IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG CASE NO: J2526/99
In the matter between:
CHEMICAL WORKERS INDUSTRIAL UNION First Applicant
SANGWENI AND OTHERS Second and further Applicants
and
LATEX SURGICAL PRODUCTS (PTY) LTD Respondent
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JUDGMENT
___________________________________________________________
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JAMMY AJ
1. The hearing of this matter was an extended one and the
evidence adduced substantial. To traverse it in detail has
however been rendered unnecessary by the subsequent
submission by the legal representatives of the respective parties,
Advocate C Orr representing the Applicants and Mr A Soldatos,
the attorney for the Respondent, of comprehensive heads of
argument which have been of considerable assistance to this
Court in its assessment and determination of the salient aspects
of the dispute.
2. The Respondent conducts the business of the manufacturing and
distribution of condoms and surgical and examination gloves. An
auditor to the company, Mr H B Farber, testifying as to the
financial position of the company in 1998, traced a pattern of
increasing financial loss in the immediately preceding years. As
at the financial year ending 30 September 1996, the Respondent
had sustained a loss in excess of R9 000 000. In the next
financial year the loss approached R13 000 000 with turnover
having decreased, as against the immediately preceding year, by
some R3 000 000. The pattern continued during 1998 and by
September 1998 an accumulated loss had been sustained by the
Respondent in the sum of R16 153 229.
3. A substantial drop of between 8% and 9% in the gross profit of
the Respondent during the period 1996 to 1997, Mr Farber
explained, was due to defectively manufactured goods with a
concomitant increase in manufacturing costs. The Respondent’s
problems were exacerbated by a disputed claim by the Southern
Metropolitan Council for gas charges in an amount of
approximately R3 400 000, leading to legal action which
however, eventually became settled. A further aggravating
factor, in the context that the Respondent’s business was entirely
structured on tenders invited and submitted, was the increasingly
competitive activity of its competitors whose tenders were based
on significantly lower manufacturing costs than those prevailing
in the Respondent’s operations. A tender to the Western Cape
Provincial Administration had been lost and a new contract with
the state appeared to be in jeopardy when assessed against
competitive tenders in comparison with which its own fared
poorly. What was described as the turmoil in financial markets
and foreign currencies, resulting in the substantial depreciation in
the value of the Rand and a resultant increase in interest rates,
were further contributors to what had become a desperate state
of affairs.
4. Evidence was adduced through the Respondent’s witnesses that
the Respondent’s situation at that stage was exacerbated by a
protracted wage-related strike embarked upon by the individual
Applicants and which radically affected the Respondent’s ability
to generate turnover. During the latter years of the decade and
in an effort to alleviate its financial difficulties the Respondent
had involved an entity known as Omnimed (Pty) Ltd in the
management of its business operations and it was now envisaged
that the examination gloves operation of the Respondent would
be acquired by another entity, either Omnimed or an unidentified
Malaysian investor who appeared however, to be more interested
in the acquisition of the condom manufacturing sector of the
business. The contribution to turnover which had historically
emanated from the manufacture of surgical gloves had
decreased as the Respondent lost its share of contracts for their
supply and in the result the majority of employees engaged in
the testing and packing area related to those gloves, the sales of
which had decreased by approximately three hundred thousand
pairs per month, were manifestly surplus to its needs.
5. The prevailing malaise inevitably spread to other sectors of the
Respondent’s manufacturing business, a duplication becoming
evident in quality control cleaning and maintenance operations.
The necessity for the possible out-sourcing or indeed the total
termination of these “support” services became increasingly
possible.
6. The conspectus of this evidence, illustrating an excessive number
of employees in the service of the Respondent and particularly in
the cleaning room and in the testing and packing areas of its
operations, was at no stage of these proceedings materially
disputed by the Applicants and I do not propose to dwell
unnecessarily on this aspect of the matter. The cold economic
factors directing the process, although exhaustively examined in
the course of cross-examination on behalf of the Applicants, have
to my mind been unarguably established and the necessity for
some form of radical action to address what was an increasingly
deteriorating state of the Respondent’s financial affairs, does not
seem to me to have been open to question.
7. There is a plethora of authority in these Courts that, provided
that its prerogative to do so is exercised in good faith, an
employer is best placed to assess and determine the state of its
affairs and the nature and course of any remedial action which
may thereby be indicated. Such are commercial decisions with
which, in the absence of mala fides, Courts will be loathe to
interfere. See, for example -
Steyn and Others v Driefontein Consolidated Ltd t/a West Driefontein
(2001) 2BLLR 239 (LC)
8. In these circumstances, I have concluded that the challenge to
the substantive reasons for the retrenchment of the individual
Applicants, to the extent that it is directed to the commercial
rationale underlying it, cannot be sustained and I turn now to
consider the alleged procedural defects in the exercise which are
based, in essence, on the contentions that the Respondent failed
to comply with the constituent requirements of Section 189 of
the Labour Relations Act 1995 (“the Act”). The company had, it
is alleged, made a final decision to retrench prior to embarking
on consultations with the First Applicant and did not, through the
medium of such consultation, seek to reach consensus on
appropriate measures to avoid the dismissals, to minimise their
number, to determine their timing and to mitigate their adverse
effects. There was no consultation, it is contended, regarding the
reasons for the dismissals, alternatives thereto, the number of
employees to be affected and the basis of their selection as such.
In short, the fundamental statutory requirement of full, effective
and proper consultation with the First Applicant in its capacity as
the collective bargaining agent of the individual employees
affected by the exercise, was not met.
9. Finally, the Applicants contend, quite apart from the defects in
the implementation of the programme, the dismissals in question
were automatically unfair in that they “involved an infringement
of the Second and further Applicants’ fundamental right to belong
to a union”.
10. The Applicants properly draw attention in their submissions to a
line of cases in the Labour Courts which have alluded to the fact
that fair retrenchment does not entail mechanical compliance
with Section 189 of the Act on a checklist basis. What the section
does is to provide guidelines for the equitable implementation of
the process. In -
Sikhosana and Others v Sasol Synthetic Fuels (2000) 21ILJ 649 (LC)
Brassey AJ, at page 655, commented thus:
“It cannot be assumed that every breach of s189 necessarily makes the
retrenchment unfair: Every invalid dismissal will doubtless be unfair but,
as I have tried to make clear, not every dismissal in conflict with the
section will necessarily be – or be treated as – invalid. It would be even
more dangerous to assume that every retrenchment in compliance with the
section is necessarily fair. Section 189, which, (with one exception of no
relevance here) deals only with matters of consultation, is obviously not
intended to be exhaustive. A Court determining the fairness of a
retrenchment must consider, in addition to the matters for which the
section provides, whether the employer really needed to retrench, what
steps (it) took to avoid retrenchment and whether fair criteria were
employed in deciding whom to retrench. Compliance with s189, in short, is
neither a necessary nor a sufficient condition for the fairness or unfairness
of the applicable act of retrenchment. The section gives content and
colour to fairness in retrenchment and its significance as such should not
be underrated; but ultimately it provides only a guide for the purpose, and
cannot be treated as a set of rules that conclusively disposes of the issue
of fairness”.
11. Pursuant thereto a sequence of meetings followed in which the
Applicants acknowledge, significantly in my view, that the parties
“consulted, or attempted to consult”. These took place on 1 July,
19 August, 4 December, 10 December and 14 December 1998
and on 4 January, 8 January, 13 January, 19 January, 8 February
and 12 February 1999. There was little consensus in their
context. But notwithstanding energetic attempts by the
Applicants, both in the course of cross-examination and in their
submissions, to characterise the attitude of the Respondent
throughout as illustrating bad faith and a devious and
manipulative approach to the issues in question, I am not
persuaded that this is what emerges.
12. The fundamental premise in the Applicants’ challenge to the
fairness of the procedure is that, notwithstanding the motions of
consultation seemingly observed by the Respondent during the
material period, the decision to retrench upon its own terms and
conditions had been taken even before the invitation to the union
to embark upon that process was conveyed.
13. The sequence of exchanges between the parties as chronicled in
the pleadings and documentation in this matter however, does
not support that conclusion and it is apposite, in my opinion, to
allude in that regard to:-
Fletcher v Elna Sewing Machines Centres (Pty) Ltd (2000) 21ILJ 603
in which, at 614 the view was expressed that the requirement of
consultation at the contemplation stage, will –
“… more often than not prove to be a lofty ideal, acknowledged in principle
but compromised in practice. In my perception, there can be few
employers who, having identified, as they are fully entitled to do, the
necessity for a valid and bone fide reason to reorganise, restructure or in
some other manner, redefine their business operations, will not have
decided in principle what they perceive is the optimum method of doing so.
What I consider to be the legitimate purpose of consultation with
employees who might thereby be affected therefore, is not to assist them
in making up their minds, but to determine, by way of consensus, whether
there is any practical and viable basis for changing them. There is, to my
mind, nothing unfair in that concept. In its broad context, it is a realistic
and prevailing phenomenon of commercial life”.
14. What is of course required by the broad concept of consultation,
is an attempt by the parties to reach consensus with regard to
the various elements of the retrenchment process, but not
consensus itself. Agreement on those issues is not a prerequisite
to the implementation by the employer of the exercise in
question. It is sufficient that all relevant aspects of the matter be
canvassed in the course of the interaction between the parties
and that each of them be given a full and proper opportunity to
engage thereon. It is when that opportunity is not afforded or
where it is frustrated by the approach or the conduct of one or
the other of them, that the procedure will be flawed. See, in that
regard -
Johnson & Johnson (Pty) Ltd v Chemical Workers Industrial Union
(1999) 20 ILJ 89
in which the Court commented that –
“The achievement of a joint consensus seeking process may be foiled by
either one of the consulting parties”.
This would occur where one of the consulting parties –
“... may do it by refusing to take part in any of the stages of the
consultation process, or by deliberately delaying the whole process .. It
may also appear that any one of the parties simply went through the entire
formal process with no intention of ever genuinely reaching agreement on
the issues discussed …”
Referring to the inappropriateness of the “checklist” approach to
Section 189, the judgment continued:
“The proper approach is to ascertain whether the purpose of the section
(the occurrence of a joint consensus seeking process) has been achieved
… If that purpose is achieved, there has been proper compliance with the
section. If not, the reason for not achieving the purpose must be sort … If
the employer was not at fault and did all it could, from its side, to achieve
the kind of consultation referred to above, the purpose of the section would
also have been achieved”.
15. It is the Respondent’s contention that it was precisely that
process of frustration and delay, as evidenced by the minutes of
the meetings in question, upon which the First Applicant
embarked. This was evidenced, inter alia, by the First Applicant’s
intransigent insistence during a critical period of the consultation
process, that the wage dispute between the parties, upon which
the strike action embarked upon by the individual Applicants was
based and which served to exacerbate the already critical
position in which the Respondent found itself, be first resolved
before the First Applicant was prepared to pursue the
consultation process insofar as it related to the envisaged
restructuring and retrenchment. A further example of this
obstruction on the part of the First Applicant was its refusal to
participate not only in the consultation process relating to the
selection of the individual employees to be retrenched but in the
evaluation process invoked, in what the Respondent contends
was absolute good faith, to identify them. The First Applicant had
initially acknowledged the sensitive skills requirements, in the
broad public interest, of the Respondent’s manufacturing
operations and which would justify a deviation from the general
principle of LIFO in that selection process but, in the end result,
reneged on that acknowledgement and reverted to the stubborn
insistence that, all other considerations apart, LIFO be applied.
16. The involvement of the outside agency TNMC CC in the conduct
of the actual evaluation process was preceded by an invitation to
the First Applicant to attend a preparatory meeting with the
consultant involved, a certain Ten Nabel, in order that the
process might be properly explained. The First Applicant’s
attitude was that it would not participate in any such procedure
whilst the strike persisted and its members consequently refused
to participate personally in the process, with the evaluation
thereafter necessarily having to be made by the agency on the
basis of what were, insofar as material factors were concerned,
objective criteria submitted to it in the form of employee records,
performance assessments and so forth.
17. As I have already indicated, a detailed analysis of the extended
cross-examination of the Respondent’s witnesses, exhaustively
traversing, in the “checklist” context, the Respondent’s conduct
in relation to each element of the requirements of Section 189 of
the Act, is to my mind neither practical nor necessary and nor, in
the same context, is a critical dissection of the exchanges
between the parties in the course of the eleven meetings which
have been chronicled. The state of affairs emerging therefrom
was eventually summarised, accurately and fairly to my mind, in
the final communication by the Respondent to the First Applicant
on 16 February 1999. That letter, transmitted by telefax, was a
lengthy one but in the context of its summation of the interaction
between the parties and their respective positions at that stage,
it is a document of such material importance as to merit its
incorporation in this judgment in full.
“RESTRUCTURING\LATEX SURGICAL PRODUCTS
1. As you are aware, the company and your union have, since approximately June
1998 been involved in ongoing discussions, consultations and meetings with a
view to restructuring the company following its progressive losses in the order of
R14 million since its incorporation in 1990. During the last financial year, the
company sustained a loss in the order of some R2 million which has, effectively,
been a repetition of the dismal performance which it has illustrated over the last 9
years.
2. Numerous consultations were held with yourselves between the period June
1998 to February 1999, during the process of which:
2.1 You were provided with all financial information, balance sheets, income
statements and cash flow projections;
2.2 You provided us with a report which we completed timeously and satisfactorily in
accordance with your requests;
2.3 You, regrettably, adopted a stance throughout the consultations that you would
only meaningfully participate in the consultation process once the dispute on
salaries and substantive terms and conditions of employment had been agreed
upon.
3. On the 16 th November 1998 your members engaged on protected
strike action, which strike action endured up until 1 February 1999. During the
course of the strike action embarked upon by your members you were, once
again, invited to participate in the consultations with a view to bringing same to
some type of finality. You adopted a course, during the strike action, which was
some type of finality. You adopted a course, during the strike action, which was
largely to the effect that until such time as the strike action had ceased, you
would not be prepared to meaningfully consult on behalf of your members on the
proposed restructuring of the company. We were at pains to point out to you that
the restructuring of the company was in no way linked to the strike action
embarked upon by your members and, in order to determine a fair and proper
assessment of the skills of all employees concerned together with their general
worth to the company, it was proposed that an independent evaluation be
conducted of each employee’s skills, educational levels and general performance
and attitude towards his\her work which would include the experience levels of
each employee. It was pointed out to you that this process was essential in order
that we determine a fair and objective assessment of each person, particularly
having regard to the interests expressed by a potential investor in the business as
well as basic and fundamental legal requirements. You were invited to sit and
meaningfully participate in this process in order to ensure transparency and to
ensure further that the interests of your members were protected and in fact
represented during the course of the assessment aforesaid. Regrettably, you
refused to accept our invitation and we were left with no alternative but to conduct
the assessment without your input and contribution.
4. The assessment was duly conducted during January 1999 over a
period of some two weeks. During the course of this process, each and every
employee was assessed on his\her:
4.1 Educational qualifications;
4.2 Special skills with regard to the business;
4.3 Absenteeism record, disciplinary record and years of service with the company;
4.4 Ability to be engaged in multiskilling activities;
4.5 Overtime record and willingness to cooperate in this regard; and
4.6 General conduct and demeanour during the interview.
5. In addition, and to a limited degree, the general willingness of the
employee to assist the company through these difficult and trying times was
taken into consideration in assessing the suitable person to be retained for one or
more particular task or duties.
6. Subsequent to the completion of the evaluation exercise, a further
consultation was scheduled for the 2 nd February 1999. Regrettably, the union
failed to honour its commitments to attend this consultation and when we
enquired of the union as to why it had not honoured its obligations, the reply
forthcoming was that it had forgotten to attend this consultation. Having given the
union the benefit of the doubt, a further consultation was subsequently arranged
for the 8 th February 1999. During the course of this consultation:
6.1 The company’s intended course of action was itemised and specified;
6.2 A list of names of those employees who would be retained, based on the
aforementioned criteria, was provided to the union;
6.3 The union was invited to submit counterproposals with regard to the list of
employees which the company proposed retaining;
6.4 The severance package of one week’s remuneration for each completed year of
service or part thereof which any affected employee had had with the company
was proposed, coupled with full employer and employee contributions to the
Pension Fund;
6.5 An assurance was given that any employee who stood to be effected as a result
of the company’s proposed course of action would be provided alternative
employment by Workforce (Pty) Limited, a subcontracting concern with which the
company has had an ongoing relationship for some time now. The assurance
was given that whenever a situation arose where the service of such an
employee would be required, Workforce (Pty) Limited would duly liase with the
employee concerned with a view to him\her acquiring such a job provided that he\
she had the necessary skills and ability to deal with the task at hand;
6.6 Proper and adequate letters of reference would be given to each employee who
stood to be effected as a result of the company’s proposed restructuring.
7. A further meeting was arranged for Friday, 12 February 1999 during
which the union would provide the necessary feedback.
8. On the 12 th February 1999 Mr Magqaza attended at the company’s premises and
indicated that the union was not prepared to involve itself further in the
consultation process unless and until the company stringently applied the
principle of last in – first out. The company, in return, indicated that having regard
to the precarious position of the business, skills retention was of paramount
importance and in most instances would supersede the principle of last in – first
out. With that, the union indicated that it no longer wished to be involved in the
process, proceeded to indicate that it would declare a dispute with the company
and then proceeded to leave the company’s premises forthwith.
and then proceeded to leave the company’s premises forthwith.
9. It is regrettable that the union has adopted such a stance, particularly having
regard to the difficult financial situation in which the company finds itself coupled
with the continued attempts on the part of the union to delay and frustrate the
consultation process. As such, and in the light of the deadlock which has now
arisen between the company and the union, we have no alternative but to
implement our proposals, as we hereby do. You are accordingly hereby notified
that:
9.1 With effect from 16 February 1999, the employment of those of
your members whose names appear on annexure “A” hereto and being
transmitted simultaneously herewith, will be terminated. Your members enlisted
on annexure “A” hereto will accordingly receive:
9.1.1 payment in lieu of notice – 14 days or in terms of the employment contract;
9.1.2 1 week’s remuneration for each completed year of service or part thereof which
such employee has enjoyed with the company;
9.1.3 all contributions (i.e. employer plus employee) to the Pension Fund;
9.1.4 accrued leave pay.
10 Those members who have been the subject of disciplinary action
over the last week due to the alleged misconduct during the course of the strike
are not effected by this notice at this point in time. The status of their
employment will be determined once the chairman of the disciplinary hearing has
provided us with his findings in that regard. Should any employee whose name
appears on annexure “A” hereto not be dismissed for misconduct following the
conclusion of his\her disciplinary hearing, his\her employment will be terminated
for the reasons of our operational requirements with effect from the day
immediately subsequent to which the chairman of the disciplinary hearing hands
down his finding.
11 By way of some background, we illustrate the company’s position to
be thus:
11.1 Contractors will be retained on the condom nightshift section having regard to
the fluctuating needs and requirements which necessitate an increase or in fact
minimising of labour on very short notice. Should any affected employee meet
the criteria and express a willingness to work on the night shift condom section of
our operations, we will make the necessary arrangements for that person to be
interviewed by Workforce and to acquire a position with it;
11.2 The status quo will be retained with regard to engaging contractors on the
examination gloves for the same reasons as recorded above;
11.3 The biggest area to be effected in our business is that of testing and packaging
for surgeons gloves. As you are probably aware, a significant amount of the
government contracts have been lost or shared with other companies and whilst
we had previously been targeting one million pairs of gloves per month, this
target has now been reduced to 650 000, almost halving itself. This necessarily
means that half the amount of labour is required in that section;
11.4 The carousel machine has been dispensed with the result that instead of cuffing
of a glove being conducted separately and distinct from testing, the process has
now become integrated with the result that separate “cuffers” are no longer
required.
11.5 Having regard to the fact that the surgeon glove machine is no longer going to
run at full and optimum levels, those persons previously engaged on that
machine will either be transferred by virtue of the process of multiskilling\multi
tasking or, alternatively, have their position declared redundant due to our
operational requirements.
12 The following alternatives were considered during the course of the
process and the reasons for rejecting such alternatives follow:
12.1 THE QUESTION OF SHORT TIME
12.1.1 this was considered but was not regarded as being feasible due to the following
factors:
12.1.1.1 not all personnel have the necessary skill to combine cuffing, testing and stripping
operations;
12.1.1.2 the administrative and supervisory functions of a small group are far easier and
more manageable with the result that far more investments can be obtained with
a smaller workforce;
12.1.1.3 it is essential that an element of continuity be maintained from a production and
quality control point of view.
12.2 ELIMINATING OF THE USE OF CONTRACTORS
12.2.1 all that is required of the company with regard to contractors is the aspect of
quality control. No personnel management is necessary and to the extent that
there is nonperformance on the part of any staff, the burden in this regard rests
with the contractor. This proves to be a huge benefit to the company which can
concentrate on its business, namely the manufacture of latex related products;
12.2.2 contractors have ensured that whenever necessary, overtime will be worked.
There has been a concerted refusal by numerous permanent employees to work
overtime as and when required, notwithstanding the fact that the needs and
exigencies of the company’s operations required same as a matter of urgency;
12.2.3 having regard to the fluctuating requirements and the production process, the
engagement of full time employees is not a viable proposition.
12.3 THE ISSUE OF LONG LEAVE
Financially and for the reasons set out above, this is not a meaningful alternative.
Furthermore, skills unless continually exercised are inevitably lost with the result
that the company’s operations become impeded and hampered to a significant
degree.
that the company’s operations become impeded and hampered to a significant
degree.
13 Please bear in mind that the company’s financial position is
extremely difficult and that the company has not been able to afford the luxury of
time. We have endeavoured, where it has been possible to accommodate the
union and to ensure that the union consults with us in a proper and meaningful
fashion. We have endeavoured to consult with the union since June 1998 and
really have made no progress in this regard with the result that we are left with no
choice but, having resulted in the deadlock which has arisen, pursue the
aforementioned avenues without reaching any agreement.
14 Notices of termination of employment have been served on affected
employees during the course of this morning.
18. The sole and only response from the First Applicant on the same
date, was a telefax baldly reading thus:
“RE: DECLARATION OF A DISPUTE
We are hereby inform you (sic) that we are declaring a dispute on the
basis that the company unfairly retrenched our members, and refused
input by the union on selection criteria. We are therefore left with no
option but to refer the matter to CCMA for conciliation”.
The letter is signed by Bongani Magqaza, the union organiser who was its
principal representative throughout the consultation process.
19. The First Applicant seemingly saw no necessity to record its
rejection of or any dispute with any element or aspect so
comprehensively traversed by the Respondent and it is to be
noted as a matter of some significance, in my view, that Mr
Magqaza was not called to testify in this trial on behalf of the
Applicants.
20. Nor for that matter did any other witness for the Applicants
present viva voce evidence for the assistance of this Court other
than Ms Z Vuma, the expert called to rebut the expert testimony
adduced on behalf of the Respondent with regard to the
evaluation process utilised in the selection of the individual
employees to be retrenched. Ms Vuma’s testimony was
premised essentially on the submission that the purpose of the
evaluation exercise and by whom and how it was to be
conducted, must of necessity be communicated to those to
whom it is to be applied. In answer to a question from the Court
however, she explained that the evaluation process did not
require the consent of those individuals but merely their
awareness of it. She appeared ambivalent in that context
however in the course of further testimony.
21. Questioned by Mr Soldatos, Ms Vuma stated that she was not
aware that the individual Applicants in this matter had refused to
participate in the process and conceded that, in those
circumstances, it was impossible for the Respondent, or TNMC, to
apply what she had referred to as “best practice” in that
situation. It was fair, she said, for the company to have sought
the co-operation of the union and its individual members in the
independent assessment to be conducted under the auspices of
TNMC and she was unable to comment meaningfully on whether
or not it had been possible for the Respondent to communicate
with the individual employees concerned. Analysing the specific
criteria applied in that process, Ms Vuma acknowledged that
qualification level was an accepted criterion, as were special
skills. It was correct that performance record, discipline and the
question of absenteeism were factors generally taken into
account. The subjective criteria of willingness and motivation
however were not generally used in assessments of this nature.
Skills could be assessed by a competent supervisor able to
provide appropriate feedback to the assessor. In the end result
however, she stated, the criticism which she directed at the basis
of the expert evaluation carried out on behalf of the Respondent,
was premised on the assumption that there had been willing
participants in the process. That, she acknowledged once again,
had not been the case and in the broad context in which her
testimony was adduced, it did not serve, in my opinion, to
diminish the probative value of the Respondent’s evidence in
support of the selection process implemented by it.
22. For all of the reasons with which I have dealt thus far in this
judgment therefore, I have determined that the allegation of
procedural unfairness in the retrenchment of the individual
Applicants has not been proved and I turn finally to deal with the
contention that their dismissal was automatically unfair.
23. That contention is premised on the submission that the selection
of the individuals dismissed was made by virtue of their
membership of the First Applicant and that, on application of the
test defined by Froneman DJP in
S A Chemical Workers Union v Afrox Limited (1999) 20ILJ 1718 at
1726,
the answer to the question whether these Applicants would have been
selected for retrenchment but for their membership of the union must be in
the negative.
24. The Court, in that case, dealt with the determination of factual
causation, that is to say, in the context of the instant case,
whether membership by the individual Applicants of the union
was a cause for their dismissal or, otherwise structured, whether
their dismissal would have occurred if they had not been
members of the union.
“If the answer is yes, then the dismissal was not automatically unfair. If the
answer is no, that does not render the dismissal automatically unfair; the
next issue was one of legal causation, namely whether such participation
or conduct was the ‘main’ or ‘dominant’ or ‘proximate’ or ‘most likely’ cause
of the dismissal. There are no hard and fast rules to determine the
question of legal causation … I would respectfully venture to suggest that
the most practical way of approaching the issue would be to determine
what the most probable or plausible inference is that may be drawn from
the established facts as a cause of the dismissal, in much the same way
as the most probable or plausible inference is drawn from circumstantial
evidence in civil cases”.
25. The applicability of that general analysis to the conduct of the
Respondent, the Applicants contend, is evidenced by the fact
that the results of the evaluation exercise conducted by TNMC
were “already slanted in favour of the non-union members due to
the fact that the individual Applicants had not participated in the
exercise” for what they contended were valid reasons. Secondly
the identification of the workers to be retrenched was,
“manipulated to the detriment of the individual Applicants”. The
factual causation referred to in Afrox had accordingly been
established and in relation to legal causation, the most probable
inference to be drawn from the facts, it was contended, is that
these individual Applicants were selected for retrenchment
because they were members of the union. That conclusion is
based on the submission that no evidence was adduced by the
Respondent to the effect that any persons other than the
individual Applicants were retrenched and moreover that the
founders of the Applicants’ factory “had specifically located the
factory in a specific area in an attempt to ensure that they would
not have a unionised workforce” – an indication of longstanding
anti-union hostility. The “causation” contentions by the
Applicants’ in that context are, to my mind, implausible to say
the least, based as they unarguably are, on what present as
subjective misperceptions of the prevailing factual situation.
26. The First Applicant, an established registered trade union had, at
all material times been recognised by the Respondent and
afforded organisational and collective bargaining rights in respect
of its members in the Respondent’s workforce. The uncontested
evidence of the Respondent’s human resources manager Mr S
Mahlutshana in that regard, was to the effect that of a total
complement of employees of approximately two hundred and
thirty at the time, the majority were members in good standing of
the First Applicant, which was the only union active in the
Respondent’s operation, although no formal recognition
agreement had been concluded with it.
27. Following the termination of the employment of the individual
Applicants, he testified further, more than forty members of that
union, including union representatives, remained in the employ
of the Respondent, constituting more than 30% of the one
hundred and twelve employees who constituted the restructured
workforce. There is no evidence before this Court and nor is
there any suggestion that those union members were thereafter
subjected to any form of discrimination or harassment suggestive
of anti-union activity on the part of the Respondent. A further
submission in rebuttal of the Applicants’ contentions on this
aspect of the matter was that the Respondent had taken no
disciplinary action directed towards terminating the employment
of union members who had participated in unprotected industrial
action in furtherance of their wage demands on 17 August and
22 September 1998, whereas that conduct, in a hostile
environment, would have presented a convenient vehicle for
their disposal.
28. The allegation in question is, in these circumstances, in my
opinion far-fetched, with no semblance of realistic substantiation
and it is accordingly rejected.
29. In conclusion therefore, none of the grounds submitted by the
First and further Applicants to support the allegation of the unfair
dismissal of the individual employees, whether substantive,
procedural or automatic, having been established to my
satisfaction, this application cannot be sustained and must fail.
No submissions were made as to why an award of costs in this
matter should not conventionally follow the result and the formal
order that I make is accordingly the following:
29.1 The application is dismissed.
29.2 The First and further Applicants are ordered jointly and severally
to pay the Respondent’s costs.
___________________________
B M JAMMY
Acting Judge of the Labour Court
18 June 2002
Representation:
For the Applicants:
Advocate C Orr instructed by Cheadle Thompson & Haysom Inc.
For the Respondent:
Mr A Soldatos: Fluxman Rabinowitz – Raphaely Weiner Inc