JUDGMENT
IN THE LABOUR COURT OF SOUTH AFRICA
HELD ATJOHANNESBURG
Reportable: No CASE NUMBER: J1076/98
Of Interest: No DATE: 19990408
In the matter between:
JUDITH XABA SIBIYA Appellant
and
INTERACTIVE TECHNOLOGIES (PTY) LIMITED Respondent
J U D G M E N T
BASSON, J :
This matter came before Court for judgment by default.
The applicant, Mrs J X Sibiya, was retrenched by the respondent, Interactive
Technologies (Pty) Limited, in August 1997 in terms of a letter dated 13 August
1997 (attached as ANNEXURE C to the papers), stating the following:
"Dear Judith
We have just been advised by Shoprite Checkers that they are taking the customer
care department inhouse and terminating their services with us. I am afraid that as
a result of this I have to retrench a number of people and we have accordingly
decided to reduce staff in the Johannesburg office. I am sorry to advise that your
services are therefore terminated with immediate effect. You will be paid your
full salary for this month August 1997 and we will pay you your full salary of the
end of September as well. We will obviously pay any outstanding leave due to
you at the end of September 1997. Thank you for all your hard work, loyalty and
dedication which you have given to ATC and we wish you all the best for the
future."
The applicant was in the employ of the company since June 1995. The applicant
testified that absolutely no proceedings or consultations preceded the retrenchment
letter dated 13 August 1997 (above). She was just given the letter and then had to
leave the premises of the company.
Clearly the dismissal was procedurally unfair as none of the procedures prescribed
by sec 189 of the Act were followed.
At the date of her dismissal the applicant earned an amount of R2 756,00 per
month (as it appears from ANNEXURE A to the papers).
The applicant referred the dismissal dispute to the CCMA already in August 1997.
The conciliation hearing was held and the outcome of the dispute referred to
conciliation (at ANNEXURE F to the papers) states that the dispute remained
unresolved as at 16 September 1997.
The applicant then made arrangements to obtain legal assistance at the end of
December 1997 and this was granted. The applicant's representative thereafter
proceeded with the matter to the Labour Court. The applicant’s legal
representative stated from the bar that he only managed to secure a case number
(after requesting at the beginning of January 1998) in May 1998. The papers were
then filed with the Court in July 1998. In my view, none of the above constituted
serious delays that can legitimately be held against the applicant in exercising my
discretion in regard to compensation in terms of section 194(1) of the Labour
Relations Act, 66 of 1995 (“the Act”).
The applicant claims compensation on the basis of the procedurally unfair
dismissal and in this regard I quote from section 194(1)of the Act:
"If a dismissal is unfair only because the employer did not follow a fair procedure
the compensation must be equal to the remuneration that the employee would have
been paid between the date of dismissal and the last day of the hearing of the
arbitration or adjudication, as the case may be, calculated at the employee’s rate of
remuneration on the date of dismissal. Compensation may however not be
awarded in respect of any unreasonable period of delay that was caused by the
employee in initiating or prosecuting a claim".
As pointed out above, there is no such unreasonable period of delay in the present
matter.
It is also clear from the provisions of section 194(2) of the Act that compensation
awarded to an employee must be capped to an equivalent of 12 months’
remuneration calculated at the employee’s rate of remuneration on the date of
dismissal. This is namely the maximum amount of compensation to be awarded
where the dismissal is also substantively unfair.
It would, in my view, be anomalous if an employee can claim more in the case a
dismissal which is only procedurally unfair than in a case where the dismissal is
both procedurally and substantively unfair.
Accordingly, the compensation (also in regard to procedural unfairness) should be
capped at an amount of 12 months’ remuneration calculated at the employee’s rate
of remuneration on the date of the dismissal.
In the event I make the following order:
1. The retrenchment of the applicant by the respondent on 13 August 1997 was
procedurally unfair.
2. I award the (applicant) compensation in terms of section 194(1) of the Act, to the
amount of R2 756,00 times 12, that is, a total amount of R33 072,00. No order is
made as to costs.
____________________
BASSON J