VIC & DUP/JOHANNESBURG/LKS
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
DATE: 31 AUGUSTUS 1999 CASE NO. J612/98
In the matter between:
S MATLAKALA AND OTHERS Applicants
and
PLASTWRAP (PTY) LTD Respondent
J U D G M E N T
BRASSEY, AJ:
[1] In this matter the first applicant applied on
behalf of the second, third, fourth and fifth
applicants for an order for the reinstatement of the
second to fifth applicants in their employment,
alternatively, for compensation, alternatively for
both.
[2] At the hearing of this matter the applicant's
legal representative, Mr Zibi, notified me that he was
not
proceeding with the application on behalf of the third
applicant. Accordingly, it is the first, second, fourth
and fifth applicants that are properly before this
court.
[3] The application arises out of the retrenchment of
the second, third, fourth and fifth applicants (who I
shall henceforth when necessary refer to as "the
individual applicants" ), on 19 December 1997. The basis
on which they were retrenched, so says the company, was
that they were redundant, i.e. that there was no longer
work for them to do. The applicants contend that the
retrenchment was unfair and seek the relief that I have
referred to.
[4] Most of the facts pertaining to this case were
common cause. In so far as there is any dispute in
relation to them I will indicate which of the versions
I prefer.
[5] The company carries on business as a manufacturer
in the plastics industry. It employs some 68 people,
the number including its administrative staff. It runs
both a day shift and a night shift and on the night
shift some 10 employees are employed, all of whom are
male. It is not the company's policy to employ females
on night shift.
[6] The union began recruiting amongst the employees
of the
company at some period prior to 1997 and in early 1997
had acquired a majority such as to entitle it to
recognition by the company. Shortly after it was
recognised, in August 1997, a dispute arose between the
company and the union when the company unilaterally
implemented short time. The reasons why the company did
this were briefly canvassed in evidence, as was the
standpoint of the union on the question. The dispute
itself is of no consequence to the present proceedings;
all that is necessary to note is that in August 1997,
and having regard to the downturn in business that the
company was experiencing, the company considered it
necessary to embark upon this programme of short time.
The programme, I should add, was shortlived, seemingly
enduring for little more than a week.
[7] After this event the company considered its
employment needs and on 21 November 1997 wrote a letter
to the union in which it notified it of its intention
to embark upon retrenchment. The letter is of some
consequence to these proceedings and I will cite the
salient portions in full:
"Notification of a perceived need to implement
retrenchments.
The company is overstaffed in the packing department
and in terms of sound business practice, the company
wishes to retrench four
employees on 19 December 1997.The company has
considered other alternatives, i.e. short term and
redeployment but these are not considered
feasible.It is intended to select these employees to be
retrenched on a Lifo basis among the day shift packing
department. It is intended to pay a retrenchment
package in accordance with the main agreement. We will
consider any proposals with regard to employees who may
be affected. Accordingly, in terms of section 35 of the
main agreement of the National Bargaining Council for
the Iron, Steel, Engineering and Metallurgical
Industry, notification is provided of this company's
intention to enter into a consultation process with
yourselves and your representatives concerning this. It
is requested that you meet with the representatives of
the company on Tuesday, 25 November 1997, at 12:30 or
on Wednesday, 26 November 1997, at 12:30 in order that
your views, thoughts and suggestions on the possible
retrenchments be ascertained and a process of
consultation take place.Please contact the writer in
writing as soon as possible to confirm either of these
dates."
[8] The proposed dates were unsuitable to the union
and it proposed a meeting on Tuesday, 2 December 1997
or Wednesday, 3 December 1997, the latter meeting to be
at 09:00. The latter date was acceptable to the company
and the meeting was held. Present at the meeting were
Mr Zaiden, who is the accountant of the company and the
person charged with the management of its industrial
relations, and Mr L Steenkamp. From the union's side
Alfred Motana, the union organiser within whose
province the company fell, was present, as were two
shop stewards from the company listed in the minutes of
the meeting as Princess and Robert. The minutes are
somewhat cryptic but give, none the less, a fair
reflection of what happened at the meeting.
[9] At the outset the company explained its reasons
for the proposed retrenchment. It harkened back to a
meeting on 20 March 1997 in which the union had been
told of the need for possible retrenchments and
explained that the retrenchments now being effected
constituted a business decision on its part. The
company explained that, firstly, two persons were doing
one person's job on some machines and, secondly, that
some machines were staffed by an operator who was also
able to do the packing, thereby making the packer
assigned to that machine redundant. It was also
explained by Mr Steenkamp that the company had been
living with, as he
put it, this problem but was no longer willing to do so
and could find no basis upon which it might redeploy
the staff members sought to be retrenched since there
were no vacancies within the company. Short time, he
explained, had been tried but had proved not to be
feasible.
[10] The union's response was to ask for a list of the
departments within the factory, which it was orally
given, and a printout of all the employees per
department showing the department in which the employee
was employed, the name of the employee, the date upon
which the employee had been employed and the position
that he or she occupied. That printout was made
available during the course of a caucus that commenced
at 09:20 and continued until 10:00.
[11] Following the caucus and a further caucus to
consider the list of employees, the union posed certain
questions to the company. The first was whether there
were any employees eligible for retirement, to which
the company responded that there were none. The second
was whether voluntary retrenchments were an option and
the company responded by saying that it would consider
such retrenchments provided that one skilled person
could be replaced by another skilled person. There was
then a discussion of the severance package that was
proposed by the company and a request by the union that
the company should be more generous than was stipulated
by the industry agreement. The company rejected this
suggestion and thereafter a discussion ensued about the
Provident Fund.
[12] The union then asked the company to consider last
in/first out as a selection criterion on a basis that
was not departmental but across the board. It motivated
that suggestion by explaining that some packers had
operated machines in the past and explained, when
asked, that they included a certain Hessie, Selena (who
is Selena Matlakala, the third applicant in this
matter), and Princess, who I take to have been the
shop steward present at the meeting.
[13] The company's response to that was that it would
be impossible to assign the packers to the task of bag
making because, in the words of Mr Zaiden, bagmakers
rotate shifts and it was not feasible to consider
ladies to work night shift. The latter statement was a
reiteration of a proposition that had earlier been made
in which Mr Steenkamp had explained that the workers
being selected for retrenchment were confined to the
day shift because females were involved and it was not
possible to take the night shift into account.
[14] In the course of his evidence the managing
director of the company, Mr Copans, explained the
problems the company would confront should it employ
women on night shift. They included the fact that there
might be, as
he put it, cohabitation between the males and the
females on a shift that was unsupervised and, secondly,
that the females' safety, presumably at the hands of
the males on the shift, could not be guaranteed. No
issue was made of the safety of the females coming on
and leaving the shift since in both cases their
travelling would be in daylight.
[15] In this meeting the point was also made that non
skilled workers on night shift were required to move
large rolls of material weighing some 59 kilograms. Mr
Copans explained in evidence that these rolls of
material were altogether too heavy for a woman to
handle.
[16] Further discussions ensued on the selection of
employees for retrenchment that are not germane to this
judgment and the meeting concluded with a request by
the union to consult with its constituency. That
request was agreed to and the union did so consult. In
consequence of the consultation and on 6 December 1997,
the union official in question, Mr Motana, wrote a
letter to the company in which it dealt with the
standpoint of the union on the question of
retrenchment. Since this letter is important I shall
recite its contents fully.
"Implementation of retrenchments
We refer to the above matter and wish to respond as
follows. The response is informed by your clarities
given on the meeting on the 3rd December 1997 and
consultation with our members.
First Option: Early retirement /voluntary
retrenchments
We believe employees should be identified for early
retirement or/and should be given an option to be
retrenched voluntarily. Motivation for the above should
be as follows:[and there is there a formula set out
under which voluntary retrenchment would be made
attractive.]
Second Option:
In case there are no employees for early retirement
and/or voluntary retrenchment, Lifo should apply.
Accordingly, Lifo is that it should be across the
board, not departmental as you stated. We are prepared
to deal with each and every affected employee by Lifo
in terms of skills and potential.This can be discussed
in more details. Each and every case or candidate will
be dealt with on its own merit.
Lastly:
We are further suggesting that given the timing of
the year and our availability, we won't be prepared to
deal with the matter. For that matter retrenchment of
any nature should not be implemented until the matter
has been amicably resolved. In case you implement,
prior to us discussing the matter, that in itself will
be taken as a unilateral decision. We will therefore
follow the relevant route in terms of the Act,
including interdicting the company. [Details were then
given as to the manner in which the union might be
contacted, and the letter continues as follows]
We further believe you have nothing to lose to postpone
the matter until January 1998 since both negotiators
won't be available. [Then, inserted in manuscript is the
following:]”We further requesting that you supply us
with a financial statement for the past three year by
Friday, 12 December 1997.Your speedy response will be
highly appreciated."
[17] The company's response to this letter was given on
8 December 1997 by letter to the union that states as
follows:
"We respond thereto as follows:
First Option: Early retirement/voluntary retrenchments .
We clearly stated at our meeting on 3 December 1997
that the company had considered early retirement as a
criteria but that there are no employees who qualify
for early retirement. The company also stated that it
was prepared to consider voluntary retrenchments and
subject to the company approval of individuals to ensue
[it should be ensure, I imagine] retention of skills
and its operational requirements. The company also
stated that it would not consider an enhanced package
as a carrot.
Second Option: We stated at the meeting that we were
prepared to consider Lifo across the board provided
that it did not impact on the skills and suitability of
employees in other positions.Your proposal to retrench
a driver was discussed as the redeployment of three
packers as operators on bagging production. The company
believes that you were given a satisfactory explanation
why this is not feasible.
Lastly, the company has acted in accordance with the
main agreement of the National Bargaining Council for
the Iron and Steel Engineering and Metallurgical
Industry in giving your union timeous notification on
21 November 1997 about its intention to retrench
employees on 19 December 1997. We are of the
opinion
that we have in good faith consulted with
yourselves
and believe that your wishing to postpone further
discussions to 1998 is a delaying tactic. You have been
given ample opportunity to consult. At our meeting you
seemingly accepted the company's reasons for intended
retrenchments and we are further of the opinion that
your belated request for financial statements is
intended to lend credence to your proposal to postpone
consultations."
[18] I pause here to mention that the question of when
the
financial statements were first requested was a matter
of dispute in the evidence before me. The company's
evidence was to the effect that these statements had
first been requested in the letter of 6 December to
which I had referred. The union's evidence, given
through Mr Motana, was that the request was actually
made in the meeting of 3 December 1997. Ultimately, I
suspect that little, if anything, turns on the dispute.
But in so far as it may be germane I record that I
accept the evidence of the company on this question and
reject that of Mr Motana. The correspondence, it seems
to me, plainly indicates that the request was first
made on 6 December and first rejected on 8 December;
moreover, the tenor of the union's request is such that
it is proper to conclude that no earlier discussion of
the issue had been made; thirdly the company’s
response, in referring to the request as ‘belated’,
supports the conclusion; and finally there is nothing
in the minutes that bears out such a request. It seems
to me that Mr Motana is mistaken on this issue.
[19] As I say, I do not consider that much turns on
this dispute, since the financial statements were in
the circumstances irrelevant to the retrenchment then
being considered. The retrenchment was not the
consequence of economic adversity within the company
and Mr Bleazard, who appeared for the respondent, at no
stage suggested that it was. The retrenchment was the
consequence of redundancy, by which I mean that there
was no or insufficient work for the four workers to do.
That was the basis upon which the retrenchment was
placed in the meetings and it was the consistent thrust
of the evidence before me. Once that is accepted, it is
of no consequence what the financial position of the
company was at the time when it decided to lay these
four workers off. It was under no obligation to retain
the workers when it had no work for them to do, and was
entitled to retrench them so as to reduce its costs or
enhance its profits. Financial statements can be
relevant to a retrenchment but they generally are so
only in circumstances where the company, to put it
loosely, pleads poverty. Such are not the circumstances
of the present case.
[20] The letter of 8 December concluded by reiterating
that the company was available to consult with the
union up to 15 December 1997. The union, however, took
no steps either through its union official or through
the shop stewards within the company to pursue the
consultation. In consequence, on 18 December 1997 Mr
Zaiden wrote to the union stating that the company
intended to go forward with the retrenchments, and that
it duly did. It effected the retrenchments by a letter
of 18 December 1997 in which it set out the basis of
retrenchment; the circumstances in which the
retrenchment was occurring; and the circumstances under
which the employees might be reemployed.
[21] That letter, which was sent to each of the four
retrenchees,(speaks of a severance package in the
following terms) "A severance package (in the case of
Selena Selelo) in the form of seven weeks pay amounting
to R2 576,70 will be paid to you on your last day's
service with the company. This excludes your wages,
leave pay and bonus which will be paid to you on the
same date."
At the same time ,the applicants were invited to, and
did, complete a form in which they furnished their
personal details for the purposes of potential re
employment. The form reads as follows(and I take the
one applicable to the second applicant:)
"I, Selena Selelo, retrenched on the 19th December 1997
advise that the company may contact me during the next
24 months at the following address for the purposes of
ascertaining my availability for employment as a packer
or a lower related activity occupation should any
vacancies in these positions arise in the immediate
future."
[22] Subsequent to the retrenchment the company
employed one Zulu who was qualified as, and engaged as,
a printer. A dispute arose before me as to whether it
was possible for the individual applicants to do the
job of a printer. Mr Copans, in testifying on this
issue,
explained that the printer's job is a skilled one
requiring considerable expertise and knowledge of the
job's requisites. He said that he needed a printer; he
did not need somebody who could pass herself off as a
printer; and the individual applicants, given their
skills simply as packers, would not be suitable for the
job.The second applicant who testified before me said
that she would have been able to do the job of a
printer and indeed on occasion had actually operated
the printing machine. It seems to me that this is an
incomplete answer to the position adopted in the
evidence by Mr Copans. The mere ability to operate the
machine is not exhaustive of the requirements that a
company may have from a printer. The job of a printer
is considerably more complex than that. So much was
evident from the testimony of Mr Copans and so much, it
seems to me, it is proper for me to take judicial
notice of. In the circumstances I can find nothing in
the employment of Mr Zulu in the circumstances with
which to take exception.
[23] Even if I were satisfied that the individual
applicants were able to do the job as a printer, I
would not have concluded that the company acted
unfairly in employing Mr Zulu. There is, counsel before
me were agreed, no obligation imposed by the statute to
reemploy workers who have been retrenched when
vacancies arise for which
their reemployment might be appropriate. There may be
such an overriding obligation in equity but it is
unnecessary for me to consider that issue because, as
was accepted by Mr Zibi, the undertaking given by the
company to reemploy at the level of packing or below
was not unfair. It is plain that there was no
obligation to employ any of the individual applicants
as a printer since a printer's function is more skilled
than, and superior to, a packer’s.
[24] In the particulars of claim, which I shall refer
to in
more detail later, the trade union took a broad brush
approach to the fairness of the retrenchment. Before
the matter came to trial, however, the parties held a
pretrial conference which carefully narrowed and
delimited the issues and thereafter the issues were
further delimited in argument and became narrower yet.
[25] Aside from the issue of the employment of the
printer with which I have already dealt, the issues on
which the applicants pertinently relied before me
comprised two. The first was that notice should have
been given to the employees concerned of the dismissal
alternatively the intention to retrench. Mr Zibi
pointed out that they received no advance notification
of that sort, having simply been told on 19 December
that their services would no longer be required.
[26] As I say, the matter seems to have been argued in
the alternative either as a complaint of want of notice
in the contractual sense or of want of notice of the
fact of retrenchment. In so far as the complaint is of
want of contractual notice, it is by no means clear on
the evidence before me that such notice was not given.
The letter of 18 December given to each of the
retrenchees spoke of a severance package as a composite
amount and explained that certain items were not
included in the package, including such matters as
leave pay and bonus.
On the evidence before me it is impossible for me to
determine whether payment in lieu of contractual notice
was properly made and I can make no finding against the
company in this respect. In so far as such payment was
not made, I have little doubt that the company will
remedy the shortcoming.
[27] The more trenchant point raised by Mr Zibi was
whether the employees should have been notified in
advance of the fact of their retrenchment. Such
notification can be desirable but it seems to me that
it is always open to a company to make payment of such
amount as would otherwise be earned during the period
of notification
in lieu of allowing the employee to work the period
itself.
[28] In any event, I can see no obligation either in
law or in equity for notifying employees ahead of time
of the intention to retrench them. The duty under the
current Act is to notify the trade union of an
intention generally to retrench. Under the previous Act
there may have been some duty to consult not merely
with the recognised trade union but also with the
prospective retrenchees individually. That obligation
no longer exists it seems, when a trade union is being
consulted over the retrenchment; it seems it has
deliberately been dropped in recognition of the
important role that
the collective representative is expected to play in
the process of consultation. What the Act seems to
conceive is that the collective bargaining
representative should solicit the information
pertaining to the respective retrenchees from the
employer and then deal with them, directly and
timeously, in order to apprise them of what is
happening. In the present case the trade union did not
avail itself of the invitation to consult further with
the company on matters such as this. I do not by making
comment mean to suggest that the trade union was remiss
in not consulting further I am alive to the
obligations that typically burden a trade union
official but there seems no reason why the
consultations should not have proceeded through the
agency of the shop steward or shop stewards within the
enterprise. This was not done and in consequence
discussions that otherwise may have been fruitful went
by default.
[29] The next point made by the union was that options
should have been considered to avert retrenchment
going beyond those that the company in fact considered.
Those options included, said Mr Zibi, such matters as
the abolition of overtime and recourse to short time.
However, the correspondence makes it clear that the
options that the company was asked to consider by the
trade union were confined to voluntary retrenchment and
to early retirement. The company dealt with those
options in its response by explaining that early
retirement was impossible (since there was nobody
eligible for the purpose) and that voluntary
retrenchments had been considered and rejected. The
trade union did not pursue the other options that it
now seeks to rely upon before me, and in the
circumstances I cannot fault the company for the stance
that it adopted.
[30] I now turn to what I take to be the most
significant point in issue, and that is the question of
selection for retrenchment. I proceed to consider this
issue on the basis that the four packers were in fact
redundant. If one of the four packers were going to be
retained, therefore, it would have been necessary to
create a vacancy for her by dismissing another
employee. This process is commonly known as bumping.
[31] The company in its letter of 8 December made it
clear
that it was willing to embark upon such a process. It
stated, and the paragraph bears repeating, that
"we were prepared to consider Lifo across the board
provided that it did not impact on the skills and
suitability of employees in other positions" .Its stance
therefore was that it was willing to countenance
bumping and bumping across the board subject to
considerations of special skill and ability.
[32] Mr Bleazard argued that there could be no
obligation in law or equity to countenance bumping
across the board. To require such bumping, he said,
would place an intolerable burden on an employer,
forcing it to consider each prospective retrenchee for
every other job within the company. If that was indeed
the burden that bumping entailed, I would agree with Mr
Bleazard‘s conclusion but it seems to me that his
submission overstates the case. I take it that there
is, in relation to bumping, an obligation on the
prospective retrenchee to indicate, either directly or
through the
union, what positions he or she might be willing to
take and be suitable to fill. The issue of whether the
employee should be employed in the position can then be
made the subject of specific consideration in
deliberations between the parties. In the process the
employee's suitability for the job can be investigated;
his or her qualifications and aptitude can be
considered; and his or her ability to work in the
conditions that the job entails can be examined.
[33] Be that as it may, the company in fact accepted
the duty to consider bumping across the board. It
considered the proposals that had been made on 3
December 1997 and it rejected them. It invited further
proposals on the question of who else might be bumped
and no further proposals were forthcoming. In the
circumstances it seems to me that the duty to apply the
principle of bumping was satisfied.
[34] In evidence before me the question arose as to
whether one or other of the individual applicants
should not have been offered the job of a packer on the
night shift. Two people were identified by the union as
being packers’ the first was Abel Maboane and the
second was William Mota. Selena Matlakalala, the second
applicant, said that she had seen both of them
performing the task of packer when the night shift gave
way to the day
shift. She could not, however, testify to what
precisely was occurring during the night shift and the
only direct evidence I have of that is the evidence of
the managing director. He said that neither of the two
individuals was doing the work of packer during the
night shift.
[35] There are, its true, suggestions in the
documentation that they did perform this function. But
if one looks at the most recent and most relevant
employment list, i.e. the list that was printed on 3
December 1997, it is clear that William Mota was in
fact a bagmaker, and not a packer. Abel Maboane is
still recorded as a
packer, but Mr Copens, whose evidence on this point I
accept, says he was principally doing the work of a
common labourer, moving the heavy rolls to which I have
referred.
[36] Under proper circumstances the company might have
been obliged to dismiss Maboane and offer the job to
one or other of the individual applicants since he had
a shorter length of service than each of them. However,
the company was at no stage, either in the meeting or
subsequently in the correspondence, requested to take
this step. In the absence of such request, it seems to
me that the company cannot be faulted for declining to
dismiss Maboane and putting one or other of the
individual applicants in his place. In coming to this
conclusion I find it unnecessary for present purposes
to consider whether the applicants would have been
suitable for the job. To enter upon that question would
be to embark upon precisely the fallacious line of
reasoning that has previously been identified as the
"no difference rule". It would have been for the
company, had it been requested to consider such
bumping, to take reasonable steps to ascertain to what
extent one of the applicants could do Maboane’s job.
No such request was made.
[37] So far as the retrenchments are concerned that
concludes the matter. There is one further aspect,
however, that has taxed my mind and on which I feel I
should pronounce. That is the impact of the company’s
policy of refusing to appoint women on night shift.
Neither of the reasons given for this stance is
satisfactory. The company has neither the duty nor the
right to protect employees from the consequences of
their own immoral impulses. Its duty is to take
reasonable steps to prevent those impulses from causing
others hurt or harm. It must endeavour to prevent
sexual assault in precisely the way it must prevent
physical assault. In the discharge of this duty it has
no right to make distinctions between men and women
that unfairly prejudice either group, even though the
distinction might have some rational basis to it.Such
discrimination is now unlawful under the Constitution
and, closer to home, under the Labour Relations Act
itself. Women must be given at least the same
opportunity to do work as men and, however gallant it
may once have seemed, it is now antiquated to prevent
them from doing certain jobs in a paternalistic desire
to protect their interests and safety. It was,
therefore, incumbent on the company to consider women
for appointment to night shift no less favourably than
men. It is clear from the evidence that the company did
not do so.
[38] The findings I have made, however, indicate that
this element of the policy had no bearing on the
retrenchments. Those retrenchments would still have
occurred even if the company had not applied this
policy since they were the consequence of the workers'
failure to make clear their interest in doing the job
of Mr Matoane. The policy, therefore, bears no causal
relationship with the outcome of the process. It
operates, as it were, in the air.
[39] The policy could itself have been the subject of a
complaint under the Labour Relations Act I think
specifically of a complaint under schedule VII but
such a complaint was not mounted in that form before
me, nor was it mounted at any stage during the
proceedings. The reference to the Commission for
Conciliation, Mediation and Arbitration, which is a
precondition to the exercise by me of my jurisdiction,
contains no challenge to the discriminatory policy;
neither do the particulars of claim ;and neither does
the statement of issues that was so carefully and
comprehensively compiled in the pretrial conference.
[40] In the circumstances, and having regard to the
issues that have been ventilated before me, I can see
no basis on which to fault the retrenchments that were
carried
out by the company. The points of complaint that were
raised by the union in argument before me reveal no
acts of unfairness and in the circumstances I dismiss
the application. The company does not press for costs.
[41] Thus my order is:
(a)This application is dismissed.
(b)There shall be no order as to costs.
__________
BRASSEY, AJ
LABOUR COURT OF SOUTH AFRICA
ON BEHALF OF APPLICANTS : MR V ZIBI
Instructed b : SACCAWU
ON BEHALF OF RESPONDENTS : MR B BLEAZARD
Instructed by : Brian Bleazard Attorneys
DATE OF HEARING : 30,31 AUGUST 1999
DATE OF JUDGMENT : 31 AUGUST 1999