IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURGCASE NO
In the matter between
MICHAEL FLETCHER Applicant
and
ELNA SEWING MACHINE CENTRES (PTY) LTD
Respondent
JUDGMENT
JAMMY AJ
1.Mr Michael Fletcher, the Applicant in this matter, was
retrenched on 30 June 1998. At that time, he had served
the Respondent company for some 21 years and held the
position of National Sales Manager. He contends that his
dismissal was unfair, substantively for the reason that the
operational requirements which purportedly justified it had
not been comprehensively established and procedurally,
because the Respondent failed to comply with the
requirements of Section 189 of the Labour Relations Act
1995 as amended ("the Act"), read with Schedule 8 thereto.
2.Both in his Statement of Claim and again in written Heads of
Argument submitted in conclusion by his Counsel, the relief
sought by the Applicant is stated to comprise reinstatement,
alternatively compensation for retrenchment, damages and
costs. In the course of his evidence however, the Applicant
indicated that having regard to the history of the matter and
what he presumably perceived as an irretrievable
breakdown in his relationship with the Respondent,
reinstatement was no longer an option to be considered by
this Court and that his claim is accordingly confined to
monetary relief.
3.THE EVIDENCE
Comprehensive evidence from a Financial and Tax Consultant
retained by the Respondent, Mr N V Clegg, and from its
Chief Executive Officer, Mr M J Beverley, regarding the
commercial rationale underlying the retrenchment in
question was adduced by the Respondent. Mr Clegg
testified that as at September 1999, the Respondent was in
a critical financial situation. It carried a bank overdraft of
R2.6m against which it was paying interest at prime rate
plus 3%. It was indebted to the Commissioner for Inland
Revenue for arrear taxes of R185 000,00. Its local creditors
approximated R500 000,00 and overseas creditors were
owed R6.6m. Four shipments of overseas products ordered
by the Respondent for sale and distribution in the local
market were being held in bond pending the payment of
VAT thereon, which was due in the context that the items
did not attract import duty. There were no funds available
in the company with which to pay this value added tax. A
net loss of approximately R489 000,00 at the end of the
1997 financial year had deteriorated to one in excess of
R3m at the end of the 1998 financial year.
4.The deterioration in the company's fortunes, Mr Beverley
testified, had commenced in 1993 and by 1995, it was under
severe financial constraints as a consequence of a number
of market-related phenomena beyond the Respondent's
control. Its management team, which included the
Applicant, attempted to meet the situation by way of
diversification in its activities but with no significant result.
Retrenchment programmes were accordingly embarked
upon and over the five year period from November 1993,
the employee complement of the company was reduced by
approximately one-half. Further attempts to stem the
deteriorating tide were made in the form of reductions in
salaries across the board, save for those of minimum wage
earners. Retrenchments of technical staff were effected in
September 1995, the employees concerned being offered
trade dealerships in the Respondent's products, which
included a servicing and repair facility. A number of them
had accepted this offer which, Mr Beverley stated, had
"worked out well for them and the company."
5.Further salary cuts were then introduced and applied to the
lower echelon of employees to the extent of 10%, to the
middle order, which included the Applicant, to the extent of
15%, with a reduction of 20% in the remuneration of
directors and senior management. Dealer discounts were
reduced, training costs were limited, the provision of
company cars was withdrawn and substituted by a car
allowance scheme, petty cash expenditure in branches was
capped, the number of company owned dealerships was
reduced from 35 to 22 and numerous other cost-saving
exercises were introduced.
6.These measures notwithstanding however, losses continued
and considerable store, in the context of inhibiting them
further, was placed on the trading results which would
emerge from the 1998 Rand Easter Show. In the face of
adverse exchange rates and rising prices however, the
hoped-for improvement did not materialise and the
withering cash flow dictated that more radical steps were
essential.
7.Discussions between the Board of Directors and, in Mr
Beverley's terminology, the "owner" of the company
(presumably the sole shareholder), certain Joelson,
determined that whilst a further reduction in the lower level
staff complement was impractical, the number of persons
involved in senior management and in particular, at sales
management level, would of necessity have to be reduced.
The introduction of a new computer system precluded the
disposal of administrative executives and the ongoing
necessity to maintain the advertising and show activities in
the company necessitated the retention in its employ of its
General Manager, in whose province these fell.
Consideration would therefore of necessity have to be given
to the retrenchment of the only two other executives whose
functions could realistically be absorbed elsewhere and
which would then become redundant. These were those of
the Applicant as National Sales Manager and of the Direct
Sales Manager, certain Mr R Schmidenberg. The Applicant
did not have sufficient experience in any of the senior
managerial positions to be retained, said Mr Beverley, and
could not realistically be considered for alternative
placement in that context.
8.Consultation with the Applicant on that basis was therefore
indicated and in order to be in a position to deal realistically
with the matter, Alexander Forbes, a firm of consultants and
actuaries, was requested to assess the financial implications
of the Applicant's retrenchment, both to him and to the
company, should this become necessary. These were set
out in a comprehensive report to the Respondent on 25 May
1998.
9.Mr Beverley, he testified, had enjoyed a good working
relationship with the Applicant, whom he regarded as a
colleague, for more than 20 years and he found himself now
in a "difficult and soul-searching exercise." This in due
course took the form of a meeting which he had with the
Applicant on 17 June 1998, and the purpose of which was,
he stated, "to discuss the possibility of his retrenchment."
In the course of that meeting he reviewed the company's
dire financial situation, the unsuccessful attempts which had
been made to remedy it and the necessity to find another
solution. He explained to the Applicant the Board's
perception in that context, that his position had become
redundant. In response to the Applicant's enquiry as to why
it was he who had been selected in that regard, he
emphasised that it was in fact his position and function
which had been identified as dispensable. Cost-saving at
senior management level was imperative.
10.A discussion then ensued regarding other options, Mr
Beverley testified, and he made three alternative proposals
to the Applicant. The first was that he should become an
Elna dealer. He was fully qualified for this and the company
would "set him up in a dealership and finance it."
Alternatively he might wish to "take over one of our retail
shops." The Applicant however rejected this proposal out of
hand. He was not interested, he responded, and wanted
merely to know "what his money would be." Mr Beverley's
response was that whilst his legal entitlement would be a
minimum of one week's salary per completed year of
service, no figures had as yet been worked out.
11.The second alternative proposed by him was that the
Applicant should take over the direct sales management
function, previously performed by Mr Schmidenberg, but in
this instance on a commission only basis and with no fixed
salary. Once again however, the Applicant was not
interested. If Mr Schmidenberg had been unable "to get it
together, how could he be expected to do so," he
responded.
12.The third and last option discussed was the possible
employment of the Applicant in a lower position, such as
that by way of example, of Display Manager, but at a
significantly reduced salary. This suggestion was similarly
rejected out of hand, the Applicant repeating his request to
be advised of the financial consequences of his
retrenchment.
13.The discussion continued on that basis. He was told that he
would be paid one week's salary for each of the 21 years of
his service and which, as had been the case with all other
retrenchments effected in the company, would be based on
his basic salary. The Applicant however protested that the
calculation should be made on his total package and Mr
Beverley undertook, he said, to consult the Board on that
issue and to prepare detailed calculations and revert to him.
14.He then asked the Applicant, Mr Beverley testified, whether
he "had any other ideas" but he had none. The discussion
had been entirely unconfrontational and all that the
Applicant appeared to be interested in, was the financial
implications of the termination of his employment.
15.A further meeting was held a few days later when he again
proposed that the Respondent should set the Applicant up in
a dealership in an identified underdeveloped area such as
Port Elizabeth. This was again rejected and the discussion
was directed to what should be included in the calculation,
subject to the Board's approval.
16.At no time during the course of these discussions, said Mr
Beverley, did the Applicant seek to contest or challenge the
concept of his retrenchment. His sole concern was directed
towards its financial implications. In response to a request
as to how he would like his imminent withdrawal from the
company to be announced, he suggested that it should be
stated that he was retiring. A farewell party was arranged
and held on 29 June 1998 and a parting gift of a
computerised sewing machine worth approximately R20
000,00 was given to and readily accepted by him.
17.The receipt by the company shortly thereafter, of a copy of
the Applicant's reference of an alleged dispute with it to the
Commission for Conciliation Mediation and Arbitration ("the
CCMA") took him completely by surprise, said Mr Beverley,
more particularly as the prescribed form in that regard was
dated and signed by the Applicant on 28 June 1998, with an
allegation that the dispute had arisen on 17 June, - the date
of his initial discussion with the Applicant. The company
then sought legal advice and on 8 July 1998 and in a letter
to the Applicant in which that surprise was expressed, he
recorded the substance of their discussions, the Applicant's
historical and ongoing awareness of the company's financial
difficulties, the circumstances leading to his identification
for retrenchment and the alternative options offered to, but
rejected by him. Pertinently, it was stated that- "We feel
that we have treated you fairly and honestly in all
respects and have been, and still are, willing to
discuss any submissions you may have in respect of
your retrenchment. It is not our intention to become
involved in acrimonious labour litigation with you and
we therefore urge you to consider meeting with the
company as soon as possible in order that we may
attempt to reach a mutually acceptable
arrangement."
18.That invitation was rejected in a telephone conversation
which he had with the Applicant on 14 July, said Mr
Beverley, in which the Applicant reiterated his intention to
pursue the matter with the CCMA. Accordingly, on 23 July
1998, a letter was addressed to the Applicant in which the
company recorded its view that the reference of the matter
to the CCMA was premature in that the Applicant had "not
used and exhausted the internal procedures available to
settle the dispute on a retrenchment package with us" and
together with which an offer in full and final settlement of all
claims arising out of his employment with it and the
termination thereof was recorded in an annexed separate
document which, it was stated, had been formulated "with
the bona fide intention of facilitating an amicable settlement
of this dispute." In terms of that offer, an amount of R28
836,92 was calculated as payable to the Applicant in respect
of notice pay "and related entitlements" as at the end of July
1998 and in addition thereto an offer of a "severance
package in the sum of R50 061,00, based on one week's
salary per completed year of service," was conveyed, this
amount to be paid in five equal monthly instalments with
effect from the end of August. The offer of settlement was
stated to be open for acceptance until 16h00 on Friday 7
August 1998.
19.In a written response dated 27 July 1998, the Applicant
recorded his intention to -
".................... refrain from replying thereto due to the
fact that I am quite justified in claiming that I was
unfairly dismissed and as a consequence have
referred the matter to the CCMA for discussion and
possible settlement by arbitration."
20.A lengthy exposition then followed of his perception of the
financial situation of the company and of the discussions
which he had held with Mr Beverley and which, he
contended, had taken place "on the basis that the decision
to get rid of me had already been made." The package
offered was "nothing near what it should be," and his
entitlement, he considered, would be in the region of two
years salary, notice and leave pay, a substantial sum in
respect of commissions and deferred compensation in an
amount of approximately R25 000,00. The Applicant was
then told in a letter dated 3 August 1998 that the company
did not intend to argue the merits of his case in
correspondence and that, if its offer was not accepted as
stipulated, it would follow the dispute resolution procedure
prescribed in the CCMA.
21.The CCMA conciliation meeting on 7 August 1998 failed to
resolve the dispute but in the course of the conciliation
process, the Respondent undertook to review the original
offer of settlement made to the Applicant. In that context a
revised offer document was presented to him under cover of
a letter dated 14 August in which the financial package now
tendered was based on his gross annual remuneration and,
in addition to the notice pay and other entitlements in the
sum of R28 836,92 which was a component of the original
offer, the severance package was increased to R88 903,00 -
an improvement of nearly R40 000,00. The gross
remuneration upon which it was calculated included the
Applicant's basic salary, his car allowance, the company's
contribution to the Pension Fund, the company's
contribution to the Medical Aid Scheme and an average of
commission earnings over the past five years. The offer was
stated to remain open for acceptance until 20 August 1998
but it is not disputed that for some reason it was received
by the Applicant only on the morning of 19 August.
22.The Applicant's response, in a letter dated 20 August 1998,
was again to contest the basis of calculation of the package
as well, in this instance, as the Respondent's contentions
regarding its financial circumstances. The offer was refused
and the letter concluded with a threat to pursue the matter
in the Labour Court if "you do not come up with an
acceptable offer or an offer which is considered reasonable
in all the circumstances." The Respondent's reply was
concise and to the point. It was not in a financial position to
reconsider the final offer made, it would not litigate with the
Applicant by acrimonious correspondence and it would
vigorously defend any legal action which might be instituted
by him.
23.Detailed substantiation of and justification for the stance
taken by him in the course of those exchanges, was
submitted by the Applicant in his testimony. His meeting
with Mr Beverley on 17 June, he stated, was nothing more
than a formality. Contrary to the contention that it had
been a comprehensive discussion, it had in fact lasted no
more than half an hour. It was apparent to him that the
decision to terminate his services by way of retrenchment
was a fait accompli and there was little point in his
contesting that decision or entering into a debate regarding
its validity at that stage. He was told that a decision had
been taken that retrenchments had to be effected at
management level and that "you're it!" He was shocked
and said nothing more. A number of alternatives were then
offered to him - the appropriation of his retrenchment
package towards setting him up in an Elna dealership, an
offer to join the direct selling division and a third alternative
of employment as a shopfitter and display manager in the
design and fitting out of new shops. He rejected all of these,
the first because it was not viable having regard to the
amount of capital that would be required to implement it,
the second because the joint selling division was a "failing"
entity and the third, because he had no physical experience
of the function involved.
24.He wanted to know, said Mr Fletcher, "what was on the
table." The purpose of the meeting, in his perception, was
not to consider alternatives to his retrenchment but to tell
him that he was leaving. He could not have changed Mr
Beverley's mind and it was in that context, when the form of
an announcement to staff was discussed, that he indicated
that he would like to be thought well of by dealers and that
it would be better if it was said that he had retired.
25.It was correct, Mr Fletcher conceded, that he did not
question the concept of his retrenchment. This was his
understanding of what had been decided but as far as he
was concerned, the basis of calculation of the amount due
to him as subsequently presented to him was incorrect.
26.The purpose of the initial meeting on 17 June 1998, he
reiterated, was not an attempt by the Respondent to reach
consensus with him regarding his retrenchment. That had
already been decided and the purpose was to inform him of
that fact and to present three alternative options to him. It
might well have been possible for them to have reached
some form of agreement had any of those options been
appropriate but save for the shop-fitting and design offer at
approximately half his salary, no alternative had been
suggested to his leaving the company.
27.Asked under cross-examination why he had rejected the
invitation to him in the company's letter of 8 July 1998 to
meet with it in order to attempt to reach a mutually
acceptable resolution of the issue, Mr Fletcher replied that
this was because he had already referred the matter to the
CCMA and did not wish to be prejudiced. He could not
however define the nature of that potential prejudice. The
meeting with Mr Beverley had been a clear indication of the
company's intention to terminate his services and he had
"no argument on my side." Asked why he believed that
repeated invitations to meet with them had thereafter been
extended to him, he could offer no explanation. As far as he
was concerned, the matter was fait accompli and in truth,
the company did not wish him to accept the offers that were
made. Questioned as to why, in those circumstances, he
suggested that he had had no opportunity to present his
own submissions, he replied that he had not taken legal
advice and hoped for assistance from the CCMA. Once the
reference to that Commission had been made, that was the
only forum in which he was prepared to continue
discussions.
28.He was not given the opportunity, he said, to make
alternative proposals. He had not been prepared to enter
into correspondence following the CCMA meeting because
he felt that there was no possibility of his reinstatement or
of a fair settlement of the dispute.
29.The revised offer which was made to him following the
CCMA meeting, had been formulated on the
recommendation of the Commissioner. He had rejected it,
notwithstanding that he could not dispute that it was 75%
more beneficial to him than any previous severance
package offered to anyone else, because he felt that it was
still incorrect and inadequate.
30.Whilst it was correct that he had been aware of the
company's financial difficulties since 1994, the identification
of his position as redundant had not been explained to him
as a necessity in that context, he had merely been informed
of that decision. It was correct however that he had not
attempted to debate or contest that issue and he was not,
he reiterated, prepared to accede to the company's
invitations to enter into discussions with it in the face of
what he perceived as a final decision and in the light of his
subsequent referral of the matter to the CCMA.
31.THE ALLEGATION OF SUBSTANTIVE UNFAIRNESS
I am left in no doubt, from the comprehensive evidence
presented in that regard, as to the straitened financial
circumstances of the company as they developed during the
five year period preceding the Applicant's retrenchment. Mr
Beverley's evidence regarding the deterioration in its
fortunes to that point and the varied efforts made to
address it, was comprehensive and entirely credible. Mr
Clegg's assessment of the parlous financial situation which
obtained at the time of his retention in September 1999,
was not disputed in any material respect.
32.I am also satisfied that, in the senior managerial position
which he held, the Applicant was aware of the state of
affairs. Mr Beverley testified that at all material times he
had access to management accounts and was part of the
management team attempting to deal with it and he did not
seek seriously to challenge that testimony in the course of
his own evidence. The commercial rationale underlying the
Respondent's decision to introduce prospective cost-saving
measures at management level, once other attempted
methods to do so had failed, is also, in my view,
unassailable. That was its prerogative and the necessity for
it to do so is similarly not challenged. The only question
raised by the Applicant in that context was, in his own
words, "why me?" and the basis for his identification for
retrenchment has, in my view, been adequately explained.
Valid reasons, premised on experience and administrative
ability, were advanced for the retention by the Respondent
in its employ of other members of senior management who
were not considered for retrenchment and I am prepared to
accept that, save for the position of direct Sales Manager
which, although at a status level equivalent to his own,
could not be offered to the Applicant on the prevailing
remuneration basis, there was no other managerial position
in which he could realistically have been accommodated.
in which he could realistically have been accommodated.
33.For those broad reasons, I have concluded that the
substantive challenge to the termination of the Applicant's
employment is unfounded.
34.THE PROCEDURAL ISSUE
The attack on the procedural fairness of the Applicant's
retrenchment is premised in its entirety on the Respondent's
alleged disregard of the requirements of Section 189 of the
Act. The Respondent, it is alleged, failed to consult with the
Applicant and made no attempt to reach consensus with him
regarding appropriate measures to avoid his retrenchment,
the basis of his selection and the computation of the
severance package payable to him. No adequate reasons, it
is submitted, were furnished for his dismissal, no
alternatives were considered and no opportunity during
consultation was accorded to him to make any
representations on the issue.
35.A definitive analysis of the substance and purpose of
Section 189 was made in this Court by Brassey AJ in the
unreported case of -
Siphiwe Sikhosana and others v Sasol Synthetic Fuels:
Case No J949/98.
The following apposite extract appears at page 6 of the
typescript.
"Section 189 of the Labour Relations Act 66 of 1995 is normally
regarded as the source of the law governing dismissal for
retrenchment, but in fact it does no more than set out a number
of duties with which an employer must comply when she
contemplates dismissing employees for operational reasons.
None of its provisions deal expressly with dismissal, let alone with
whether and when a dismissal will be fair. There is, for instance,
no provision stating that non-compliance with the section makes a
dismissal for operational requirements unfair nor any provision
stating the converse - ie that compliance with the section makes
the dismissal fair. For the provisions that have this effect, we
must first look to s 185, which gives employees the right not to be
unfairly dismissed, and then at s 188, which states (so far as is
now relevant) that a dismissal is unfair unless it is actuated by a
fair reason based on the employer's operational requirements and
is effected in accordance with a fair procedure. Section 189 has
nothing expressly to say on matters of fairness."
36.At page 7 of the typed transcript of the Judgment, the
following is said:
"The relationship between the dictates of s 189 and those of fairness
is not one to one, however. It cannot be assumed that every
breach of s 189 necessarily makes the retrenchment unfair: every
invalid dismissal will doubtless be unfair but, as I have tried to
make clear, not every dismissal in conflict with the section will
necessarily be - or be treated as - invalid. It would be even more
dangerous to assume that every retrenchment in compliance with
the section is necessarily fair. Section 189, which (with one
exception of no relevance here) deals only with matters of
consultation, is obviously not intended to be exhaustive. A court
determining the fairness of a retrenchment must consider, in
addition to the matters for which the section provides, whether
the employer really needed to retrench, what steps he took to
avoid retrenchment, and whether fair criteria were employed in
deciding whom to retrench. Compliance with s 189, in short, is
neither a necessary nor a sufficient condition for the fairness or
unfairness of the applicable act of retrenchment. The section
gives content and colour to fairness in retrenchment and its
significance as such should not be underrated; but ultimately it
provides only a guide for the purpose, and cannot be treated as a
set of rules that conclusively disposes of the issue of fairness."
37.That analysis, in my respectful view, is unarguable and
when the Applicant's contentions and submissions are
assessed in relation to its components, their validity
assessed in relation to its components, their validity
becomes seriously open to question.
38.In its definitive judgment on the concept of consultation in
the context of retrenchment, the Appellate Division, as it
then was, in -
Atlantis Diesel Engines (Pty) Ltd v National Union of
Metalworkers 1995(3) SA 22
determined that an employer's duty to consult with employees
or their unions in the case of possible retrenchment, arises,
as a general rule, both in logic and in law, when an
employer, having foreseen the need for it, contemplates
retrenchment. The Applicant's contention that that duty
was not observed in his case and that at the stage of his
initial discussion with Mr Beverley on 17 June 1998, the
decision to retrench him had already been taken and was
fait accompli, was not disputed by Mr Beverley, who
acknowledged that in the face of the dire necessity to cut
costs, that appeared to the Board to be the only practical
option if none of the three proposals presented to the
Applicant was accepted.
39.To what extent then, if at all, was this apparent dereliction
inimical to the fairness of the process which followed? I do
not consider that to be the case. The rationale underlying
the equitable principle enunciated in the Atlantis Diesel
Engines case (supra) is not open to question, but in a hard,
realistic and uncompromising commercial environment, it
will in my opinion more often than not prove to be a lofty
ideal, acknowledged in principle but compromised in
practice. In my perception, there can be few employers
who, having identified, as they are fully entitled to do, the
necessity for a valid and bona fide reason to reorganise,
restructure or in some other manner, redefine their business
operations, will not have decided in principle what they
perceive is the optimum method of doing so. What I
consider to be the legitimate purpose of consultation with
employees who might thereby be affected therefore, is not
to assist them in making up their minds, but to determine,
to assist them in making up their minds, but to determine,
by way of consensus, whether there is any practical and
viable basis for changing them. There is, to my mind,
nothing unfair in that concept. In its broad context, it is a
realistic and prevailing phenomenon of commercial life.
40.That is precisely the position in which the Respondent found
itself on 17 June 1998. The need to retrench, when all other
attempted avenues to redress its deteriorating situation had
failed, was clearly identified and the evidence of both
parties to this dispute points unarguably to the fact that that
necessity, insofar as it was applicable to him, was
acknowledged and accepted by the Applicant whose only
concern thereafter related to the financial consequences to
him of the process. No attempt, he conceded, was made by
him to debate the issue or to formulate and present
alternative proposals of his own. He remained intransigent
in that regard notwithstanding repeated invitations made by
the Respondent, in the context of its offers of settlement
both before and after the reference of the dispute to the
CCMA, to meet with it in an attempt to reach a mutually
acceptable arrangement.
41.The situation then prevailing is analogous to that found by
the Labour Appeal Court to have occurred in -
Johnson & Johnson (Pty) Ltd v Chemical Workers
Industrial Union (1999) 20 ILJ 89 (LAC)
It was there held that although the dismissal of the employees
concerned had been procedurally unfair for want of
compliance with Section 189 regarding selection criteria for
retrenchment, the employer had made good its failure
properly to discuss selection criteria soon after its final
decision to retrench, but that the union and the employees
had been unreasonably obstinate in refusing to discuss
these criteria. For those reasons, compensation in terms of
Section 194(1) of the Act was refused.
42.The Respondent's final and significantly improved offer of
settlement, made to and rejected by the Applicant following
the abortive CCMA conciliation meeting, was a
comprehensive one, incorporating as it did all the elements
of remuneration contended by the Applicant to have been
omitted from earlier proposals. The Applicant's response, in
rejecting it and the reiterated invitation to continue
discussions, was to inform the Respondent that if it was not
revised to his satisfaction, he would pursue the matter in
the Labour Court. In that context, he remained consistent in
his intransigence.
43.CONCLUSION
As in the Johnson & Johnson (Pty) Ltd case to which I have
referred, it is that stubborn and unjustified refusal on the
part of the Applicant which disentitles him to any form of
compensation over and above the amounts legitimately due
to him and the statutory minimum computation of which is
significantly exceeded by the Respondent's last offer, which
does not appear to have been at any stage withdrawn. I am
satisfied, for the reasons set out above, that the Respondent
has adequately discharged the onus upon it to establish
both the substantive and procedural fairness of its
termination of the Applicant's employment and in the
circumstances, I make the following order:
The application is dismissed with costs.
For the Applicant:
Attorney I McLaren
For the Respondent: