IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT PORT ELIZABETH
CASE NO.
P159/98
In the matter between
FOOD AND GENERAL WORKERS UNION 1st Applicant
R NKOSI 2nd Applicant
K NOFEMELE 3rd Applicant
Y NKOZWANA 4th Applicant
E TOTANA 5th Applicant
E MTULU 6th Applicant
and
IRVIN AND JOHNSON LIMITED Respondent
JUDGMENT
GON, AJ
1. This judgment was originally part of a larger matter in which an application
was to be brought by the Food and Allied Workers’ Union (“FAWU”) and this
application by the first applicant, both against the respondent.
2. With the agreement of both unions the respondent was to apply to consolidate
the two actions. At the last minute FAWU withdrew its application. The parties
to this matter then agreed to a pretrial conference being held before me in order to
narrow the issues further as the existing pretrial minute did not so sufficiently.
3. It was agreed in the pretrial conference that the first question in dispute was
whether :
(1) there was an obligation on the respondent to have consulted with the
first applicant;
(2) consultation was done through the second applicant;
(3) there was a waiver of a right to consultation by the first applicant.
4. The parties agreed at the pretrial conference that if I found in favour of the
respondent in respect of the obligation to consult with the first applicant then the
matter would be finally resolved and the issues regarding the retrenchment process
need not be decided.
5. I heard evidence and argument on the question raised in paragraph 3 above
and now give judgment.
6. The first applicant was the representative trade union at the respondent until
March 1996 when it was derecognised in favour of FAWU which was recognised
in April 1996. This was common cause. Likewise, it was common cause that stop
orders were not paid to the first applicant by the respondent after March 1996. It
was also common cause that the respondent applies the principle of
majoritarianism, namely, that when a union has 50% plus one membership it
represents all employees contained in the bargaining unit.
7. The respondent denied that it had allowed exceptions to the aforementioned
majoritarianism principle, in response to the allegation that when FAWU was the
minority union it was allowed to represent its members in retrenchment
discussions.
8. On 2 March 1998 the respondent advised its employees by letter that due to
the magnitude of the losses at the Port Elizabeth and George branches and the
results of a due diligenc exercise that had been conducted by the respondent, the
respondent had taken over Pillsbury Brand Africa (the individual applicants’
previous employer).
9. The letter went on to state that it would not be able to retain all employees in
employment after March 1998, pending consultations, which had to be held “as a
matter of urgency because it cannot sustain the present losses beyond 1 April
1998. We invite employees via representative bodies (where they exist) or in
groups using elected representatives to take part in this process where details as
groups using elected representatives to take part in this process where details as
contemplated in the Act, can be addressed and finalised.”
In evidence it was revealed that the respondent was losing between R2 and R3
million per month with the PE and George plants operating.
10. The first applicant conceded that consultation meetings were held with
FAWU on 2,4,18, and 20 March 1998.
11. On the 18 March 1998 the respondent received a letter from the first
applicant (dated 17 March 1998) wherein it stated that it represented its members,
the second to the sixth applicants, and referred to the letter given to all employees
on 2 March 1998 which invited employees to take part in the process of
consultations with their representatives or in groups. The first applicant said that
it was mandated to represent the individual applicants and asked the respondent to
let them know “ the date when said consultation will take place”.
12. On 25 March 1998 the respondent replied to the first applicant’s letter stating
that:
(1) FAWU is the representative majority union;
(2) the consultations had commenced with FAWU on 2 March 1998
and that three
meetings had followed;
(3) consultations would continue with FAWU and the respondent had
no record of the applicants’ membership of the first applicant;
(4) at a meeting on 20 March 1998 Nkosi acknowledged that he was
satisfied with FAWU representing him; and
(5) that the letter had been received two weeks after the 2 March 1998
letter had
been distributed.
The letter from the respondent ends:
“We trust that this satisfies any concerns you may have regarding the consultation
process. The principle of majoritarianism, oneindustry oneunion, is acceptable
by COSATU and endorsed by ourselves.”
13. Mr. Japhet Hendricks, respondent’s senior human resources officer
(“Hendricks”), gave evidence to the effect that he met with the individual
applicants after the respondent received the first applicant’s letter of 18 March
1998 and expressed his surprise that they were still members of the first applicant.
14. Hendricks also said that the second applicant was then asked at a meting
whether he was satisfied that FAWU had represented satisfactorily to which he
replied in the affirmative.
15. In extraordinary evidence given by the second applicant he said that he
remained a member of the first applicant after it was derecognised. He said,
however, that he was elected as a shop steward by the FAWU members of his
department in late 1997 as a representative of FAWU. He said, which I find
extremely hard to believe, that no one questioned his union membership prior to
being elected. It is astonishing that FAWU should allow a member of the
first applicant, who is also not their member, to represent FAWU at the
respondent.
16. In any event, he conceded that he attended the consultations in March with
FAWU as a FAWU representative. He further agreed with Hendricks, evidence
that he had said, after receipt of the first applicant’s letter of 18 March, that he
was satisfied with FAWU’s representations in the consultation.
17. The second applicant consistently denied that he ever became a member of
FAWU and submitted as evidence that his pay slip showed deductions still being
made to “F.G.W.Union”. Hendricks said that it was an administrative error that
the pay slips still reflected the first applicant as all deductions made were for
FAWU and all FAWU’s dues were sent out to FAWU with a list of names and
clock card numbers of its members. As mentioned earlier the first applicant
admitted in the pretrial conference that it received no stop orders from the
respondent after March 1996. Hendricks also said that the respondent never
received a complaint from FAWU that it was not receiving stop orders on behalf
of the second applicant. He also said that the respondent only deducted stop
orders from signed FAWU stop orders. I do not find, therefore, the second
applicants’evidence credible in general, but least of all, on the issue of sole
membership of the first applicant.
18. Hendricks stated that until the letter of 18 March 1998 he had no knowledge
that employees still retained membership of the first applicant. I have no reason
to disbelieve him. The issue of membership of the first applicant was first raised
with Hendricks after the 18 March 1998 letter and this was conceded by the
second applicant although he initially tried to intimate that it was shortly after 2 or
3 March 1998. In evidence he said that he approached Hendricks with the third
3 March 1998. In evidence he said that he approached Hendricks with the third
and fifth applicants. In crossexamination he said that they were with him when
he telephoned Hendricks.
19. Mr. Loxton argued for the respondent that notwithstanding the requirement
in section 189(1)(c)of the Labour Relations Act, 1995 (“the Act”), that when
dismissing employees for operational reasons an employer must consult with any
registered trade union whose members are likely to be affected, one of the
principle aims of the Act is to promote collective bargaining and that its thrust is
majoritarianism. Consequently it would be unreasonable to expect the respondent
to embark on separate consultations with majority and minority unions.
20. While this threat exists, I agree with Mr. Nduzulwana, for the applicants, that
section 189(1)(c) requires consultation with any registered trade union whose
members are likely to be affected by retrenchment and the invitation of 2 March
was not exclusive to the majority union only. The problem of separate
consultations with a majority union and minority union respectively could be
resolved by requiring the two unions to consult jointly.
21. However, the above suggestion presupposes that the two unions came to the
table at roughly the same time. I do not believe that the applicants could have
expected the respondent to know that they were still members of the first
applicant. In the circumstances it could be expected of those employees who felt
they were not represented by the majority union to alert the respondent to their
membership of the first applicant as soon as possible.
22. FAWU was recognised to represent the interests of all the members of the
bargaining unit, which included the individuals applicants. More specifically
representation was additionally found in the form of the second applicant who
represented employees as a FAWU shop steward and who expressed his
satisfaction at FAWU’s representation. I do not believe that section 189(1)(c) is
unwavering and immutable. I agree with Mr. Loxton that in the circumstances of
urgency communicated in the letter of 2 March 1998, the first applicant was tardy
in its intervention.
23. By the time it made its presence felt, most of the consultation had been
completed union recognised to represent the interests of all the employees within
the bargaining unit. At all stages up to the letter of 18 March 1998 the second
applicant together with other FAWU officials , had represented the individual
applicants.
24. Mr. Loxton raised the point that although the “no difference” principle had
been rejected, many judgments rejecting it in fact endorsed it. Most judgments in
rejecting the “no difference” principle consider scenarios in which no consultation
took place at all and the employer tried to argue that it would make no difference
if it had. In this sense it is correctly rejected.
25. Mr. Nduzulwana quoted the case of NUMSA v Atlantis Diesel Engines (Pty)
Ltd (1993) 14 ILJ 6412 (LAC) @ 648FG to the effect that the need for procedural
Ltd (1993) 14 ILJ 6412 (LAC) @ 648FG to the effect that the need for procedural
fairness was all the more accurate in the case of retrenchment. I agree. I do not
believe, however, that it has to be absolutely formalistic if met in substance.
26. Mr. Loxton argued that the first applicant was the author of its own
misfortunes due to its tardiness. He quoted Johnson and Johnson v CWIU
(Pty)Ltd [1998 ] 12 BLLR 1209 [LAC] @ 1216EH28 to the effect that the joint
consensus seeking process may be foiled by either one of the consulting parties,
including, the deliberate delaying of the process. I do not believe the delay was
intentional but rather negligent for which I do not believe the respondent ought to
bear the responsibility.
27. Mr. Loxton also referred to NEHAWU v University of Fort Hare (1998) 19
ILJ 122 [LC], in which Zondo AJ (as he then was) found the union applicant was
to blame for the fact that its members had been retrenched without any meaningful
input by it into the consultation process which the respondent had warned it about.
The circumstances of that retrenchment were different but to the extent that the
respondent issued a warning in this case it was contained in the letter of 2 March
1998 and was responded to tardily.
28. I agree that in the circumstances it was unreasonable to consult so late in the
process for four employees, who had otherwise been represented by FAWU,
where losses of R2 R3 million were being made a month.
29. Mr Loxton reluctantly argued that the individual applicants waived their
rights to the first applicant’s representation. I am equally reluctant to accept this
argument. The applicants had knowledge of their rights but one cannot accept
with certainty that it was full knowledge at all relevant times. The respondent did
not prove that the individual applicants with full knowledge of their rights decided
to abandon those rights. They clearly did not. They acted on their rights
belatedly.
30. In light of the above, my decision is that the respondent was not obliged to
consult with the first applicant in the circumstances and that consultation was
effected by FAWU, inter alia, through the second applicant in his capacity as a
FAWU shop steward.
31. The application is dismissed and the costs are to follow the result.
.....................................
GON, AJ
ACTING JUDGE OF THE LABOUR COURT
Date of hearing: 8 March 1999
Date of judgment: 9 March 1999
For the applicant: Mr. Loxton of Findlay and Tait Inc.
For the respondent: Mr. Nduzulwana of the First Applicant