IN THE LABOUR COURT OF SOUTH AFRICA
(Held at Johannesburg)
Case
No: J5460/00
In the matter between:
G VISSER First Applicant
NATIONAL EMPLOYEES’ TRADE UNION Second Applicant
and
HENRED FRUEHAUF TRAILERS (PTY) LTD Respondent
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JUDGMENT
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JAMMY AJ:
1. The First Applicant (“the Applicant”) having been what he acknowledged in his
testimony to have been fairly retrenched by the Respondent some two months
earlier, was reemployed by it on 19 June 1998. In his position as charge hand in
the Respondent’s paint store, he was assigned various duties, one of which was as
assistant to the production foreman, one McLennan.
2. There is confusion as to the date upon which, he alleges, he was again retrenched,
this time unfairly, in the year 2000. In the referral, prepared by his Trade Union,
of the dispute to the Metal and Engineering Industries Bargaining Council for
conciliation, it is alleged to have arisen on 5 September 2000. In fact, the
Applicant testified, he inferred and accepted that he had been dismissed in the
course of a meeting with management representatives on 25 August 2000. The
substantive fairness of that retrenchment, if in fact it is found to have occurred, is
not contested by him. No procedures were followed however, which would have
rendered the process a proper one in the context of Section 189 of the Labour
Relations Act 1995.
3. The Respondent however, denies that the Applicant was at any time dismissed at
all. Following an initial consultation with the Applicant on 25 August 2000, the
Respondent alleges, which was the first step in the required procedure, the
Applicant voluntarily elected to accept a retrenchment package and leave the
service of his company, thereby rendering any further consultative action on its
part unnecessary. There had been nothing unfair or improper in its conduct to that
stage.
4. As part of a reorganisation shortly after the Applicant’s reemployment, the
Respondent relocated the paint shop in its Wadeville premises to another locality,
known as Reef, some 4 kilometres away. Logistical problems which then emerged
however, necessitated its return in toto , to Wadeville some time later. When that
happened, and in the context of an economy driven general downsizing of its
operations, it identified a surplus at supervisory level of its staff complement in
the paint shop. One of the possible options considered by management in that
regard, as a solution to their problem, was the retrenchment of the Applicant,
whose service with the company was significantly shorter than the two other
potential candidates in the process, in the context that his position had become
redundant.
5. On 25 August 2000 therefore, the Respondent’s then General Manager, Mr S
Leibach, convened a meeting. The Applicant was informed by his foreman that he
was to be in Mr Leibach’s office at 11.00am. He was told that he could, if he
wished, be accompanied by a representative, but not knowing the purpose of the
meeting, he did nothing in that regard. The meeting comprised Mr Leibach, his
production manager, Ms D Muller and himself. At the outset, he was again asked
if he required a representative. When he asked why, he was, the Applicant
testified, told that the company could no longer afford him in his present position
and could not create another position for him. He was asked if he wished to make
any representations and indicated that he would be prepared to accept a reduced
salary in the same position. This was rejected. The possibility of his appointment
as a spray painter was briefly examined but, he says, he was told that he was not
as a spray painter was briefly examined but, he says, he was told that he was not
adequately qualified. Nothing further was said, no date was set for any further
meeting and he was not informed of a date upon which his employment would
terminate.
Crossexamined by Mr C Hinds, representing the Respondent, the Applicant
conceded that, at the conclusion of the meeting, Mr Leibach said that he would
revert to him and that he was himself invited to come back with alternatives which
would then be considered. As far as he was concerned however, he accepted that
he was “out”.
6. 25 August 2000 was a Friday and when he reported for work on the following
Monday, he found that his various duties had been taken over by the foreman,
McLennan and another employee, a certain Spandiel. There was no work for him
to do and with the permission of his foreman, he went home some two hours later.
7. Questioned about a further discussion at or about that time which he had with Mr
Leibach, the Applicant agreed that he had requested details of a severance
package. When it was put to him that what he had said was that he could “see
where this was going”, and that they “Should not waste time but should give him
his package and he would go”, the Applicant’s response was vague and
prevaricative. He could not recall this, he said, but could not dispute it, following
this, after apparent reconsideration, with a denial.
8. It was also correct that on the Tuesday, he had reported late and worked only
briefly. This again was because there was nothing for him to do. He had asked
for, and Mr Leibach had given him, a rough estimate of his package, he had been
requested to obtain a tax directive, and on 5 September 2000, he was given a letter
confirming his retrenchment package, with the exclusion of leave pay, bonus pay,
notice pay and wages due, all of which were eventually paid to him. He did not
return to work thereafter. It was common cause, in fact that his last full working
day was 25 August 2000.
9. There is little in dispute between the parties as to the substance of the meeting of
25 August 2000. The testimony of Mr Leibach and Ms Muller was mutually
corroborative in that regard. It was explained to the Applicant that a reduction in
salary was not practical because it was his post which had become redundant. It
was the Applicant himself who had discounted the possibility of his appointment
as a spray painter because, on his own assessment, he was not adequately
qualified. The issue of other possible alternatives was left open with a further
invitation to the Applicant to revert with suggestions and a commitment by the
company to give the matter further consideration. It was correct that no further
meeting date was fixed this would have been convened in due course. At no
stage of the meeting however, was the Applicant informed that he was dismissed
or a termination date discussed or established. As far as the company was
concerned, the consultation process had been commenced, was in progress, but
had not been completed.
10. That process however, Mr Leibach testified, was aborted by the Applicant in their
subsequent discussion, to which I have made earlier reference. The Applicant had
now unequivocally and of his own volition decided to accept a package and
terminate his employment. At no stage had that termination been effected by the
Respondent. As a consequence of this development, a tax directive was obtained,
his severance package, of which he had, at the Applicant’s request, made a rough
calculation, was finally determined, and the Applicant left the service of the
company of his own accord.
11. The subsequent involvement of the Second Applicant, the Trade Union, was, it
emerged from the evidence, on its own initiative following a report to it by
another employee. The Applicant himself, he testified, was not acquainted with
trade union procedures.
12. It is a trite principle of employment law that the onus of proving dismissal must be
discharged by the party alleging it. Where there is a dispute of fact in that regard,
it must be determined on a balance of probabilities. Where there is no radical
dispute of fact, but rather an issue of inferences to be drawn from common cause
aspects, the law is equally clear. It was succinctly stated in
Govan v Skidmore 1952(1) SA 732 (N)
where, at p. 734, the learned judge said this:
“... in finding facts or making inferences in a civil case, it seems to me that one
may ... by balancing probabilities select a conclusion which seems to be the more
natural, or plausible, conclusion from amongst several conceivable ones, even
though that conclusion be not the only reasonable one.”
13. The Applicant says, and the Respondent’s witnesses acknowledge, that he was
shocked and upset by the substance of the meeting on 25 August 2000. His
perception may well have been, in the circumstances, and as he put it, that he was
being disposed of. That perception, however, is not a legally relevant criterion. He
does not dispute that he was not, at any stage, informed that he had been
retrenched and was being dismissed. The Respondent’s evidence as to what
occurred at the meeting has not been controverted in any material respect and
those facts, in my view, do not support the inference which the Applicant seeks to
draw from them. Mr Leibach’s evidence as to what occurred in their subsequent
discussion is to my mind entirely credible and emphatically refutes the contentions
which the Applicant now asks the Court to accept. The Applicant acted
precipitately. Had he allowed the process to run its course and then challenged
either its adequacy or the Respondent’s bona fides in applying it, that may have
been a different matter. He did not do so.
14. In the result, I find that the Applicant has failed to prove that he was at anytime
14. In the result, I find that the Applicant has failed to prove that he was at anytime
formally dismissed by the Respondent and his claims must therefore fail.
I accordingly make the following order:
1. The application is dismissed with costs.
2. The First and Second Applicant’s, jointly and severally, are to pay the
Respondent’s costs.
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B M JAMMY
Acting Judge of the
Labour Court
of South Africa
Date of hearing: 4 th and 5 th February 2002
Date of Judgment: 7 th February 2002
On behalf of the Applicant: Mr M Landman
On behalf of the Respondent: Mr C Hinds