IN THE LABOUR COURT OF SOUTH AFRICA
Held at Johannesburg
CASE NO : J 3324/98
In the matter between
Applicants
UNION AND OTHERS
and
Respondent
_________________________________________________________
JUDGMENT
_________________________________________________________
LANDMAN J :
1.Drilcon drills holes in the veld for its client SASOL. Around June 1998 Drilcon experienced a slow down in
operations. It did not receive new contracts but hoped to negotiate some in August. In June work for its fleet
of 12 drilling machines was rapidly drying up. This situation prompted Drilcon to hold a meeting with Mr
Mhlongo, the SACWU organiser based at Newcastle, on 8 June. Its own shop steward Mr Doctor Mhlanga
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was also in attendance. Drilcon stated that it was contemplating retrenchments. Proposals and counter
proposal were tabled at this meeting.
2.On 18 June Drilcon advised SACWU that it would have to put some employees on unpaid leave until the end of
July while it waited to see if any further contracts would be awarded. If no contracts materialised the
employees would be retrenched.
3.Another meeting was held with SACWU on 22 June. Again the company’s perilous situation was explained to
the union. Drilcon proposed that the employees remain on unpaid leave. The employees were not yet on
leave but they received their pay that day and many went off on what Drilcon believed was to be unpaid
leave until the end of July. The situation was unchanged on 30 June when Drilcon wrote to SACWU.
SACWU, as evidenced by Mr Mahlongo’s letter of 3 July, also believed that three teams of employees
would take unpaid leave but only until 1 July.
4.Most of the workers who were on unpaid leave arrived back at Drilcon’s premises on 1 July. Mr Doctor Mhlanga
arrived, he said, on 2 July. They were told there was no work for them but they refused to leave and
occupied their caravans. The police were called to the premises on two occasions. Drilcon led evidence
that this was because of the union members intimidating other staff while demanding pay. The union’s
position is less clear. But it is conceded that the Police were called in.
5.Management held a meeting with Messrs Mhalngo, Mhlanga and Gwebu, another shop steward, on 6 July. It
was a confrontational meeting with both parties tabling their perspectives on the supposed agreement
between them. The union position was that it would not enter into consultations on the retrenchments
because Drilcon had put its workers on unpaid leave.
6.Although Mr Mhlongo and Mr Vermaak, Drilcon’s manger, have no recollection of this it is highly probable that
on 7 July Drilcon sent a letter, page 135 of Bundle B to SACWU proposing voluntary retrenchments and a
severance package. Mr Mhlongo refers to a letter from Drilcon of this date in his reply of 8 July. He does
not believe it was the document at page 135. I am of the view that it probably referred to this letter.
7.On 7 July five employees, some or all of whom were union members, volunteered for retrenchment by
submitting their names on blue writing paper to management. They were Messrs Steven Gwebu, Absalom
Khumalo, Alfred Tsotetsi, December Hlope and Edward Tsoletsi. Drilcon did not deal with them but
convened a meeting with SACWU for 9 July. Drilcon brought in a new face for this meeting, namely Mr
Gert van Deventer, the partner of its labour relations consultant. The meeting was taped and submitted as
exhibit 1. What purports to be a transcript was contained in the bundle of documents. Despite some quibbles
during the trial it was conceded that the transcript was accurate. It is however incomplete. The brief typed
minute which accompanied the transcript accurately sums up the consensus between the parties. It reads:
“ After some more discussions the company and the union reached the following agreement:
The company will pay 14 days’ wages to the employees on unpaid leave.
The company will offer a voluntary severance package to all employees on 9 July 1998 and the package
would be available until the 14 th July 1998.
At least 12 employees must leave the service of the company. If 12 employees had not applied for the
voluntary package by the 14 th July 1998 the remainder will be retrenched according to LIFO.
If more than 12 employees applied for the voluntary severance package the company will consider those
applications as well.
The severance package (voluntary as well as forced severance package) would consist of the following:
seven days notice.
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two weeks’ wages for every year completed service or part thereof.
all other outstanding money.
The company will proceed and communicate the abovementioned to all employees after the closure of the
meeting.”
8.The transcript and the voices on the tape make it clear that the parties at the meeting envisaged that some
employees might volunteer immediately and that they will receive their package that same day. After the
meeting Mr Mhlongo left for Newcastle. The shop stewards informed their members about the agreement.
9.At about 11:00 that morning six employees, Messrs Steven Gwebu, Aron Makhanya, Vusi Khumalo, Ezekiel
Makhanya and John Maseko placed or had their names placed on a piece of blue paper which was presented
to Mr Vermaak as the names of volunteers for retrenchment. I pause to note that only Steven Qwebu’s name
was on the 7 July list.
10.At 11:30 another list on identical blue paper was presented to management. The origins of this list, its
presentation and its implications are a matter of dispute. The list contains the names of 12 employees. It
includes the names of Messrs Alfred and Edward Tsoletsi and December Hlope whose names were on the
list of 7 July. Absolom Khumalo (assuming he is not known as Vusi Khumalo) does not seem to have
volunteered a second time.
11.All the workers whose names were on the two lists handed in on 1 July were called individually to the office
where they received a cheque, their blue card and a letter saying that they had been voluntarily retrenched.
They signed for their cheques and their blue card. Mrs Venter, the accountant, said that their forms were
also initialled or signed by a shop steward. Most of them were initialled by Mr Doctor Absolom Mhlanga
who used the initials DA. Mr Mhlanga denies this. His own form was signed by Steven Gwebu as shop
steward. The employees who had been paid then left for home peaceably.
12.The next day, 10 July, Mr Mhlanga telephoned Mr Mhlongo and told him that the employees had handed in a
list for food but were retrenched. Mr Mhlongo telephoned Mr Vermaak and was told to speak to his labour
consultant. I might add that the pleadings say that Mr Vermaak said, on this occasion, that the employees
had volunteered for retrenchment.
13.Subsequently SACWU referred a dispute to the CCMA and ,when conciliation failed, it launched an
application in this court complaining that Drilcon had unfairly dismissed 17 members. At the
commencement of the trial Mr Modise, who appeared for the applicants, stated that he was not acting for
the employees who names appear at 2, 4, 5, 6, 12 and 14 on annexure “A” to the statement of case. It was
also conceded that the dismissals were substantively fair.
14.The issue which must be decided is a relatively crisp one although the evidence relating to it is sparse. Did the
employees on the 11:30 list also volunteer for retrenchment as contended by Drilcon or were they
unilaterally duped into putting their names on a list in the belief that the list was an attendance record and
was to be used for issuing food rations? The union contends that instead of getting food they were
retrenched as volunteers.
15.There is support for Mr Mhlanga’s version. It is improbable that food, which is issued every Wednesday,
would have been issued on 23 June when most of the affected employees had been paid and, on Drilcon’s
version, were to be leaving until the end of July 1998. The evidence of Mr Vilakhazi that some food was
found in the caravans after 9 July would indicate the contrary. The evidence is however inconclusive and
unsatisfactory on this issue. Mr Mhlanga’s version is also supported, to an extent, by the fact that the
supply of food rations to employees, including those who would not immediately accept voluntary
retrenchment but who would remain at headquarters was raised on at least three occasions during the
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meeting held on 9 July.
16.Mr Vermaak denies that he instructed Mr Mhlanga to ascertain the names of the employees who were present
and who required food. Mr Vermaak says that at 11:30 a shop steward brought the 11:30 list of 14
employees to him. There appears to have been nothing of importance said to him for he could not recall
anything. It does not seem that the shop steward said anything like: “Here is a list of more volunteers for
retrenchment.” Mr Vermaak inferred that this was the intent and purpose of the list. I have listened to the
tape and it is clearly recorded that the manner of identifying volunteers for retrenchment would be the
handing over of a list of names of volunteers.
17.Mr Vermaak’s inferences were confirmed by subsequent events. The persons on the 11:30 list made no protest
when they were called to collect their cheques, blue cards and certificate of voluntary retrenchment. They
were dressed in their homegoing attire and had packed their belongings. They were not vociferous nor did
they protest as they had done on the two occasions when the Police were called to the scene. I also accept
the evidence of Mrs Venter that Mr Mhlanga initialled the receipts of most of the employees who were paid
off. He made no protest to Steven Gwebu, his fellow shop steward, who signed his form. He was not
intimidated into accepting these items. If he and his fellow employees were duped they would have
discovered the deception the moment they were called to the office to collect their severance pay.
18.The probabilities point to the 7 July volunteers as being most likely to revolunteer on 9 July. This leads to the
reasonable inference that they and the other workers whose names are on the 11:00 and 11:30 lists were
volunteering for retrenchment. The three were not called to rebut the inference that they were again
volunteering. This raises in my mind doubt whether they authorized SACAWU to bring this application on
their behalf. Mr Modise, at the commencement of the trial informed me that he was not proceeding on
behalf of no 14 on annexure A to the Statement of Case, Alfred Tsotetsi. But Edward Tsotetsi and
December Hlope claim unfair retrenchment. They did not give evidence.
19.In the circumstances I do not accept the version of Mr Mahlangu. It follows that the applicants have not shown
that the individual applicants did not voluntarily terminate their employment with Drilcon. I reach this
finding on the balance of probabilities and it is as a result of the probabilities that I do not find the version of
Mr Mahlanga credible. In addition I do not believe his reasons for accepting his cheque and blue card on 9
July. Should I take the onus of proof, which rests on the individual applicants to prove that they were
dismissed, into account, it has the effect of strengthening my finding.
20.In the premises the application is dismissed. The first applicant is to pay the costs of the respondent.
SIGNED AND DATED AT BRAAMFONTEIN THIS 27 TH DAY OF NOVEMBER 2000.
A A Landman
Judge of the Labour Court
20, 21, 22 and 23 November 2000
27 November 2000
Mr L Modise of RoutledgeModise
Mr Maddern of Wright Rose Innes Inc
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