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J3513/99 1 JUDGMENT
Sneller Verbatim/HVM CASE NO. J3513/99
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
20001207
In the matter between:
J M KOCK Applicant
and
ENVIROSERVE WASTE MANAGEMENT Respondent
J U D G M E N T
Delivered on 8 December 2000
REVELAS J :
1.Mr Jacobus Kock, the applicant, was employed by the respondent during June
1997 in the position of national waste manager. During December 1997 he
was appointed as operational supervisor which position he retained until
his services were terminated with effect from 30 June 1999 due to the
respondent's operational requirements.
2.The applicant accepted that the respondent experienced financial
difficulties which necessitated restructuring.
It was also not disputed by him that discussions pertaining to the
restructuring were held with all the
respondent's employees including the applicant.
3.It was further the applicant's case that employees were told that after
retrenchment any new reemployment opportunities would be communicated
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to them. It was also not disputed that the positions to be affected was
explained with an organogram.
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4.The applicant's case is that during the restructuring
process his position never really became redundant and that there was no
need to terminate his services.
5.Before scrutinising the applicant's allegations regarding his retrenchment
it is necessary to examine the respondent's restructuring process in the
context of the nature of its business.
6.The respondent's business mainly concerns the management of different forms
including inter alia medical waste such as hazardous and non hazardous
waste. Different divisions of the respondent operated as such in
different regions. One of the divisions is the Samu Med division which
manage medical waste in Gauteng. Samu Med operated in Kimberley,
Roodepoort and Rietfontein, near Edenvale. This application concerns
the two latter divisions.
7.Prior to the restructuring which commenced in 1999, the following
managerial supervisory sales related and administrative positions
existed in this division:
1. Regional manager.
2. Customer liaisons person.
3. Secretary.
4. Sales manager.
5. Regional operational manager.
6. Supervisors (four), and
7. Waste consultants (four).
8.The investigations and advice obtained during the restructuring had as a
result that two incinerator supervisors were transferred from the Samu
Med division to the respondent's HiTech Divisions which could appro
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priately accommodate these positions.
9.The positions of Regional Operational Manager and the Roodepoort Store
Supervisor were made redundant and the
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single position of Transport Supervisor was changed to
that of Fleet Officer, Rietfontein. This is according to the
respondent's pleadings.
10.At Roodepoort, the Operational Manager, the position held by Mr Brink, and
the position of Operations Supervisor, the applicant's position, were
consolidated into one position to be advertised as: "Transport
Supervisor Roodepoort". According to the respondent, the new position
was on a higher grading than the applicant's position and on a lower
grading than Mr Brink's former position. The remuneration was lower
than what was paid to Mr Brink but higher than what was paid to the
applicant.
11.The consolidation of the two positions caused a saving of approximately
R11 000,00 per month for the respondent. The respondent avers that the
applicant's position became redundant as a result of this consolidation.
The applicant, on the other hand says the position was no more different
than the position held formerly by him.
12.The applicant applied for the position along with four other candidates.
He was unsuccessful and a Mr De Neysen was appointed. This appointment,
the applicant says, is unfair because the functions as set out in the
advertisement for the transport supervisor are exactly the same
functions which he had performed. The applicant did not accept that the
new position was a managerial one as the job description reads:
"Supervisor".
13.Mr Oosthuizen, the respondent's general manager, was not
able to dispute, when it was put to him, that the applicant had
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performed the functions as set out in the advertisement.
14.The applicant, during crossexamination stressed that Mr
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Oosthuizen did not exactly have a detailed knowledge of
the applicant's function. This the applicant argues, supports his
contention that he was unfairly treated.
15.What the applicant could not dispute, was that some of the functions
performed by Mr Brink, which was a managerial position, was on a much
higher scale than those performed by the applicant, and would become the
duties of the new incumbent.
16.The applicant could also not dispute that the latter had six years'
experience in the transport business and had obtained a transport
diploma. Because he was more qualified than the applicant, Mr de Neysen
was appointed and although the duties pertaining to the newly created
post of Transport Supervisor, Roodepoort, on face value, coincides with
the duties pertaining to the post of the applicant in terms of the old
structure, the similar duties were now to be performed in a managerial
capacity and not in a supervisory capacity as was the case previously.
17.The new incumbent had to manage the entire fleet at Roodepoort as well as
that at the Rietfontein Depot including aspects such as the
implementation of a vehicle monitoring system, measurement of
productivity, investigation of optimal vehicle routine, development of
new price models and not only the supervision of control of the daily
fleet activities.
18.The applicant was not in a position to dispute this as the facts show to
the contrary.
19.Mr Oosthuizen and Mr Hall consulted with the applicant on three occasions.
Each meeting lasted, on the applicant's
version, for approximately one hour each. They attempted to pursuade
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the applicant to accept the position of a
JUDGMENT
fleet officer in Rietfontein. The applicant found this
offer unacceptable and declined it. His reasons for declining the offer
was, firstly, that he was inconvenienced and would have had to travel
approximately one hour and 45 minutes longer than usual to Rietfontein.
The applicant lives with his parents in Randfontein and was not prepared
to move closer to Rietfontein. He lived with his parents and felt that
if he left he could no longer support them.
20.Secondly, the applicant contended that he would suffer a severe reduction
in salary of almost R4 000,00. The evidence showed this to be factually
incorrect. The salary which the applicant would earn as a fleet officer
would be approximately R1 000,00 less than he previously earned. It was
also explained that this was due to an amendment of the relevant income
tax legislation in terms of which the applicant would no longer be
entitled to a subsistence allowance which forms parts of his
remuneration and structured as such.
21.The applicant was also offered the opportunity to obtain a diploma in
Transport Management sponsored by the respondent. He would thus be able
to study to improve his qualification at the Rand Afrikaans University
and enhance his chances for promotion. It is of note that Mr De Neysen
had such a qualification which was one of the reasons why he was
regarded as more qualified for the position.
22.Despite the fact that the respondent intended to groom the applicant for a
position similar to that of Mr De Neysen, the applicant refused to
accept the offer. The applicant believed that Mr De Neysen was
appointed by the respondent because he was related to one of the respon
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dent's directors, a fact which was admitted by the
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respondent.
23.This allegation of nepotism flies in the face of the objective facts. The
applicant himself was appointed by his brotherinlaw, who was a manager
at the respondent at the time, a fact which the applicant did not
disclose. Mr Jacobson, the applicant’s brotherinlaw and a former
employee of the respondent, was successful in establishing that his own
services were unfairly terminated by the respondent and therefore the
applicant arfues, the respondent had some form of a grudge against the
applicant.
24.There was no evidence to support the aforesaid. It is highly improbable
that an employer would go to all the trouble to consolidate two
positions just to get rid of the applicant because he was related to a
former employee. This also flies in the face of the reasonable offer of
another position together with sponsored further education which was
offered, to the applicant. It was quite clear that the respondent held
out the prospect for the applicant to be groomed in a new position and
not to get rid of him.
25.The applicant argued that the respondent could have appointed him as an
Incinerator Supervisor at Roodepoort as an alternative to a demotion and
for the same reason as advanced by him and referred to above, he
contended that the respondent's failure to appoint him in this position
was an unfair labour practice.
26.It is common cause that if he was appointed as an Incinerator Supervisor
at Roodepoort he would earn R3 000,00 per month, almost half of what he
would have earned in the Fleet Officers' position at Rietfontein.
JUDGMENT
27.It is further common cause that the applicant would be
required to work nightshifts at the incinerators in Rietfontein and
renders his argument of the extra
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travelling and inconvenience which he put forward in respect of the
Fleet Officers' position, quite disingenuous.
28.In the light of these facts the respondent can hardly be blamed for not
offering this position to the applicant. Furthermore the respondent had
no idea that the applicant was at any stage interested in this position
because the applicant did not even apply for the position or ever raised
it with the respondent.
29.Some time after the applicant was offered the alternative position at
Rietfontein, and after the above arrangement for the position was
entered into, the applicant contacted the respondent, more specifically
Mr Oosthuizen, in order to determine whether the respondent would still
appoint him in the said position. It is common cause that the position
would be held open for a month after determination of his services.
30.The applicant was advised that in the light of the arrangements already
made and in terms of which the respondent reflected a further saving,
the respondent was not prepared to reopen the offer to the applicant
and advised him accordingly.
31.It would be unfair in most circumstances, to offer an employee a position
who declines it and nonetheless undertake that he could at a later stage
apply for the position and this promise is not kept.
32.In the present case, the applicant was adamant that he did not want the
position in Rietfontein. After three meetings which each lasted an
hour, two members of
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management could not persuade him to take up the offer. In unreasonable
circumstances he refuted that his posi
tion had become redundant and insisted on being appointed on a
managerial level.
33.In such circumstances it cannot be said that the failure to offer him a
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position which he rejected on three former occasions, is unfair. Even
if it is unfair, this would be a situation where in keeping with the
considerations expressed in the matter of Johnson and Johnson v CWIU
([1998] 12 BLLR 1209) , the employee would not be entitled to
compensation.
34.Insofar as costs are concerned, the applicant persisted in pursuing a case
without any merit against the respondent.
35.On the other hand I do have to take into account that the respondent had
promised him that it would keep the position of Fleet Officer open for a
month, which offer was basically reneged on. In such circumstances costs
should not be awarded against the applicant.
36.In the circumstances I make the following order:
The application is dismissed. There is no order as to
costs.
__________
E. Revelas
On behalf of Applicant: In person
On behalf of Respondent: Adv. M.J. van As instructed by:
Wentzel, Viljoen & Swart Att.