Sneller Verbatim/MLS
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JS 501/01
12/02/2002
In the matter between
DOROTHEA FRANKEN & 17 OTHERS Applicant
and
MOLLY MOP CLEANING SERVICES CC Respondent
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J U D G M E N T
Delivered on 20 February 2002
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REVELAS J:
1. The respondent, Molly Mop Cleaning Services CC conducts
business in the cleaning service industry. In this
case, it employed several cleaners (approximately 55)
and a supervisor and contracted their services to ABSA
bank in Pretoria. The respondent also employed an
area manager, Ms Steyn. For many years, the
respondent managed to successfully tender for a
cleaning contract with ABSA bank.
1. 1. 2. On 29 August 2000, the provincial property manager
of ABSA wrote to Mr Von Landsberg of the respondent and
advised him of the termination of the cleaning contract
with three months' notice. The respondent was also
given the opportunity to tender for another cleaning
contract with ABSA.
3. On 30 October 2000 the respondent notified to its
employees as follows:
"As you are aware, ABSA head office called for tenders and
gave us the opportunity to tender again for the cleaning
contract.
We hope that we might be successful. We, however, regret to
inform you that if we are not successful this letter serves as a
letter of termination of your services with Molly Mop Cleaning
Services. Your last working day will be 30 November 2000.
(My emphasis)
If Molly Mop be awarded any new contract, you will be
contacted and offered re-employment.
We wish to express our appreciation for your services and wish
you every success for the future."
4. The letter is not addressed to any particular employee
and is not signed by Mr Von Landsberg.
5. This application concerns 18 of the 55 employees whose
service were terminated. These are the 18 applicants
who work the nightshift at the respondent. The first
applicant Mrs Franken,was the supervisor of the 2nd to
17th applicants.
6. The applicants allege that their last working day was
28 November 2000. It is their case that no
consultations were held with them and that the
dismissals were substantively and procedurally unfair.
1. 7. The respondent contends that it had no choice but
to terminate the services of the applicants due to the
fact that another cleaning company obtained the
cleaning contract previously held by the respondent and
there was no more cleaning work for the applicants.
8. Respondent further argued that it had consulted within
the spirit of Section 189 of the Labour Relation Act 66
of 1995, (“the Act”), and therefore the dismissal was
fair, both procedurally and substantively.
9. It is common cause that the respondent paid no
severance pay to the applicants. The respondent
argued that it was not obliged to pay any severance
pay, as it had offered the applicant alternative
employment in Centurion near Pretoria . The positions
offered were similar in nature to the work under the
contract with ABSA, yet the applicants and unreasonably
rejected this offer of alternative employment out of
hand, on the basis that they had to travel further.
10. The respondent argued that the respondent was not
obliged to pay the first applicant severance pay, since
she was offered the position of area manager, which
offer she had also unreasonably turned down.
11. The applicants claim that notice pay is due to them,
since this was not paid to them for the month worked in
November 2000. The respondent argues that the letter
dated 30 October 2000, referred to above (the notice
letter), constitutes a proper notice and the applicants
had worked their last month (November) and received
payment therefore.
1. 12. The individual applicants each earned R780,00 per
month. It is not entirely clear what first applicant,
their supervisor (Mrs Franken), earned per month.
13. Mr Von Landsberg testified that at the beginning of
September 2000, and at the workplace, he advised the
applicants that there was a possibility that the
service contract with ABSA would be terminated. He
offered the applicants work in Centurion, but that
their attitude was that they were not prepared to
travel that far. It is not certain to me whether
he , at that stage, conveyed to them that there were
only five posts available for cleaners in Centurion.
He repeated the offer to the day shift. It follows
that fifty five emplyees (including the applicants)
were offered only five positions.
14. Two of the nightshift employees who are not applicants
in this matter testified on behalf of the respondent.
They confirmed that Mr Von Landsberg had consulted with
them and that the nightshift staff all refused to
accept the positions in Centurion.
15. Mr Von Landsberg said he had also consulted with Mr
Thobejane, the official for SATAWU, who represented the
applicants. According to Mr Von Landsberg four or
five of the staff members were members of SATAWU and
one of the applicants, Paulina Sibanda, was the shop
steward for SATAWU.
1. 16. Mr Thobejane denies that there were any
consultations with him regarding the retrenchment.
According to him the only consultation he had was with
Mr Von Landsberg, was about an unrelated retrenchment,
prior to the one in question. He also negotiated on
behalf of the applicants during wage negotiations.
17. Mr Von Landsberg could not say with any certainty
whether any union dues were deducted from the
applicants' salaries, because they received their pay
slips and he did not keep a copy thereof. I found
this a particularly evasive answer.
18. Mr Von Landsberg also testified that he had a lunch
with Mr Thobejane where the applicants’ positions were
discussed. This was also denied. He did not have the
applicants interests at heart. There are two letters
on record, written by Mr Thobejane, from which it is
apparent that the respondent, or rather Mr Von
Landsberg, was unable to consult with him at the times
that he had proposed. No fixed date was set. There
are no notes of any meetings, which could be provided
by Mr Von Landsberg. Between these two witnesses there
is no trace of a joint consensus seeking attempt.
19. Ms Steyn, the area manager, on three occasions, the
last one being on 28 November 2000, met with the
employees in question and told them abreast of the
developments. She was not called to testify by either
party. Yet, even on the respondent’s version, these
meetings do not assist the respondent.
1. 20. In my view, such meetings, as may have been held,
did not constitute proper consultations. Neither Mr Von
Landsberg nor Mr Thobejane could give my any detail of
what was discussed on behalf of the applicants or in
their interests.
21. In my view there was no proper consultation as required
by Section 189 of Act.
22. The respondent argued that it had complied with the
spirit of Section 189. If I were to find on these
facts, that there was consultation in the spirit of
Section 189 of the Act, in this matter, the whole
section might as well be disregarded.
23. The letter of 30 October 2000 constituted a complete
fait accomplis . The applicants had no choice in the
matter. If they had been consulted they could have
perhaps influenced events. The contract with ABSA bank
was not the only service contract that Mr Von Landsberg
was involved in by virtue of the fact that he was a
member of the respondent.
24. Consultation as envisaged by Section 189 of the Act is
a joint consensus seeking exercise. The letter of 30
October 2000 reflects the attitude of the respondent.
“Bumping” could have been discussed. Alternative
employment in other companies could have been
discussed. The possibility of a new tender and future
reemployment could have been put on the table.
25. It was argued that a letter, which was before me, in
which Mr Von Landsberg pleaded with ABSA to extend the
contract for a month, indicated that he considered
alternatives to dismissal.
1. 26. As the respondents counsel conceded, Mr Von
Landsberg was a businessman and not a missionary. In
my view he wrote that letter out of selfinterest and
not just because he felt sorry for the applicants. Mr
Von Landsberg had no problem with charging his
employees 15% interest on loans to them, through a
company of which he was a director. So much was
subtracted from their salaries as repayment for the
loans, that on 28 November 2000 some applicants
received no money at all.
27. If five positions are offered to fifty five
employees and they were told in unequivocal terms that
only five of them would qualify for the position, or
would be successful in applying for the position, that
would not constifute a genuine offer of alternative
employment to avoid dismissal. I also do not believe
it was properly explained to the applicants that they
would be dismissed unless they accept the offer of five
positions in Centurion.
28. In the circumstances, the respondent is obliged to pay
the applicants severance pay. One week’s wages for
every completed year of service would have been fair.
29. Notice should have been given to employees
unequivocally and in clear terms. The notice was not
unequivocal in this matter. The termination of the
applicants’ services, was conditional upon the event of
a contract not being concluded with ABSA. It is not
open to the respondent on the one hand to argue that
the notice letter was proper notice, and on the other
hand, to argue that it is not a fait accomplis .
1. 30. In the circumstances I find that the respondent
ought to have paid the applicants one month's notice
pay.
31. Relief:
I do not believe that the applicants could be
reinstated. There are no positions left. On the
evidence before me, another service company which has
its own employees obtained the contract with ABSA.
There remains only the question of compensation.
32. The dismissal was substantively as well as procedurally
unfair. Since the dismissal was substantively unfair,
I have a discretion as to how much compensation to
grant.
33. I do not intend to grant compensation for the maximum
amount permitted by the Act. The applicants were not
frank with the court. They denied that Ms Steyn ever
visited them. Ms Steyn did not give evidence,
although several versions were put to the respondent’s
witnesses on behalf of the applicants which she was to
substantiate as if she were called to testify.
Furthermore, the two nighshift employees (who are not
applicants) testified that Ms Steyn did in fact explain
to them that the contract with ABSA would come to an
end.
34. When the applicants received the notice of 30 October
2000, they did not immediately contact a lawyer. They
did however, contact the union official in question,
who did very little by way of assisting them.
1. 35. I gained the impression from Mr Thobejane that he
did not try his best to protect the interests of the
applicants and it is probably because he received no
union dues. It may be that the union is at fault, in
this case, but this should not be taken into account,
at the expense of the respondent.
36. In my view, compensation equal to an amount of six
months' renumeration for each employee would be fair.
37. Insofar as the first applicant is concerned, Mr Von
Landsberg and his secretary both testified that she was
offered the position of area manager but that she
unreasonably refused to accept the position.
38. The first applicant, testified that she discussed the
position of area manager on one occasion (in a garden)
with Ms Steyn, who was going to resign due to
pregnancy, Mr Von Landsber’s secretary. No firm offer
was made to her. The first applicant testified that she
and the respondent’s secretary agreed that she would
not be suitable due to the fact she did not get on
particularly well with Mr Van Landsberg. She denies
that there was a second occasion when the general
manager, who testified to that effect, offered her a
position.
39. What is certain, is that no offer was made in writing
and the offer did not emanate from any proper
consultation process in terms of Section 189 of the
Act. Therefore the respondent was obliged to pay the
first applicant severance pay.
1. 40. The fist applicant also testified that no
consultations were held with her and that on 28
November 2000, she and the other applicants were given
notice. Ms Steyn apparently arrived with the pay
packages and announced that it was their last day of
work. The applicants phoned their attorney whom they
visited the next day and referred a dispute to the
CCMA.
41. However, the referral to the CCMA reflects that the
referral was signed on 28 November 2000 and indicated
who the attorney for the applicants were. This means
that prior to determination of their services, there
was contact with an attorney and the applicants were
aware that their position was precarious.
42. However, it is simply not true that the first time they
heard of their dismissal was on 28 November 2000.
That does not accord with the other evidence and the
probabilities. Ms Franken’s evidence in this regard
was contradictory. What is evident from Ms Franken’s
(the first applicant) evidence is that the individual
applicants waited for events to take their worst turn,
instead of making an effort themselves to avoid the
retrenchments. There should have been some effort
forthcoming from the applicants to indicate at least a
willingness to approach the process as a bilateral one
or to mitigate their losses.
43. In such circumstances, I do not believe that the
applicants are entitled to the maximum amount for
compensation provided for in the Act.
44. In the circumstances I make the following order:
1. 1. The dismissal of the applicants was
procedurally and substantively unfair.
2. The respondent is to pay the applicants severance pay
in an amount equal to one week's wages worked for every
completed year of service.
3. The respondent is to pay the applicants notice pay
equal to one month's wages.
4. The respondent is to pay the applicants compensation in
an amount equal to six months' renumeration, each.
5. The respondent is to pay the applicants' costs in this
matter.
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E. Revelas