IN THE LABOUR COURT OF SOUTH AFRICA
CASE NO J1568/99
In the matter between:
JAN GRAHAM STEYN First Applicant
SLAWOMIR ZBIGNIEW JARECKI Second Applicant
ROLAND EARL ILOTT Third Applicant
WESSEL JOHANNES GERBER Fourth Applicant
RALPH WILLIAM DOUGLAS MAPHAM Fifth Applicant
GERHARDUS JOHANNES BEUKES Sixth Applicant
HENNIE FERREIRA Seventh Applicant
ABEL GERHARDUS WALDECK Eighth Applicant
HENRY BOWLER Ninth Applicant
and
DRIEFONTEIN CONSOLIDATED LIMITED
t/a WEST DRIEFONTEIN Respondent
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
JUDGMENT
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
JAMMY AJ
Introduction.
1. The mining group, Driefontein Consolidated Limited, was comprised of three
divisions, East Driefontein, Driefontein Deeps and West Driefontein, which is
the division cited in these proceedings and which for the sake of convenience,
will be referred to hereafter as the Respondent.
2. In or about December 1997/January 1998, a corporate merger between
Goldfields of South Africa Limited, of which the Driefontein Consolidated
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Limited group was part, and Gencor Limited, spawned an entity known as
Goldfields Limited. The Applicants in this matter had, at that time, varying
lengths of service with different companies formerly falling within the
Goldfields of South Africa Limited group.
3. That group, during 1997 and prior to the corporate restructuring above
referred to, had commenced a programme known Vulindlela. Mr A R Bloom, at
the time the Communications Manager of the Respondent, testified that the
objective of that programme was to restructure and revise reporting levels and
operational methods "entrenched in traditional prehistoric processes", in order
to render the group internationally competitive and to ensure its survival into
the new millennium.
4. The grading structure applicable in the Respondent's operations is known as
the Patterson System and the categories of employees to which it is applied
are defined in various bargaining units. They are the following:
4.1 Mine labourers, who fall within a bargaining unit made up of Grades 3 to 8 and
who are in the main represented by the National Union of Mineworkers
("NUM").
4.2 Artisans, colloquially referred to as "union men", the majority of whom are
represented by the Mine Workers Union ("MWU").
4.3 Officials, principally represented by the United Associations of South Africa
("UASA"). This unit comprises three subdivisions, each with an upper and lower
level and which are known as C-Band, D-Band and E-Band. In the context of
that particular benefit to which they are entitled in that regard, officials in the
D-Band and E-Band are colloquially referred to as "company-car drivers." All
employees in the C, D and E Bands are graded 9 and higher in the Patterson
system and, within the Respondent's hierarchy, are referred to as "category 9
and above" employees.
The material facts.
5. The merger of its corporate constituents and the transfers and combinations of
5. The merger of its corporate constituents and the transfers and combinations of
assets into the Goldfields Limited entity necessitated a broad restructuring
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programme which, inter alia, radically affected the internal corporate structure
of the Respondent and the testimony presented by its witnesses and the
documentation submitted to substantiate it, indicates a series of consultations
with its executives in that regard. Notice of and details regarding the merger
were conveyed in meetings, initially on 25 November 1997 when all the
Applicants other than the Second Applicant were present and then on 19
January 1998 when details of what was referred to as "the most significant
restructuring that our company has seen in its 110 year history", were
comprehensively traversed.
6. On 3 February 1998, Mr Bloom circulated an executive team brief dated 2
February 1998 - the specific day upon which the new entity, Goldfields Limited,
was listed on the Johannesburg Stock Exchange - to all the Respondent's heads
of department, supervisors and company-car drivers. It included the following
pertinent statement:
"We are busy with consultations about possible retrenchments, there
are two recruitment and selection processes running concurrently,
and soon we will be moving people to new positions and start
separating the business of Goldfields Limited and GFSA. All of this
while our operations and this head office are faced with some very
crucial business challenges."
The brief concluded with the following statement:
"The next few weeks are going to be taxing on every person in GFSA
and Goldfields Limited. The executive and senior management are
committed to do everything within our power to ensure that the
transition for the company and each individual is as smooth, fair and
painless as possible. I invite you to join us in our efforts to ensure
that the process is credible and successful. If you have any
suggestions on how the process can be improved, at any level, please
let us know."
suggestions on how the process can be improved, at any level, please
let us know."
7. The series of consultations then continued and by now involved all appropriate
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trade unions and associations including the Mine Workers Union, the National
Employees Trade Union, the South African Electrical Workers Association and
the United Association of South Africa. At one such meeting, on 3 March 1998,
the Mine Manager informed those present that a retrenchment was
contemplated of approximately 5000 employees.
8. Detailed briefings to all employees in the category 9 and above bands ensued,
alternatives to retrenchment were canvassed and a draft retrenchment
agreement was submitted by management and circulated to the
representatives of the unions and associations involved.
9. The issue of retrenchment was then specifically addressed in a circular from
the Mine Manager to all employees on 19 March 1998. It is of relevance that
reference therein was made to consultation with various employee
organisations in categories 2 to 8 and, with regard to category 9 employees, to
meetings with "unions and associations representatives to consult on measures
to avoid or minimise job losses." Reference was specifically made to the effect
on residential, medical aid and pension benefits in the event of retrenchment.
10. The concept of voluntary retrenchment as an alternative to forced
retrenchment was canvassed at subsequent meetings which now included the
National Union of Mineworkers. Negotiations continued towards the conclusion
of a retrenchment agreement and eventually, an agreement, signed variously
at the end of March and early in April by the parties thereto, was entered into
by the Respondent on the one hand and the Mineworkers Union, the National
Employees Trade Union, the South African Electrical Workers' Associations and
the United Association of South Africa (collectively referred to therein as "the
unions/associations") and which would be applicable to the retrenchment of
any employee in category 9 and above for the duration of the agreement,
any employee in category 9 and above for the duration of the agreement,
which was expressly stated to constitute a collective agreement for the
purposes of the Labour Relations Act and any other relevant legislation and
which would be valid "for the period of 1997/1998 wage accord."
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11. Pursuant to the consultations to that date, applications for voluntary
retrenchment were then invited, a separate agreement between the
Respondent on the one hand and NUM and UASA on the other was concluded
relating to the retrenchment of employees in categories 3 to 8 and a series of
meetings then ensued between representatives of UASA and management
relating to the specific circumstances of those D-Band employees known as the
company-car drivers. The thrust of those meetings related to the re-
negotiation of severance packages previously canvassed and it was agreed, at
a meeting on 27 March 1998 that a negotiating team, elected by and
representing D-Band employees, would thereafter pursue consultations with
Respondent's management in a joint negotiating body to be known as the "D-
Band Forum."
12. A series of meetings of the D-Band Forum then ensued during April 1998,
culminating on 21 April in a formal agreement between the Respondent on the
one hand and the D-Band Forum on the other relating to the proposed
retrenchment of company-car drivers.
13. That agreement recorded inter alia that reasonable notice of the Respondent's
intention to retrench and the reasons for it had been furnished, that the
approximate number of employees likely to be affected as well as their
designations, job categories and departments would be conveyed, that various
specified alternatives would be considered with a view to the avoidance or
minimising of the retrenchment programme, particularly with reference to
possible vacancies in other companies in the Goldfields Limited group, that
selection criteria, benefits upon retrenchment and the formulation of severance
package remuneration had been agreed upon and that the terms and
conditions of the agreement "would constitute a full and final settlement of this
retrenchment process conducted at the company."
retrenchment process conducted at the company."
14. It is common cause that on 22 June 1999 the agreement was extended for a
further period of one year and that on 12 June 2000 it was extended for a
further year.
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15. Pursuant to the agreements concluded by it respectively with NUM and the D-
Band Forum, the Respondent embarked on an ongoing process of
retrenchment. In the result, approximately 4500 applications for voluntary
retrenchment were accepted, a process of "flattening" the reporting structures
within its separate mining operations was commenced, resulting in a series of
forced retrenchments and in particular the closing down entirely of one of its
shafts and, later in the year, the determination that one such operation, known
as the Raise-Bore operation was surplus to its requirements. This in turn again
resulted in various retrenchments both voluntary and forced, all of which were
conducted, the Respondent submits, in accordance with the agreements which
had been reached without dispute or challenge from the parties thereto.
16. During September 1998, the newly appointed Technical Manager of the
Respondent, Mr A Smit, was directed by the new Mine Manager of the
Respondent, Mr G Nell, to review existing structures in the Respondent's
technical department and to present proposals for such changes therein as
would accord with the Respondent's stated aim of flattening its structures.
Smit implemented that instruction through a process of workshops attended by
heads of department within the affected division.
17. In November 1998 the Respondent concluded an agreement with UASA which
provided, inter alia, for the appointment of a "full-time association
representative", to be regarded by the parties as an authorised agent of UASA
and whose primary functions were defined to include the following:
"To seek mandates from the employees he represents;
To, through the process of liaising, consulting and negotiating at the
appropriate levels with company management on issues of mutual
concern, promote safety, monitor and promote harmonious and
productive working relationships between members of the Association
productive working relationships between members of the Association
and the company."
The person appointed to that position pursuant to that agreement, was certain
Mr Eddie Dye.
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18. Pursuant to Nell's instruction to Smit to investigate existing structures in the
technical department and the extension thereof to the structures in the Human
Resources Department with Bloom, then acting as the relieving Human
Resources Manager also being involved in the exercise, Bloom proposed a new
structure for the Human Resources Department in which, inter alia, the position
of hostel manager was found to be redundant and surplus to the needs of the
Respondent. The Third Applicant in this matter, Mr R E Ilott, was the
incumbent in that position and Bloom's proposals were submitted to and
endorsed by Nell.
19. The situation in the technical department was reviewed and certain positions
therein were identified as being redundant, by Smit. These included the
position of Chief Engineer, at the time held by the Second Applicant, Sectional
Engineer in the metallurgical department, held by the Fourth Applicant,
Ventilation Engineer in the environmental department, held by the Sixth
Applicant, Chief Electrician, held by the Ninth Applicant, two Engineering
Supervisor positions, respectively held by the Fifth Applicant and certain
Campbell and Engineering Technical Assistant in the risk co-ordination
department, held by the First Applicant.
20. Two other positions, neither of them in either the technical or Human
Resources Departments, were also identified as being redundant and these
were the position of Raise-Bore supervisor, held by the Eighth Applicant and
Acting Chief Electrician at the Respondent's No 6 Shaft, held by the Seventh
Applicant.
21. I have made earlier reference to the closure of the Raise-Bore department. It is
common cause that when that occurred the Eighth Applicant, Mr A G Waldeck,
applied for voluntary retrenchment and that his application was approved but
aborted in the face of an ongoing security investigation involving him.
aborted in the face of an ongoing security investigation involving him.
22. On 30 December 1998 the gravamen of the analyses thus carried out and the
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positions identified therefrom as redundant were communicated by Bloom to
UASA in the person of the association representative Dye. The individuals
holding the 13 positions affected were all members of the Respondent's senior
management and Bloom testified that what was then agreed was that each
individual would be apprised of the overall state of affairs and his own resultant
redundancy in a separate interview, that alternative employment would be
sought for him elsewhere in the group and that in the event of vacancies thus
being identified, interviews would be set up and if no alternative employment
resulted therefrom, further discussions would be held regarding retrenchment
packages. This process was to take place during the first week of January 1999
and the association representative if he wished or was so required, "would be
welcome to attend interviews or seek clarity on behalf of members."
23. Separate meetings were then held by Bloom with the Third and Seventh
Applicants in which they were informed that their positions had become
redundant.
24. A critical meeting was convened by Smit on 31 December 1999 with members
of the various departments falling within the technical division and at which,
Smit testified, he described to them in detail the new structure which had been
approved and was to be implemented and in which he identified the positions
which had in consequence become redundant.
25. Later the same day Nell telefaxed a letter to the Managing Directors of the
Driefontein Consolidated, Kloof and Free State Mines and all mine managers,
identifying the specific positions and their employment levels which had
become redundant and requesting information as to whether any of the
persons thus affected could be placed at their mines. The association
representative, Dye, was similarly informed by Bloom. It is common cause, as
it emerged in the course of the following few days, that none of the affected
it emerged in the course of the following few days, that none of the affected
persons could be accommodated in any of the other operations within the
Goldfields Limited Group.
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26. On 5 January 1999 therefore, Nell, in his capacity as Mine Manager, addressed
a letter to each of the Applicants, in essence in identical terms. Each was
informed that his service with the company was being terminated as a
consequence of the "downscaling of operations, due to operational
requirements and gold price constraints" and the necessary "review of the
company's employment position." The terms and conditions to be applied to
that termination and which, it was pertinently stated, had been "agreed to by
the Unions and Associations" were then set out in detail. These included a
notice period of thirty days, the severance benefits to be paid and ancillary
aspects relating to housing, medical aid, loans and the position regarding
company vehicles.
It is in my view apposite to record at this stage that the evidence which I have
reviewed was presented viva voce, with reference where appropriate and
relevant to substantial documentation before the Court, solely by the
Respondent's two witnesses, Messrs Bloom and Smit. None of the Applicants
testified and nor was any other form of direct evidence adduced on their
behalf. The Applicants' case is structured solely on inroads into the validity,
and concessions submitted to have been extracted in the course of, the
Respondent's testimony by way of cross-examination.
28. The Applicants contend that their retrenchments were both substantively and
procedurally unfair and in their Statement of Claim, identify seven specific
areas of dereliction on the part of the Respondent in that context. They are the
following:
i. None of them was privy to the conclusion of the retrenchment agreement
between the Respondent and the D-Band Forum.
ii. The majority of the Applicants were only apprised of their possible
retrenchments when they received the letters from the Respondent to which I
retrenchments when they received the letters from the Respondent to which I
have earlier referred, informing them of the termination of their services.
iii. They were not consulted regarding the new structures of the affected
departments which were presented to them at the end of December 1998.
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iv. The Respondent, they contend, "failed to appreciate the uniqueness of the
positions" of the Applicants and should have advised them, at a far earlier
stage, that they would be affected by the restructuring.
v. The Respondent's selection criteria were meaningless in relation to the
positions held by the Applicants.
vi. The Respondent failed to disclose relevant information to the Applicants to
enable them properly to consult and finally and addition to those areas of
alleged non-compliance with s189 of the Labour Relations Act 1995,-("the
Act").
vii. they were unfairly discriminated against by the Respondent "in that there was
no consultation on their selection for retrenchment or on the reason why it was
necessary for the Applicants to be retrenched as part of the cost saving
exercise." This, it is submitted, constitutes a residual unfair labour practice as
contemplated in Item 2 of Schedule 7 of the Act.
The issues.
29. The disputed issues which fall to be determined on the evidence before this
Court are defined in a pre-trial minute filed by the parties, as being
29.1 whether there was a need to retrench the Applicants;
29.2 whether the series of 8 meetings, traversing the period 3 March 1998 to
16 April 1998 "constituted part of the process of consultation as far as the
Applicants' retrenchments are concerned"; and
29.3 whether the retrenchment agreements concluded on 26 March 1998 and
21 April 1998 were applicable to the retrenchment of the Applicants and if so,
whether there was compliance by the Respondent with the terms of those
agreements.
The substantive issue.
30. That the onus to establish the substantive justification for retrenchment for
operational reasons rests with the employer, is not open to question. In
Mamabolo & others v Manchu Consulting CC (1999) 20 ILJ 1826 (LC)
that issue was examined by the Labour Court. At 1831, Van Niekerk AJ said
this:
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"The first issue that the court is required to determine is the
substantive fairness of the applicants' dismissal. S188 of the Labour
Relations Act 66 of 1995 (the LRA) requires an employer that
dismisses an employee for reasons relating to operational
requirements to establish a fair reason for the dismissal. The
approach adopted by this court is to require the employer to provide
substantive proof of a need to retrench in the form of a commercially
rational and sustainable reason, but not to question the commercial
imperatives that underlay that decision, unless some ulterior motive
is established. In other words, it is not the function of the court to
second-guess the employer's decision to retrench. It is not
appropriate to intervene only because the decision taken by the
employer was not the one to which the court would have come in the
same circumstances."
31. Stated differently, it is the employer's prerogative, provided that it is exercised
rationally, in good faith and transparently, to determine the parameters, the
direction, the structure and the objectives of its business operations. The
competitive challenges prevailing in the commercial sphere will invariably be
differently assessed and addressed from enterprise to enterprise and how this
is done will inevitably bear emphatically on the success or failure of the
business concerned. The role of this Court is not one of a judgmental business
consultant or adviser and it will not readily presume to dictate or prescribe to
commercial sophisticates or industry captains how they should direct or
manage their business affairs.
32. The Respondent's testimony that, having identified the necessity to achieve a
more cost effective deployment of personnel in the face of a reporting
structure bedevilled by what it described as traditional and prehistoric
structure bedevilled by what it described as traditional and prehistoric
processes, it perceived the necessity to flatten those structures, was not
subjected to any commercially-based challenge, whether in the form, as I have
stated, of direct rebutting evidence or by way of material cross-examination.
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33. The review, in the course of the testimony presented by its witnesses, of the
presentation and disclosure at various times and in various forms to its line
management and employee body, indicates what is to my mind an acceptable
level of transparency and broad statement of intent in that context. The
possibility of retrenchments as an element of the exercise was in a broad
context raised as early as 3 March 1998 when, at a meeting specifically
recorded as being the first in the process required by s189 of the Act, the Mine
Manager indicated that consultations on the issue should start as soon as
possible, having regard to the urgency of a situation in which the Respondent
"could not sustain any more serious financial losses."
34. The number of persons potentially to be affected in the proposed programme
negated any realistic possibility at that stage of consultation other than on a
representative basis and it is not disputed that unions and associations
representing employees of the Respondent across the board, were involved in
the process virtually from its outset.
35. Each of the Applicants, as is common cause, was an employee in the D-Band
category and there can be no doubt in my view, that the retrenchment
agreement concluded by the Respondent on 26 March 1998 with the various
unions and associations therein defined, including UASA, was in its broad terms
applicable to all of them. Of further significance in that context moreover, was
the establishment of the D-Band Forum and the consultations specifically
directed to the special circumstances of the "company-car drivers" whose
interests it represented. Once again, the Respondent's testimony regarding
the series of consultative meetings which culminated in the retrenchment
agreement between the Respondent and the D-Band Forum concluded on 7
April 1998 was not disputed.
April 1998 was not disputed.
36. The D-Band agreement, which was comprehensive in its terms, was in
operation at all times material to the dispute following its conclusion. It is a
fact however, as the Applicants contend, that although they fell within the
constituency to which it was directed, individuals to whom its terms might be
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applied in the future were not identified. The fact however that at that time,
their retrenchment was not envisaged, does not suggest to me that if, at any
time in the future, that possibility or likelihood arose, a reversion to the terms
of that agreement as being the governing general manifesto, would not be
required.
37. There seems to me to be merit moreover, in the Applicants' submission that, in
the light of letters addressed to them as late as 11 November 1998 by the Mine
Manager in terms of which, with effect from 1 November 1998 their
employment status and conditions were set out in detail and confirmed, they
were justifiably lulled into the belief that whatever was taking place in the
broad environment around them, they were not being or to be affected
thereby.
38. No evidence was presented by the Respondent to indicate any consultative
meetings between April 1998 and November 1998, when the association
representative, Eddie Dye, emerged in essence as the collective bargaining
representative. Mr Dye's direct involvement thereafter appears for the first
time to have been on 30 December 1998, when he was informed of the
positions which had been determined as redundant and the individuals thereby
affected.
39. The further testimony by the Respondent's witnesses regarding Smit's briefing
meeting on 31 December 1998 and the correspondence emanating from
management which ensued thereafter, serves in my view to substantiate what
is in any event the uncontested submission by the Applicants that no earlier
direct indication of their demise as employees of the company had been
received by them.
40. Patently, at that stage, their selection for retrenchment and the criteria applied
by the Respondent in making, it were presented to them as faits accomplis
and whether or not these were valid and justified is, to my mind, irrelevant to
and whether or not these were valid and justified is, to my mind, irrelevant to
the fact that none of the Applicants was afforded any realistic opportunity to
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debate or to contest them or meaningfully to attempt to divert or persuade the
Respondent from its indicated course of action insofar as it affected them as
individuals. It may well be, as the Respondent contends, that aspects such as
the retention of skills and the broad internal restructuring presented by Smit on
the last day of the year, were unassailable but this does not negate the clear
entitlement of the individuals thereby affected to to seek appropriate
assurance that, to the extent that the D-Band Agreement was now being
specifically applied to them, it terms and provisions were being rationally and
equitably implemented.
41. Irrespective therefore of the fact that the Applicants themselves did not elect
to testify in these proceedings, the undisputed facts of the matter as they
emerge from the Respondent's evidence indicate that, whilst the broad
imperatives of Section 189 of the Act were met on a general basis in the
context of the overall restructuring exercise, there was a radical failure on its
part to have afforded the Applicants a meaningful opportunity to consult "at
the death" so to speak, on aspects and factors which they perceived as
materialy relevant to their individual circumstances. Whether or not this
rendered that dismissal unfair however, is a separate question. In Sikhosana
& others v Sasol Synthetic Fuels (2000) 1 BLLR 101, Brassey AJ, at 106D
said this:
"The relationship between the dictates of s189 and those of fairness
is not one to one, however. It cannot be assumed that every breach
of s189 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
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 was
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employed in deciding whom to retrench. Compliance with s189, 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."
See also -
Fletcher v Elna Sewing Machines Centres (Pty) Ltd (2000) 3 BLLR 280
(LC).
42. I have concluded, as I have indicated, that as far as the individual applicants
were concerned, the basic consultation requirement of section 189 of the Act
was not, in all the circumstances of this matter, satisfied by mere reference to
the broad provisions of the D-Band agreement or by the mere notification to
the association representative of what already, at that time, had been finally
decided. Certainly there is no suggestion that Eddie Dye in that capacity was
invited or sought in any respect to challenge, question or debate the issue.
The analysis in the Sikhosana case to which I have referred therefore, whilst of
undoubted validity in its broad terms, does not in my opinion bear on the
present dispute. On the narrow issue of inadequate consultation regarding the
factors and criteria applied in their individual identification for retrenchment,
whether valid and justified or not, the termination of the
Applicants'employment, in the manner and in the circumstances in which it
was effected, was to my mind unfair.
43. I turn in conclusion therefore to the relief to which I consider that they are
entitled. As far as the Eighth Applicant, Waldeck is concerned, I agree with the
submission on his behalf that his application for voluntary retrenchment was
superseded by the notice of termination contemporaneously given to him. On
superseded by the notice of termination contemporaneously given to him. On
any assessment, the Respondent intended to retrench him and no basis, in my
view, exists for his differential treatment in that context.
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44. The commercial rationale for the restructuring which gave rise to it having in
my view been established, the dismissal of the Applicants was, as
contemplated in Johnson & Johnson (Pty) Ltd v Chemical Workers
Industrial Union (1999) 20 ILJ 89 (LAC), unfair solely for want of adequate
compliance with a proper procedure. No suggestion or submission has been
made to me as to why the discretion reserved to me as to whether or not to
award them compensation should not be exercised in their favour and on that
basis, they are entitled, by way of a solatium, to an amount equivalent, in
terms of the statutory prescribed formula applicable in the circumstances of
this case, to 12 months remuneration, calculated at their respective
remuneration rates prevailing at the time of their dismissals, subject however
to the deduction therefrom of the amounts already paid to and received by
them as retrenchment packages when they were dismissed.
45. I have concluded however that their reinstatement is not in the circumstances
appropriate. In the first instance, that was not an element of the relief initially
sought by their legal representatives when demand was first made on the
Respondent on their behalf. Secondly, nearly two years after the event and at
a time when, during that considerable period of time, the Respondent has
presumably operated on the radically restructured basis which rendered the
positions held by them redundant, their reintegration in the business
operations of the Respondent would in my view be impractical and inequitable.
Pertinently in that regard moreover, no evidence was presented by any of the
Applicants as to what, in the prevailing circumstances, they might see
themselves as willing or able to do in the Respondent's restructured operations
or as to the terms and conditions in that regard which would be acceptable to
them.
or as to the terms and conditions in that regard which would be acceptable to
them.
46. In all the circumstances of the matter, and for the reasons which I have stated,
the order that I make is the following:
46.1 The termination by the Respondent of the employment of the First to
Ninth Applicants was unfair for want of a fair procedure.
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46.2 The Respondent is ordered to pay to each of the First to Ninth Applicants
an amount equivalent to 12 months remuneration, calculated at the rate of
remuneration prevailing at the date of his dismissal but subject to the
deduction therefrom of the total amount received by him as a retrenchment
package at the time of his dismissal.
46.3 The Respondent is to pay the Applicants' costs.
ÄÄÄÄÄÄÄÄÄÄÄÄ
B M JAMMY
Acting Judge of the Labour Court
17 October 2000
Representation:
For the Applicants: Mr G Higgins: Sampson Okes Higgins Inc
For the Respondent: Adv R Hutton instructed by Leppan Beech Attorneys
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