissioner of the Commission for
Conciliation Mediation and Arbitration, at the conclusion of a
conciliation meeting between the parties to this matter on 24
April 1998 records the dispute which remained unresolved as
concerning an "alleged unfair retrenchment." The picture
presented in the applicant's statement of claim in this matter and
on which he relies in support of his claim for reinstatement,
alternatively compensation, goes significantly further. It is one
alleging ongoing racial discrimination during 1997, leading to the
lodgment by him of a formal grievance as a consequence of
which, he states, he was purportedly "retrenched" in February
1998.
2.At a pre-trial meeting with the parties convened by me in
Chambers before the hearing, the applicant augmented these
allegations. The purported retrenchment, he inferred, was a
subterfuge for the termination of his employment for other,
discriminatory, reasons but even if I were to find that this was not
the case and that it was commercially sustainable, the selection
criteria applied by the respondent were unfair and he was not
given proper notice of the termination of his employment.
THE RESPONDENT'S EVIDENCE
3.The first witness called by Mr N Pretorius, representing the
respondent, was Mr W A Boshoff, its Human Resources Manager.
The Blyvooruitzicht Gold Mining Company, he testified, had
become a marginal mine in 1997, primarily as a result of financial
pressure consequent upon the falling gold price. The necessity to
introduce and implement radical cost-saving measures in that
context, was canvassed in intensive consultations with five trade
unions, respectively representing employees in different sectors
of employment on the mine. Those unions were the
Administrative, Technical and Electronic Association, the
Mineworkers Union, the National Employees Trade Union, the
Officials Association of South Africa, and the S A Electrical
Workers Association.
4.In due course, a Retrenchment Agreement was concluded with
these unions on 20 August 1997. That agreement recorded, inter
alia, steps to be taken towards the avoidance of retrenchments
where possible, the selection criteria to be applied in any
retrenchment programme, the establishment of a "Monitoring
Committee" comprising one mine level representative from each
union/association party and two management representatives, as
well as severance benefits and other related issues.
5.Pursuant to an ongoing consultation process in the Monitoring
Committee, Mr Boshoff continued, three retrenchment exercises
were implemented. The first, in September 1997, resulted in the
laying off of approximately 1000 employees. A further 1000
employees were retrenched in December 1997 and in a final
retrenchment, in February 1998, the employment of
approximately 1000 more employees was terminated. At that
stage, of a workforce originally exceeding 3000, only
approximately 300 employees remained in the service of the
company.
6.The applicant, Mr Tsetsana, who was employed as a learner
radiation protection officer, was classed as an official, a category
of employment represented in the negotiations by the Officials
Association of South Africa. At the time of the retrenchment in
September 1997, the company employed three learner radiation
protection officers - the applicant and two white officials, certain
Adams and De Beer. The applicant was initially erroneously
identified for retrenchment at that time but when, at his
instance, it became apparent that he had been in longer service
with the company than either Adams or De Beer, it was those two
officials whose services were terminated in the course of the
initial retrenchment exercises leaving the applicant as the sole
learner radiation officer in the employ of the company as at
February 1998 when he too, together with virtually the entire
remaining workforce on the mine, was retrenched.
7.The retrenchment programme, the necessity for which was
outlined in detail by Mr Boshoff and which had been unreservedly
accepted by the participating trade unions in the course of
intensive ongoing consultation, had been carried out with
meticulous adherence to the provisions of the Retrenchment
Agreement and the requirements of the Labour Relations Act
1995, he said.
8.Asked by the applicant in the course of cross-examination why
he, the applicant, had not received promotion to the position of
he, the applicant, had not received promotion to the position of
full, as opposed to learner, radiation officer notwithstanding that
he had passed the necessary examinations in that regard, Mr
Boshoff replied that as a consequence of the financial constraints
which the respondent was experiencing, all promotions had been
frozen from approximately August 1997. Referred by the
applicant to a "career path" document applicable to radiation
protection officers and which provided for the promotion of
"Learner Radiation Screening Officers" (Category 10 salary scale)
to the position of "Radiation Screening Officers" (Category 12
salary scale), "if a vacancy exists", and asked why, once he had
passed the relevant examinations, he had not been promoted, Mr
Boshoff replied that no vacancy in fact existed at the relevant
time to which the applicant could have been so promoted. The
career path document was in any event nothing more than a
proposal for management discussion and had never been
formally implemented.
9.It was correct, said Mr Boshoff in response to further
questioning, that during January 1998 the applicant had handed
to him a copy of a grievance letter addressed by him to the
respondent's general manager, protesting the fact that he had
not been promoted notwithstanding his success in the requisite
examinations and purported discrimination against him in the
training programmes which preceded them. He denied that his
response to the letter had been that the company would not
tolerate it. All that he had stated was that certain people might
take offence at the tone in which it had been written.
10.Mr D H Jenner is the Chief Environmental Officer and Head of
the Environmental Department on the respondent mine. The
applicant was employed in his department as a learner radiation
and screening officer. His training in the use of radiation
detection instruments involved relatively simple examinations
relating in the main to the use of that instrumentation.
11.During 1997, he testified, there were three learner radiation
officers employed in the department but as sections of the mine
in which they normally operated closed down, the necessity for
the screening functions which they performed was significantly
reduced.
12.In the course of the retrenchment exercises implemented on
the mine during the period September 1997 to February 1998,
the mine during the period September 1997 to February 1998,
two of the learner screening officers, Adams and De Beer, were
retrenched in December and the applicant's services were
terminated in February.
13.Following a meeting with union representatives on 13
February, said Mr Jenner, he was approached by an official of the
Officials Association of South Africa regarding the number of
people represented by that union who were to be retrenched in
the final exercise. The applicant was the only employee involved
and when the necessity to retrench him and all other aspects of
that retrenchment were reviewed, the union official accepted the
position without reservation. Letters of termination of
employment were then prepared by the Financial Manager and
he was directed to distribute them to the affected employees.
That addressed to the applicant, who was described therein as
"Learner Screen Officer" was handed to him, as far as he can now
recall, on a Friday towards the end of the month. The applicant
however objected to his description in the letter as a learner
screen officer because, as far as he was concerned, he was no
longer a learner but was fully qualified. In order to assist him in
the context of future employment therefore, said Mr Jenner, he
agreed that the letter would be retyped to reflect him as a
Radiation Screening Officer and this was done on the morning of
Tuesday 24 February 1998, the letter inadvertently being dated
that date instead of the original date of 20 February. He located
the applicant on the mine premises and handed him the letter in
his office, for which he signed receipt.
14.He has at no time, Mr Jenner concluded, had any personal
grudge against the applicant and there was no question of the
applicant ever having been discriminated against because of his
race or for any other reason. He was treated exactly as every
other employee had been. The question of racial discrimination
had never been raised by the applicant in any discussion with
him.
THE APPLICANT'S TESTIMONY
15.At the time of his employment by the respondent, said Mr
Tsetsana at the commencement of his testimony, he was
appointed a learner screening officer and sent for vocational
training. On its completion he received from the Chamber of
training. On its completion he received from the Chamber of
Mines his first "Certificate in Radiation Protection Monitoring -
Screening." Thus qualified, he raised with his immediate superior
the question of his possible promotion and was assured that this
would be addressed as soon as possible. This did not happen
however, despite further assurances that the matter was
receiving attention and in the meantime he worked "patiently
and obediently", he said.
16.During July 1997, two further learner officers were employed
and in September, the company commenced a retrenchment
exercise. At that time the head of his department, Mr Jenner, was
on leave and when he returned to find the retrenchment in
progress, he "did all in his power to protect all of us."
17.On 5 December, together with Mr De Beer, one of the other
screening officers, he received a notice of retrenchment. The
other learner officer, Mr Adams, the nephew of his supervisor,
was not retrenched and this, said the applicant, was perceived by
him as discriminatory nepotism. He protested that he had been
in longer service than the other two and this was in due course
acknowledged and his retrenchment withdrawn. Adams was
retrenched in his stead and he again received an assurance from
the general manager that the question of his promotion would
receive attention. He was also told that the question of increased
back pay, retrospective to the time of his qualification, would also
be addressed.
18.Nothing more happened however, and he then decided to
address a letter setting out his grievances to the general
manager. He felt, he said, that he was being discriminated
against because of his colour. He had by chance come across
pay slips relating to Adams and De Beer, indicating that they had
been promoted and had received salary increases. When he
complained of this to Mr Jenner, the response was that his
increase had been recommended but had been inadvertently not
forwarded to management.
19.Further complaints went unheeded and eventually, on 23
February 1998, he commenced a period of leave for which he had
previously applied and which had been approved. A leave advice
form submitted by him indicated that approval in respect of the
form submitted by him indicated that approval in respect of the
period 23 February to 24 March 1998. On 24 February however,
he received a telephone call from Mr Jenner informing him that he
had been retrenched and that his services had been terminated
on one month's notice, but that he was not required to work as
he would be paid in lieu thereof. The payment subsequently
tendered to him was based on his rate of remuneration as a
learner screening officer at Salary Scale 10 and not as a qualified
officer at Salary Scale 12 as should have been the case. He did
not return to work thereafter.
20.Cross-examined by Mr Pretorius, Mr Tsetsana did not
subsequently dispute the company's submission that, in fact,
whatever documentation he may have seen to the contrary,
which was not conceded, neither Mr Adams nor Mr De Beer, who
had achieved the same qualifications as he had, had been
promoted or had received increases in salary. The salary levels
of each of them moreover, were lower than his own. He disputed
Mr Jenner's evidence regarding the amendment of his initial
notice of termination as a consequence of his own query
regarding his stated designation. He had, he now conceded,
received the initial letter but did not understand its contents. The
advice that he was finally retrenched had been given to him
telephonically by Mr Jenner on Tuesday 24 February. He had
never joined the trade union which allegedly represented him and
did not consider himself bound by negotiations and agreements
in which it had purportedly been involved on behalf of himself
and other employees.
CONCLUSION
21.The applicant, in what must clearly be acknowledged as his
bitter and pained perception of the unacceptable treatment
which he had received at the hands of the respondent, was an
intense participant and a vigorous proponent of his own cause
throughout this hearing. Whilst that is perhaps understandable,
there is however nothing on the evidence before me to suggest,
when the probabilities emerging therefrom are assessed, that
that perception was justified. The applicant's testimony
regarding the sequence of events leading up to the termination
of his employment was at best for him questionable in the light of
of his employment was at best for him questionable in the light of
the precise evidence of the company's witnesses in that regard.
His perception of racially motivated discrimination against him,
apart from the fact of its vague and uncertain development in the
course of his evidence, is emphatically negated by the evidence
of both Mr Boshoff and Mr Jenner to the effect that neither Mr
Adams, who, in addition to being white, was allegedly
nepotistically advantaged, nor Mr De Beer, were treated in any
preferential manner. The facts that they were not promoted, did
not receive salary increases and were retrenched before the
applicant was, were ultimately not disputed by the applicant.
The reasons for his non-promotion - the initial absence of any
vacancy in that regard and the subsequent freezing of
promotions across the board, are compelling and again
unchallenged. I reiterate that, in my view, there is no suggestion,
from the evidence before me, of any discriminatory practice on
the part of the company in its dealings with the applicant at any
stage.
22.I am also satisfied, both from the testimony and the
documentation tabled in this matter that the retrenchment
programme implemented by the respondent was in full
compliance with the requirements of both the Retrenchment
Agreement concluded by it with the collective trade unions
recognised on the mine and Section 189 of the Labour Relations
Act 1995. The applicant's contention that he is not bound by the
terms of agreements concluded by a trade union of which he is
not a member, is without substance or foundation. The
Retrenchment Agreement of August 1997 is unquestionably a
collective agreement which binds, inter alia, employees who,
although not members of a registered trade union which is a
party to it, are employed in the workplace to which it applies and
in which that trade union enjoys majority representation of the
employees there employed.
Labour Relations Act 1995: Section 23(1)(d)(iii).
23.For all of these reasons, I find:
23.1that the applicant was at no time subjected to any form of
unlawful or unfair discrimination;
23.2that the retrenchment programme implemented by the
respondent during the period September 1997 to February 1998
was substantively and procedurally fair and proper having regard
to the provisions of the Retrenchment Agreement concluded by it
with the representative trade unions involved and to the
statutory requirements of the Labour Relations Act 1995;
23.3that the applicant is accordingly not entitled to any form of
relief arising therefrom.
24.That however is not the end of the matter. The applicant's
testimony regarding his notice of termination is confusing and
contradictory. He asserts in the first instance that the notice
which he received was oral and telephonic on 24 February 1998.
He acknowledges however that he did receive earlier written
notice of that termination which he read but did not understand.
He denies that he required any amendment to that notice in the
context of his designated status but it is improbable, in my view,
that he would have been described any differently therein than
was the case in the retracted notice of retrenchment given to him
in December 1997 and in which he was referred to as a "Learner
Screen Officer." The fact that the final notice, which I am
prepared to accept, on Mr Jenner's evidence, was erroneously
dated 24 February 1998 instead of its original date of 20
February, reflects the applicant's status as "Radiation Screening
Officer" but that the payment made to him was nonetheless
calculated on the basis of a salary level applicable to a learner
screening officer, lends compelling substance, in my opinion, to
Mr Jenner's testimony that the letter was retyped at the
applicant's instance to reflect that changed status.
25.Section 14 of the Basic Conditions of Employment Act 3
of 1983, in force at the time of the applicant's retrenchment,
deals with termination of contracts of employment. The proviso
deals with termination of contracts of employment. The proviso
to Section 14(2) of that Act provides, inter alia, that notice of
termination -
"(ii)............. shall not run concurrently with, and notice
shall not be given during, an employee's absence on leave
granted in terms of Section 12 or any period of his
military training."
26.As I have indicated, I am prepared to accept that notice of
termination of his employment was given to the applicant on
Friday 20 February 1998 and that the notice period therein
indicated was 30 days. It is not however disputed by the
respondent that the applicant was due to take approved leave for
a period of approximately one month commencing on Monday 23
February 1998. Whilst I am satisfied therefore that the notice of
termination was not given to him during his absence on leave, it
will be immediately apparent that the period of that notice would
run concurrently with a portion of his approved leave and, to that
extent, cannot constitute valid notice for that period.
27.If, as I accept was the case, the 30 day notice period in the
letter of termination was intended to commence on 21 February
1998, it would have expired on 23 March 1998. The applicant's
scheduled leave, had his services not been terminated, would
have expired on 24 March 1998 and the period of purported
notice which ran concurrently with that leave is therefore null and
void. That period constitutes 28 days of the notice period of 30
days and the applicant is accordingly entitled to be paid
additional notice pay in respect of that 28 day period calculated
at his rate of pay prevailing as at 20 February 1998.
28.I accordingly make the following order:
28.1The applicant's claim for reinstatement, alternatively
compensation, is dismissed.
28.2The respondent is ordered to pay to the applicant, within 14
(fourteen) days of the date of this order, an amount equivalent to
28 days pay in lieu of valid notice, calculated on the applicant's
prevailing rate of pay as at 20 February 1998.
28.3For the reason that the applicant has not emerged from
these proceedings entirely without relief, there is no order as to
costs.
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B M JAMMY
ACTING JUDGE OF THE LABOUR COURT
DATE OF HEARING:2 AND 3 FEBRUARY 1999
DATE OF JUDGMENT:9 FEBRUARY 1999
APPLICANT:IN PERSON
FOR THE RESPONDENT:MR N PRETORIUS