IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN CASE NO: J2561/00
2002-02-14
In the matter between
WILLEM JOSEPH DELPORT Applicant
and
PARTS INCORPORATED AFRICA
OF GENUINE PARTS (PTY) LTD Respondent
_________________________________________________________
J U D G M E N T
__________________________________________________________
WAGLAY J:
The applicant was dismissed by the respondent on the grounds
of its operational requirements on 30 March 2000. Applicant
claims that his dismissal was both procedurally and
substantively unfair. The relief sought by the applicant is
compensation. Applicant's dismissal is common cause.
The respondent is burdened with the onus of satisfying this
court that the dismissal of the applicant by it was effected for a
fair reason and in accordance with fair procedure. In this matter
not only did the applicant allege his dismissal did not comply
with Section 189, but that the retrenchment was simply an
excuse employed by the respondent to terminate his
employment, because Knoesen the branch manager at the
branch at which applicant was employed by the respondent,
wanted to get rid of him. Applicant has alleged that his
dismissal was tantamount to victimization or as now argued by
his counsel that it was motivated by ulterior motives.
I do not in this judgement seek to set out in detail all the issues
raised by the applicant which in his mind created the impression
that there was a calculated attempt on the part at least of
Knoesen, to ensure that his employment with respondent came
to an end. In relation to this aspect the evidence of Knoesen,
Espenoza the regional managing director of respondent and the
applicant is relevant. These three witnesses all came across as
honest and reliable witnesses. Yes, they disagreed about various
matters. These disagreements were not disagreements that
were based on any dishonest belief or intention, it related to
perception and belief and the answers given by each one of
them was not such that having regard to the prevailing
circumstances can be said to be dishonest. It is clear that both
Espenoza and Knoesen thought applicant a difficult employee.
Yet I am satisfied that they did not either collectively or
individually seek to conspire or hatch a scheme to rid applicant
from respondent's employ. At the same time the rapidly
changing structures within respondent did create tension within
the workplace particularly when regard is had to the
respondent's avid grabbing of competitors and spitting out
employees once amalgamation had taken place. In these
circumstances it is understandable that applicant would feel
insecure, more so since he is moved from one work station to
another within relatively short periods of time.
Applicant's claims that he was being watched, that he was
requested to make proposals with respect to efficiency and
effectiveness and then his proposals were met with sarcastic
response, his application for senior post was not met with any
response despite his belief that he was qualified for such posts,
and other complaints collectively point to an attempt to
frustrate him. Seen individually though none of these complaints
are out of the ordinary in any work environment. In all these
respects explanation given by the respondent are not only
plausible but to my mind honest and therefore I cannot find that
there was any attempt to victimize the applicant or that the
disagreements created a pattern that served as a motivation to
get rid of him. The fact that his dismissal was not as a result of
any ulterior motive, does not however make his dismissal fair.
While applicant did allege that his dismissal was consequent
upon him being victimized or motivated by other matters, his
case is also that his dismissal was unfair because as recorded in
the supplementary pre-trial minutes, there was on the part of
the Respondent neither a general need to retrench nor a need
to specifically retrench him and that respondent failed to comply
with Section 189 of the Act. In terms of Section 189(1) Once the
employer contemplates dismissing one or more employee on
the grounds of its operational requirements, consultations must
be held with the employees likely to be affected by the
proposed dismissal.
Sub-section 2 then sets out what it is that the parties must
consult about and sub-section 3 places certain obligations upon
the employer regarding the information they should provide the
employees being consulted. This section seen as a whole
contemplates that once the employer believes that he has to
terminate the employment of any employee for operational
requirements, it needs to collectively meet with its employees
within the category of employees from which category it seeks
to minimise the staff complement.
Explaining the above by way of example, once an employer
decides --due to severe downturn in his turnover or that at least
two of his 10 drivers have no work to perform as drivers, he
must inform the drivers collectively that he is considering
reducing his driving staff by two and would therefore wish to
commence a consultation process with all of them. The reason
to meet with all 10 drivers is that there may be amongst the 10
drivers one who may decide that he no longer wishes to remain
in employment and perhaps another may be able to secure
other employment, or still another may decide that he no longer
wishes to continue driving, but wishes to perform clerical duties
and would happily if qualified for the post, assume the clerk's
position which is vacant. It may also be possible that the drivers
tell the employer that they believe the position that obtains is
temporary and for a period of six months they are prepared to
take a drop in salary collectively so that the impact of the loss in
trade is minimized. These are just some examples. What it
demonstrates is that, that in order to be fair consultations had
to take place with all of the employees within the affected
category.
In the matter before this court what we have is Knoesen's
identification that there was one supervisor too many within
respondent's warehouse structure. This is accepted by
Espenoza, his senior. It is the next step which is problematic. In
good faith Knoesen and Espenoza decide that since there is one
supervisor too many and the policy of the company is to apply
LIFO (The retention of skills was not relevant as all supervisors
did relatively the same work) the applicant was the one who
having the shortest service and was the one who would have to
go.
They believed that what they therefore were required to do was
to commence a consultation process with the applicant alone.
This is not the process contemplated by Section 189. Having
identified that the number of supervisors had to be reduced to 5
from 6 because of the changes it wished to give effect to with
regard to returns being referred to various departments, what
the respondent was required to do was to consult with all six of
the supervisors.
The end result may not have been different but that is not the
issue. The issue is that the consultations may have led to
someone voluntarily deciding to no longer continue in the
service or to remain in the position of supervisor. Furthermore,
the respondents stated that there were vacancies within the
respondent's company for which the applicant was not a
suitable candidate. Had the respondent consulted with all of the
supervisors, was one of the others not suitable and willing to
take the vacant post? We do not know the answers to this
question. These are issues which is what is required to be dealt
with in consultations. An employer cannot select an individual
and then say let us talk about how we can avoid your dismissal.
Section 189 speaks of consultation to avoid dismissal, it
contemplates consultations not with an individual from amongst
a category of employees, as such consultations would in fact be
meaningless, because it is generally very unlikely that
discussions could seriously take place to avoid a dismissal if a
prospective retrenchee could suitably be replaced elsewhere.
He would be advised of a transfer then, not a possible dismissal.
In this case the respondent's decision to reduce the supervisors
from six to five was based for good reason. It cannot be said
therefore that there was no need in general to retrench one
supervisor. However, respondent's failure to consult with all of
the supervisors and to select the applicant simply because
respondent's policy dictated LIFO as the criteria tainted the
process. The issue of selection only comes to play when during
the consultation process it becomes evident that dismissal is
inevitable.
Because of respondent's failure to consult with all of the
supervisors I cannot be satisfied that the dismissal of applicant
was substantively fair despite my finding that good grounds
existed to reduce the number of supervisors. This is so because
I do not know that one of the other supervisors might not have
left or apply successfully for the vacant post within respondent's
enterprise.
In the circumstances I am not satisfied that the dismissal of the
applicant was fair. The relief sought by the applicant is
compensation. The granting of compensatory relief is
discretionary. Where dismissal is found to be unfair it does not
automatically mean that compensation should be granted
where the wronged party does not seek reinstatement. This
discretion must however be exercised judicially. In Johnson &
Johnson the labour appeal court held that where the employer
has, having discovered its error, sought to rectify its mistake
and is not given an opportunity go make amends then
notwithstanding the unfairness of the employer's decision
compensation should be refused. This matter does not fall
within that category.
However the above is not the only circumstances in which
compensation can be refused. This court can take into account
other factors: whether or not the respondent had found
alternative employment; the respondent himself; the length of
service etc. Having regard to all these issues, it has not been an
easy decision to make as to whether compensation should be
awarded. What makes the decision even more difficult is that
all of the witnesses who appeared before me were honest and
helpful. The respondent's witnesses, believing their actions
were proper and correct, and the applicant and his witness
properly holding the view that the respondent was incorrect.
Had the parties simply taken or heeded what was said by
Croucamp who gave evidence for the applicant, this matter
would have been resolved much earlier. He quite properly was
satisfied that there was no victimization and also satisfied that
the respondent had not correctly complied with Section 189 in
affecting the dismissal. In the end I believe that the balancing of
the scales requires that applicant should be granted
compensation consequent upon his unfair dismissal. The
amount of compensation I am obliged to give having decided
that compensation should be awarded, is an amount equal to 12
times the monthly salary applicant earned at the time of the
dismissal.
At the time the applicant was dismissed he earned as it appears
to be common cause in the pre-trail minute R9 500 per month.
Applicant however argued that respondent had underpaid him
and that his gross salary should have been an amount of
R13 500 per month. This was not pursued by counsel for the
applicant in argument and quite properly so. In this regard the
evidence given by the applicant was that an agreement was
concluded between him and Espenoza that he should receive an
amount of R13 500 per month when he was transferred to the
dispatch department. Espenoza denied that such agreement
Croucamp's evidence in this respect was not helpful, while it is
true that applicant in correspondence forwarded to Espenoza
complained about the failure to comply with the agreement
Espenoza's response was that no agreement was concluded. If
anything and at best for the applicant he would only have
agreed to receive an increase in salary after a three month
probation period.
With regard to this issue I do not know where the truth lies.
Both versions are equally believable, however the onus in this
respect is upon the applicant to satisfy me that such agreement
was actually concluded and I am not satisfied that this was so.
In the circumstances I am satisfied that the amount of
compensation must be calculated on the basis of applicant's
salary of R9 500.
This then brings me to the issue of costs. This trial should have
lasted not more than one day. It has lasted many more. Most
of the time was spent dealing with the issue of victimization but
cost in this court does not as a matter of course follow the result
in that the court has a discretion to grant cost based on equity
and law. I am satisfied that in this matter had the issue of
victimization not been raised substantial costs would have been
saved. Having regard to the issues raised by the applicant and
not forgetting the amendment sought by the applicant which I
shall deal with later and the peripheral issues I am satisfied that
there should be cost awarded against the respondent, but that
these costs should be limited to 25% of the total party and party
bill.
With regard to the amendments made by the respondent to the
effect that the respondent breached the agreement in failing to
offer applicant a vacancy within 6 months of this retrenchment
which was for a similar position, here again applicant was
required to satisfy the court that there was a breach. It failed to
do so. On the evidence before me there was in fact no breach. I
mention this because this is one of the issues which I have
taken into account in considering the determination of the issue
of cost.
In the result I make the following order:
1. The dismissal of the applicant was unfair.
2. Respondent must pay the applicant compensation in the
amount of R114 000.
3. Respondent is liable for 25% of applicant's cost of suit.
________________
WAGLAY J