IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case Number: J1178/98
In the matter between
First Applicant
Second Applicant
Third Applicant
Fourth Applicant
Fifth Applicant
Sixth Applicant
Seventh Applicant
Eighth Applicant
and
Blyvooruitzicht Gold Mining Company Ltd Respondent
JUDGMENT
de VILLIERS A J
[1] This is a referral in terms of section 191(5)(b) of the Labour Relations
Act 66 of 1995 (“the Act”) for the reinstatement of the eight
Applicants in their employment with the Respondent following the
termination of their employment contracts on 22 January 1998.
PRELIMINARY I SSUES
Joinder of Applicants Five to Eight
[2] The original Statement of Claim reflects the names of the first four
Applicants only. The Certificates of Outcome of Dispute Referred for
Conciliation reflect the names of the First Applicant (under Reference
Number GA27810), the Fourth Applicant “and two others” (under
Reference Number GA 26670), the Sixth Applicant “and two others”
(under Reference Number GA26906) and the Seventh Applicant
“and two others” (under Reference Number GA27350).
[3] In chambers prior to the commencement of the proceedings, the First
Applicant advised that the Applicants had intended to add the names
of the Fifth to Eighth Applicants to the list which appears on the
Statement of Claim, but that the Court registrar had advised that this
was not necessary and that they could add the other names when
the matter came to trial. The First Applicant also advised that the
“others” referred to on the Certificates of Outcome were applicable to
the Second, Third, Fifth and Eighth Applicants. In Court it was
confirmed that the Second Applicant was one of the “others” referred
to on the Seventh Applicant’s certificate, that the Third and Fifth
Applicants were the “two others” referred to on the Sixth Applicant’s
certificate and that the Eighth Applicant was the “other” referred to on
the Fourth Applicant’s certificate.
[4] Because the Respondent did not object to the joinder of the Fifth, Sixth,
Seventh and Eighth Applicants and because I am satisfied that all of
their rights to relief depend on the determination of substantially the
same question of law and facts and that they all have a substantial
interest in the subject matter of these proceedings, I ordered that
Applicants Five, Six, Seven and Eight be joined as parties in these
proceedings in terms of Rule 22(2)(a).
Correction of Citation of Respondent
[5] According to the Statement of Claim, the Respondent is cited as D V
Steyn. However, all further documentation relative to this dispute,
including the Certificates of Outcome, cite the Respondent as
Blyvooruitzicht Gold Mining Company Limited. In chambers it was
agreed that the Applicants’ employer at the date of termination of
their contracts of employment and the intended Respondent was the
Blyvooruitzicht Gold Mining Company Limited and that the Applicants
had erroneously cited that company’s General Manager as the
Respondent. Therefore, in terms of Rule 22(4) and (5) I ordered that
the Blyvooruitzicht Gold Mining Company Limited be substituted, and
be correctly reflected, as Respondent in these proceedings.
Jurisdiction
[6] The Applicants, in their Statement of Case and during the course of the
proceedings, alleged that the Respondent had breached Clause 8 of
the Retrenchment Agreement between Respondent and the National
Union of Mineworkers (“the union”) dated 10 December 1997, in that
the employer had outsourced their jobs to another contractor when
that clause prohibits this. The minute of the pretrial meeting also
cites the outsourcing of their jobs as a separate issue for
determination.
[7] The agreement referred to by the Applicants is a collective agreement
(as defined in the Act) which does not provide for a procedure for a
dispute about its breach (regarded as a dispute pertaining to its
interpretation and application) to be resolved through conciliation and
arbitration. Thus, jurisdiction for the determination of this dispute lies
with the Commission for Conciliation, Mediation and Arbitration (“the
CCMA”) in terms of section 24 of the Act, which requires the dispute
first to be referred for conciliation and then, if unresolved, for
arbitration.
[8] I therefore found that this Court does not have jurisdiction to adjudicate
this dispute and hence stayed the proceedings with regard to this
aspect of the Applicants’ claim and hereby refer this dispute to
arbitration by the CCMA in terms of section 158(2)(a) of the Act.
Application for Absolution from the Instance
[9] The Respondent placed the onus for establishing the existence of a
dismissal as defined in the Act on the Applicants, who began by
leading evidence. At the close of the Applicants’ case the
Respondent applied for an order for absolution from the instance.
What it asked was for the Court to find that the Applicants had failed
to prove, on a balance of probabilities, on the evidence then before
the Court, that there had been a dismissal in terms of s186 of the
Act.
[10] For the reasons given by my brother Landman J in Schmahmann v
Concept Communications [1997] 8 BLLR 1092 (LC) I am satisfied
that this Court is competent to consider an order of absolution from
the instance. At the hearing I dismissed the application and now
furnish my reasons.
[11] The Respondent contended that it never contemplated retrenching
the Applicants. What it contemplated was outsourcing the security
function and offering the Applicants alternative work underground.
The representative union had agreed to this and persuaded the
Respondent to offer voluntary retrenchment as an alternative to
deployment underground. It contended further that the Applicants’
failure or refusal to explore the possibility of continuing in
employment in alternative positions underground, their request to be
retrenched, and their acceptance of the package indicated that they
had elected to terminate the contract of employment.
[12] At the end of the Applicants’ case, the only evidence before me was
the evidence of the Applicants’ three witnesses and the letters from
the Respondent terminating their services. The bundle of documents
prepared by the parties had not been admitted into evidence nor had
any evidence been adduced in support of the Respondents’
contentions.
[13] What emerged from the three witnesses’ testimony was the
following:
13.1. They were summoned to a meeting on 14 January 1998 attended by
two management and two union representatives (all the Applicants
were members of the union at the time and conceded that the union
was their bargaining agent).
13.2. They were advised that their positions as security guards were to
become redundant.
13.3. They were told that they were to be given a choice either they could
accept an alternative position working underground or they could
take the agreed retrenchment package and leave the employ of the
Respondent.
13.4. When they asked the company representatives why they were being
retrenched, they were told that management had made the decision.
They then requested the general manager of the mine to address
them.
13.5. They declined management’s offer of individual interviews regarding
the alternative of working underground for various reasons.
13.6. They were then asked to choose between a package and the
alternative of working underground, by way of secret ballot. When
the meeting with the general manager failed to materialize, they
chose the package in the belief that they could continue their
“struggle” against the retrenchment afterwards.
13.7. They were then given letters in which the Respondent terminated
their services on 30 days notice.
13.8 All three witnesses denied that they had agreed to the retrenchment
or that they had mandated the union to agree on their behalf.
[1] The Respondent based its application for absolution on two legs.
[2] Firstly, it asked the Court to infer from the testimony and the conduct of
the Applicants that they had agreed to termination of their services
because:
15.1. they had taken the packages;
15.2. they were aware of the Respondent’s contentions that there was a
representation made by the union to the Respondent that they had
agreed (through the union) to voluntary retrenchment (from the
Respondent’s response to their Statement of Case) and had failed to
call a union representative as a witness to prove that there was no
agreement between the Respondent and the union;
15.3. until these proceedings, they had not alerted the Respondent to the
possibility that their representatives had acted without a mandate.
[3] Secondly, the Applicants, by refusing to attend interviews where the
details of alternative employment would be more fully canvassed
had, in effect, unreasonably failed to consider the Respondent’s offer
of alternative employment and had therefore, in effect, repudiated
their contracts of employment.
[4] The test for granting absolution is set out in Harms, Civil Procedure in
the Supreme Court paragraph O2, at p.417, as follows:
“The test to be applied by the court at this stage of the trial is: Is there evidence
upon which a reasonable man might find for the plaintiff? Another approach is to
inquire whether the plaintiff has made out a prima facie case. The application is
akin to and stands on very much the same footing as an application for the
discharge of an accused at the end of the state case in a criminal trial.
The court has the discretion to grant or refuse absolution from the instance. In the
exercise of this discretion it will not normally have regard to the credibility of
witnesses unless the plaintiff’s witnesses are so obviously lying or have so
palpably broken down that no reasonable man can place reliance upon them.
The court may also have regard to the possibility that the plaintiff’s case may be
strengthened by evidence emerging in the defendant’s case.”
[5] The prima facie case which Applicants had to make out in order to avoid
an order for absolution was whether the Respondent had terminated
their services.
[6] At the end of the Applicants’ case there was no evidence before the
Court as to whether, in fact, the union had represented to
management that the Applicants had accepted a voluntary
termination. At that stage it was a mere allegation made in the
Respondent’s papers and put to the witnesses as the Respondent’s
version. I also could not draw any adverse inference from their
failure to lead a union witness to testify. In order to draw an adverse
inference I would have to find that the only reason why the
Applicants failed to call union witnesses to testify was because they
would give evidence detrimental to their case (See The South
African Law of Evidence , 4th edition, pp. 604605, and the authorities
cited there).
[7] From the evidence of all three witnesses it is clear that the union has
abandoned them all three testified and corroborated each other’s
version as to the unsuccessful efforts which had been made in
getting the union to assist them. I have no reason to doubt their
testimony that they did all that they could to get the union to assist
them. The absence of union officials either as witnesses or as
representatives in these proceedings is not through want of trying
on their part.
[8] At the end of the Applicants’ case there was also insufficient evidence
before me to enable me to conclude necessarily that by taking the
package they had in fact agreed to the termination of employment or
waived their rights in any way (See Decision Surveys International
v Dhlamini and Others , Unreported Decision of the Labour Appeal
Court, Case Number JA3/98). There was also no evidence regarding
the reasonableness or otherwise of the offer of alternative
employment from which I could conclude that their refusal to explore
the offer was unreasonable.
[9] Finally, the wording of the Respondent’s letter to the Applicants
terminating their services clearly states that it is the Respondent who
is terminating the contract. Evidence as to the context in which this
letter was sent was only adduced after the Applicants had led their
evidence.
[10] Therefore, on the evidence before the Court at the end of the
Applicants’ case I believed that a reasonable person might have
found that the Applicants had established a prima facie case that the
Respondent had terminated the contracts of employment and thus
that there was a dismissal as defined in s186(a) of the Act.
[11] The Respondent’s application for absolution from the instance was
therefore dismissed.
DETERMINATION OF THE DISPUTE
[12] In order to determine the dispute, two issues have to be addressed:
• Were the Applicants dismissed?
Was the dismissal fair?
Were the Applicants dismissed?
[13] The dispute relates to the termination of the Applicants’ contracts of
employment as security guards on 22 January 1998 following an
agreement between the Respondent and the union regarding the
restructuring of the security function on the Respondent’s mine.
[14] The Applicants allege that they were unfairly “evicted from their
jobs”.
[15] The Respondent alleges that:
28.1 It consulted and reached agreement with the Applicants’ union, duly
recognized as the bargaining agent of the Applicants, that:
(a) the entire security function should be outsourced;
(b) the Applicants would be offered alternative positions underground;
(c) those Applicants who did not want to avail themselves of the offer to
work underground could take voluntary retrenchment by accepting
the agreed package;
28.2 The Applicants did not avail themselves of the opportunity to explore
the possible alternative positions and elected to take the packages.
[16] The Respondent thus denies that it terminated the contracts of
employment of the Applicants and places the onus on the Applicants
to establish the existence of a dismissal as defined in s186.
[17] The following facts are not in dispute:
30.1 At all material times, the Applicants were members of the union and
it was their bargaining agent.
30.2 The Applicants attended a meeting on 14 January 1998 with the
Respondent’s two representatives and two union representatives at
which their manager advised them that the entire security
department was to be restructured and the security function
outsourced to Goldfields Security, an independent contractor.
30.3 At that meeting the Applicants were told that the Respondent wanted
to give each of them alternative employment underground on the
mine.
30.4 Those who did not want alternative employment could take, as an
alternative, the retrenchment package agreed to between the
Respondent and the union.
30.5 The Applicants were told that each employee would be interviewed
separately to advise management as to what they wanted to do.
30.6 All security personnel (approximately 50), including the Applicants,
took the agreed package and were paid their provident fund benefits.
30.7 On 22 January 1998 the Applicants received letters confirming the
termination of their contracts of employment with immediate effect.
[1] The Applicants contend, and the evidence of their three witnesses
corroborates their version, that they made it clear to the
Respondent’s representatives at the meeting on 14 January 1998
that they wanted to meet the Respondent’s General Manager before
making any decisions regarding the alternative or the package. They
took the package and accepted the letters terminating their services
in the belief that they could fight their dismissal after the meeting with
the General Manager failed to materialize. They argued that at no
stage did they voluntarily agree to terminate their services with the
company, either directly or through their union representatives. Their
evidence, when cross examined as to why they did not consider the
offer of alternative employment, was that, before exercising the
option, they wanted to know why they were being “removed” from
employment and that they were too old, too sick or too scared
(having been involved in disciplining other staff members who work
underground) to consider the alternative.
[2] According to Raymond Lubhedze, the only witness for the Respondent
who attended the meeting on 14 January 1998, the Applicants did
indeed ask to see the General Manager but, after a caucus, their
representative at the meeting, the First Applicant, advised the
Respondent’s representatives that:
• they wanted to be retrenched like everyone else had been;
• they wanted the word “voluntary” deleted from the forms (on which
they were to indicate their preference vis á vis alternative
employment or the acceptance of the package);
• they wanted their provident fund payout ready on the day they got
their “retrenchment envelopes” (the Court understood this to mean
the letters terminating their employment);
• they wanted to leave as soon as possible.
[3] The Respondent’s chief personnel officer, Gabriel Maluke, the author of
the document dated 15 January 1998 (the contents of which
corroborate the Respondent’s version) confirmed that this is what he
had been told by the Respondent’s two representatives and the two
union representatives who had attended the meeting.
[4] The Respondent’s Human Resources Manager, Willem Boshoff,
confirmed the minutes of a meeting between himself and the branch
committee of the union (which included the two union
representatives who had signed the document dated 15 January
1998) at which the union officials had advised that the security
personnel would “like to have their packages as soon as possible”
and that they would like to fetch their provident fund benefits. (The
First Applicant confirmed that he had gone to the union’s offices with
the Respondent’s representatives to arrange for the prompt payment
of the provident fund monies prior to the date on which they left the
services of the Respondent).
[5] Boshoff also testified that it was not the intention of the Respondent, at
the time the proposal to outsource their positions was made, that the
Applicants’ contracts of employment would be terminated. He
testified that during a meeting with the union on 5 January 1998 the
union agreed that the positions could be outsourced and that the
affected employees should be interviewed to explore the possibility
of their being suitable for alternative employment underground. The
option of allowing the Applicants to take the package instead was a
request made by the union and agreed to by the company (a)
because a number of employees had previously requested voluntary
retrenchment and (b) as a quid pro quo for agreeing to the
outsourcing of the security function, since the agreement between
the union and the Respondent, dated 10 December 1998, at Clause
8 prohibits this.
[6] The critical question for decision is whether the Applicants have
adduced sufficient evidence to persuade the Court that the
Respondent, in the words of Landman AJ (as he then was) in
Schmahmann v Concept Communications Natal (Pty) Ltd
(supra) effected or caused the termination of the employees’
services or whether the Applicants and/or their recognized
bargaining agent were responsible for the termination.
[7] I am satisfied, on a balance of probabilities, that the Respondent and
the union agreed that the work done by the Applicants should be
outsourced and thus that the Applicants are bound by that decision.
The evidence of Boshoff and Maluke, who attended the meeting on 5
January 1998, confirms the agreement. I also accept that, at that
stage, the Respondent did not contemplate dismissing the
Applicants. Boshoff testified that the Respondent wanted to explore
the possibility of providing the security personnel with alternative
positions but did not take the matter further when the security staff
elected to take the package. He testified that he was, in fact,
surprised when the security staff rejected the option of further
alternative employment in favour of taking the package.
[8] I also agree with the Respondent that the Applicants’ version that the
meeting on 14 January 1998 went no further than their demand to
see the General Manager and that they at no stage indicated, either
directly or through their agent, the union, that they were willing to
accept the package and leave their employment when weighed
against the totality of the evidence is improbable. The evidence of
Lubhedze as to what transpired at the meeting on 14 January 1998,
coupled with the evidence of Maluke and the document dated 15
January 1998, persuades me towards acceptance of the
Respondent’s version that the Applicants rejected the offer of
exploring the possibility of being deployed to work underground and
indicated a willingness to have their services terminated on certain
conditions.
[9] Where the Respondent and I part company is in its contention that by
failing to explore the Respondent’s offer of alternative employment
and by electing to take the package, the Applicants were responsible
either for repudiating their contracts of employment or agreeing to
the termination of their contracts of employment.
[10] On the Respondent’s own version, including the documents which it
produced at the hearing, the security personnel were clearly not
happy about their positions becoming redundant. From the evidence
of Lubhedze and the minutes of the meeting on 14 January it is also
clear that they refused to volunteer for retrenchment. The
memorandum typed by Maluke and confirmed by the signatures of
the two union officials does not show that the Applicants or their
officials agreed to their contracts coming to an end. It merely
confirms that they “wanted to be retrenched like all the other people
who have been retrenched on the mine”. Boshoff’s evidence, and the
document which it supported the minutes of the meeting between
himself and the union’s branch committee on 21 January 1998 also
does not show, as the Respondent suggested in its closing
statement, that the Applicants had volunteered to end their contracts
of service. All that evidence proves is that they wanted the packages
and pension fund payouts as soon as possible and wanted to leave
as soon as they could.
[11] The evidence, taken as a whole, leads me to the conclusion that:
41.1 The Respondent offered voluntary retrenchment to the Applicants as
an alternative to their exploring the possibility of working
underground.
41.2 The Applicants refused to take voluntary retrenchment, for whatever
reason (Lubhedze suggested that it may have been because they
did not want to hinder their chances of future reemployment) and
stated that they wanted to be in the same position as all other
employees who had been retrenched by the Respondent.
[12] In other words, they were making a counteroffer to the Respondent
the content of which was that they were not interested in working
underground or volunteering to be retrenched but that they would
accept the termination of their services by their employer on
condition that they received the agreed severance package and their
provident fund benefits and could leave as soon as possible. Their
representatives confirmed this to Maluke. The Respondent then
accepted the offer and terminated their contracts as per the letter
dated 22 January 1998. Hence, the Respondent effected the
termination of the contracts.
[13] The Respondent argued that the Applicants had unreasonably
refused to explore possibilities for redeployment, and thus had
repudiated their contracts of employment as per Van Zyl AM in
Thubane v Hendlers Industrial Carriers [1997] 2 BLLR 131 (IC),
where the industrial court found that if a redundant employee refuses
to accept a reasonable (my emphasis) alternative post, he is
deemed to have repudiated his contract of employment and is
therefore not dismissed.
[14] There is insufficient evidence regarding the unreasonableness of the
Applicants’ refusal or the reasonableness of the alternative post for
me to make a finding in this regard. The reasons given by the
Applicants for their refusal to consider employment underground
appear, prima facie, to be reasonable. Lubhedze’s evidence also
suggests that the options were given in fairly stark terms either you
agree to work underground or you take a package. Although the
intention of the Respondent may have been to explore possibilities
for redeployment in the proposed oneonone interviews, this does
not appear to have been fully explained to the Applicants. As far as
they were concerned it was an either/or decision which they were
being called upon to make. Liking neither, and possibly fearing that
they would be deprived of whatever benefits might flow from a
retrenchment at the instance of the Respondent if they agreed to
voluntary retrenchment, they asked for the employer to terminate
their services and to give them the severance package agreed to by
their union. The Respondent then complied with their request, paid
them the package and terminated their services on 22 January 1998.
[15] The Respondent suggested that the mere acceptance by the
Applicants of their retrenchment packages was an indication that
there was an agreement in respect of that retrenchment. The Labour
Appeal Court has made it clear that acceptance by employees of
retrenchment packages does not necessarily indicate a waiver of
rights. In Decision Surveys International (Pty) Ltd v J Dlamini &
Others, supra , the LAC held that the evidence of the employee that
he had not intended to abandon his rights by signing an acceptance
letter, if unchallenged, was sufficient proof that he had not
abandoned his right. I am of the opinion that the principle applies
equally to the present case. The Applicants’ acceptance of the
package must be weighed against their explicit denial, Lubedze’s
evidence and the Respondent’s minutes, all of which suggest that
they did not volunteer to have their contracts of employment
terminated.
[16] I therefore find that the existence of a dismissal as defined in s186(a)
has been established in that the Respondent terminated the
Applicants’ contracts of employment.
Was the dismissal fair?
[17] At the end of the hearing of evidence I asked the parties whether, in
the event of my finding that a dismissal had taken place, either party
would wish to place any further evidence before me in order for me
to make a determination as to whether the reason for the dismissal
was a fair reason and whether it was effected in accordance with a
fair procedure. Both parties agreed that no further evidence would
be forthcoming and that I could make this decision based on the
evidence before me.
[18] It is clear from the evidence that the reason for the dismissal was
based on the operational requirements of the Respondent. In order
to determine the fairness of such a dismissal the Court must
determine (a) whether there was, in fact, an economic, technological,
structural or similar need which led to the termination and (b)
whether the provisions of s189 had been complied with prior to
termination.
[19] Boshoff testified that the Respondent was in the process of a major
restructuring and downscaling exercise and had reached agreement
with the Applicants’ union on the need to downscale operations and
to restructure certain functions and that it had negotiated a
retrenchment agreement with the union in respect of those of its
members who would be affected by the retrenchments.
[20] Because of the closure of vast sections of the plant, a number of
security positions had became “factually redundant”. In addition, the
Respondent wanted to update the security around the metallurgical
department with the introduction of hitech surveillance equipment
together with a more “C.I.D.” approach. Instead of doing this on a
piecemeal basis, the Respondent wanted to outsource the entire
security function to the contractors who were already engaged in
security operations on the mine.
[21] At a meeting with the union on 5 January 1998 the issue was
deliberated at length, according to Boshoff, and finally, after a
caucus, the union agreed that the security personnel could be re
deployed but that, because some personnel had already requested
voluntary retrenchment, all security personnel should be given the
opportunity to apply for voluntary retrenchment as an alternative. It
was further agreed that personnel should be interviewed individually
to assess their capability relative to the redeployment and that the
entire process would be monitored in accordance with the terms of
the retrenchment agreement.
[22] Acting on feedback from the union (as per the meetings on 14 and
21 January 1998 which I have dealt with above), the Respondent
paid all security personnel the agreed package and issued letters
terminating their services
[23] Maluke confirmed the essence of the decisions taken at the meeting
on 5 January 1998 and the content of the document dated 15
January 1998, in which the union confirmed that the security
personnel wanted to be retrenched.
[24] The Applicants, who agreed in response to questions put to them in
the pretrial conference and at the hearing that they were members
of the union and that the union was their representative at the time,
are bound by the agreements between the Respondent and the
union and to the representations made on their behalf by the union to
the Respondent, even if they did not give a specific mandate to the
union, both in terms of the ordinary rules of agency and in terms of
the principles of collective bargaining and majoritarianism. As
Grogan ( Workplace Law , 3rd ed., 1998, at p.203) points out:
“The basis for a union’s authority to conclude agreements to which some of its
members might object is the principle of ‘majoritarianism’. In other words, a union
does not require a specific mandate each time it decides to act on its members’
behalf, and the employer, consequently, does not have a right independently to
inquire into whether a union has a mandate on each occasion it deals with the
union.”
[14] In addition, the Courts have made it clear that the very principle of
majoritarianism implies that a union may take decisions which are
against the direct interest of a minority. In Ramolesane & Another v
Andres Mentis & Another (1991) 12 ILJ 329 (LAC), at 336A, Van
Schalkwyk J said the following:
“By definition, a majority is, albeit in a benevolent sense, oppressive of a minority.
In those circumstances, therefore, there will inevitably be groups of people,
perhaps even fairly large groups of people, who will contend, with justification,
that a settlement was against their interests. None the less, because of the
principle of majoritarianism, such decision must be enforceable against them
also.”
[15] The only evidence which suggests that the Respondent knew, or
ought to have known, that the union was acting contrary to the
mandate given by the Applicants was the Applicants’ version as to
what occurred at the meeting on 14 January 1998, namely that the
meeting went no further than their requesting to meet with the
General Manager. If this were so, then perhaps the Respondent
could not have relied on the representation made by the union in the
document dated 15 January 1998 because it would have known that
that was not what the Applicants, or indeed the majority of the
security guards affected by the decision, wanted. Its subsequent
action in terminating the contract might then have been suspect and
the Applicants may have been justified in claiming that the
termination was unfair.
[16] But I have already rejected the Applicants’ version on this point for
reasons set out above and there is no other evidence before the
Court which indicates that, prior to the termination of their
employment, the Applicants advised the Respondent, either directly
or indirectly, that the union did not have a mandate to make
agreements with or representations to the Respondent on their
behalf even though they were aware that their employment with the
Respondent was to be terminated. It was only after their services
had been terminated that they took steps to complain directly to the
Respondent. When the Respondent terminated the Applicants’
contracts on 22 January 1998 it was acting on a representation
made by the union (in the document dated 15 January 1998 and at
the meeting on 21 January 1998) upon which it was entitled to rely.
(See, for example, Ramolesane & Another v Andres Mentis &
Another, supra, and generally on agency see Visser and Potgieter
Estoppel: Cases and Materials , 1994 chapter 6 pp. 286 300 but
particularly at p. 290 where the authors cite Silke on Agency 438 as
follows:
“Any person who by words or conduct represents (or permits to be represented)
that another person professing to bind him has authority to do so, is bound by the
acts of the latter to any person to whom the profession is made and who so acts
on the faith of that representation as to prejudice him in the event of such
authority being subsequently denied; provided that the representation, whether by
words or conduct, was of such a nature that it could reasonably have been
expected to mislead.”
[17] I am satisfied that what took place at the meeting between the union
and the Respondent on 5 January 1998 complies with the provisions
of s189 of the Act which requires an employer to consult with,
amongst others, “any registered trade union whose members are
likely to be affected by the proposed dismissal”.
[18] Having made out a case for outsourcing the Applicants’ positions,
which was based on a real need (to secure the metallurgical plant
more effectively), and which was accepted by the union, the parties
(the union and the Respondent) deliberated upon viable alternatives
and reached agreement on what should be done. When the
Applicants rejected the alternatives and requested to be retrenched,
which request was conveyed to the Respondent by its own
employees and confirmed by the union, the Respondent complied
with this request, terminated the Applicants’ and the other security
guards’ services and paid the severance benefit agreed to between it
and the union, thus complying with s189(2)(c).
[19] If the Applicants believe that the union misrepresented their position,
or did not have a mandate to speak on their behalf, their claim for
any loss suffered as a result lies against the union. The Respondent
was entitled to rely on the representations made by the union and to
act on them by virtue of the recognition agreement between itself
and the union and the Applicants’ membership of the union at the
time.
[20] The Applicants tendered documentary evidence, which was not
disputed by the Respondent, that the Respondent had settled a
similar dispute between itself and two other employees by agreeing
to send a “reference introductory letter” to the security contractors to
whom the Applicants’ positions were outsourced. The Applicants
tendered this evidence in the belief that the Respondent had re
employed the two employees (thus calling into question whether
there was a need to retrench). However, it is clear from the
document and from the evidence of Boshoff that the dispute with
these two employees was settled on the basis that the Respondent
would merely introduce them to the contractors who could then
employ them if they so wished. I am therefore not sure what
relevance this evidence has to the Applicants’ case. In any event, all
but one of the Applicants are already employed by the contractors.
[21] I therefore find that the reason for the dismissal was a fair reason
based on the Respondent’s operational requirements and that it was
effected in accordance with a fair procedure.
[22] The application is therefore dismissed. There is no order as to costs.
I de VILLIERS A J
Acting Judge of the Labour Court
DATE OF HEARING: 09 12 March 1999
DATE OF JUDGMENT: 28 April 1999
For the Applicants: In person
For the Respondent: Mr Pretorius of Neil Pretorius Attorney