IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN
CASE NO C288/2000
DATE 2002/06/19
In the matter between:
Applicant
and
Respondent
BEFORE THE HONOURABLE MR ACTING JUSTICE
NGCAMU
ON BEHALF OF APPLICANT: [Adv. De Wit]
ON BEHALF OF RESPONDENTS: [Mr. D. Short]
TRANSCRIBER
SNELLER RECORDINGS (PROPRIETARY) LTD - DURBAN
CASE NO: C288/2000
DATE: 19 June 2002
In the matter between:
NDUNA BANTUBONKE
and
SOUTH AFRICAN NATIONAL PARKS
J U D G M E N T
NGCAMU AJ
[1] The applicant was employed by the respondent as a manager
finance reporting at the Cape Town regional office. On
27 October 1999 the applicant and other employees in the
finance section in Cape Town resigned. The applicant's case is
that he was dismissed on 8 September 1999 on operational
requirement. He further claims that he was discriminated
against. He claims that the respondent did not consult with
him at any stage prior to 8 September 1999 as to his
redundancy or possible transfer. The applicant seeks
compensation equivalent to 24 months' salary and a
severance package.
[2] The respondent denies that the applicant was discriminated or
that he was dismissed based on operational requirements.
The respondent's case is that the applicant resigned. For the
purposes of this judgment the applicant will be referred to as
Nduna.
[3] The respondent called three witnesses in support of his case,
namely Mavuso Msimang (the chief executive officer), Jan
Smal (the former head of the Human Resources and Industrial
Relations) as well as Mr Brian Carstens (Human Resources
Coordinator for Southern Parks).
[4] Mr Mavuso Msimang testified that the respondent operates
and manages national parks throughout the Republic of South
Africa. The head office is in Pretoria. It was responsible for the
Northern Parks. The Cape Town Regional Office was
responsible for the Southern Parks. In 1998 the respondent
realised that there was a need for it to restructure itself to
become more cost effective and efficient. He saw the parks as
business units which should operate with their costs at an
optimum level and restrict their overheads. A corporate plan
was compiled in 1998 which envisaged the decentralisation of
certain functions, empowering the various national parks and
reducing overhead costs through consolidation. The
respondent was experiencing cash flow problems. Several
workshops were held regarding the proposed restructuring.
He visited all the national parks. There was active
participation by most of the people present. Guidelines were
derived from the workshops. There was concensus that
decentralisation to the parks and consolidation had to occur.
There was nothing specific about the closing down of certain
offices. The workshops were facilitated by external
consultants, the METRE Plan, who were experts in
conservation industry. The staff was not opposed to the
restructuring.
[5] On 25 May 1999 the respondent addressed a letter to the
staff. This letter appears at page 46 of Bundle A. Paragraph 4
of the letter reads as follows:
"One opportunity for cutting back on the 284 staff falling
outside the parks is by consolidating the Cape Town and
Pretoria offices into a sole rationalised support structure. This
is possible because Pretoria duplicates most of the services
provided by Cape Town. In addition, it will remove the
unnecessary layers of communication between a park
manager and the respective directors, who are equipped with
the technical expertise. For example, the Director of Finance
would now be responsible for all finance personnel that fall
outside the parks' business units."
[6] On 30 May 1999 Mr Nic Geldenhuys, Provincial Parks Manager
Southern parks, addressed a letter justifying the fact that the
Cape Town Regional Office should be left intact. This proposal
was not accepted by the directorate. One Mr Lubbe of the
Cape Town office advised Msimang that the staff wanted the
respondent to take a final decision. He was accused of
consulting too much.
[7] On 3 August 1999 Mr Msimang attended at the Cape Town
Regional Office to discuss the process of decentralisation and
consolidation with the employees. He denied that he assured
the staff that the Cape Town office would not be closed. On 7
September 1999 the Directorate took a decision, inter alia,
that the finance department of the Cape Town Regional Office
would relocate to Pretoria. On 8 September 1999 a video
conference was held between the Director of Finance, Mr
Soglanich, Dirk Fourie and the staff of the Finance Department
of the Cape Town Regional Office advising them of the
decision taken by the directorate to relocate the finance
department to Pretoria.
[8] The staff was invited to make representations and ask
questions. Mr Msimang was not personally involved in the
video conference. Mr Msimang met with the staff on
9 September 1999 to discuss the relocation of the finance
department to Pretoria. None of the staff members challenged
the relocation to Pretoria. Some employees mentioned that
they would not relocate and requested information regarding
the severance package.
[9] Mr Msimang testified that the position of the D to E band of
employees of the finance department in Cape Town were
required at the head office in Pretoria. Any staff in Bands
B to C could, in addition to the transfer to Pretoria, either apply
for a transfer to any other suitable vacancy or apply for a
severance package. These other options open to Bands B to C
were not available to Bands D to E. These said positions are
available in the head office. The staff in bands B to C were
regarded as secondary income earners. This was the reason
for offering them other options. The staff members were
advised by letter that their services were required at the head
office.
[10] On 16 September 1999 the Director of Finance addressed a
letter to the staff to exercise their options by 30 September
1999. The letter reads:
"As I have stated, management requires the services of all the
finance staff at our head office in Pretoria. However, would
any staff members in the Bands B to C wish to rather apply for
a transfer to any other suitable vacancy in the National Park
or, alternatively, apply for a severance package, such
application will be favourably considered by the management.
In order to properly plan the work flow office accommodation
on relocation of staff to head office, you are kindly requested
to exercise your options in writing by no later than Thursday,
30 September 1999, 16h00. Should you require any
information on possible alternative positions or severance
package benefits, you are requested to individually consult the
coordinator Human Resources, Mr B Carstens, who will assist
in any manner possible."
[11] None of the staff of the finance department exercised their
options by 30 September 1999. There was no communication
between the respondent and Mr Nduna and other employees
after 9 September 1999. According to Mr Msimang the staff
could be transferred as there was a contractual obligation. If
people indicated that they did not want to transfer, he would
have taken a decision to persuade them.
[12] Mr Msimang further testified that there were certain
consultations around consolidation and it was implied that the
Cape Town office would cease to exist and that the staff would
have to move somewhere else. He testified that they were
temporary employees in the finance department in Pretoria.
The staff would have to be housed in Pretoria head office if
they had agreed to come.
[13] Mr Msimang stated that he did not know Mr Nduna very well
and would not have had any reason to discriminate against
him. He stated that Mr Nduna was not happy with the move to
new Medical Aid, the Discovery. Mr Nduna wrote a long e-mail
and e-mailed it to everyone who had e-mail. Mr Msimang saw
this as an abuse of the e-mail and directed that Mr Nduna's
e-mail be disconnected. Another person who had also abused
e-mail was removed from the e-mail system. It was reinstated
after he had apologised. Mr Msimang denied victimising Mr
Nduna in any way.
[14] Mr Smal testified that he was General Manager, Labour
Relations, up to the end of October 2001. He was the adviser
to the Director Human Resources and later the Director of
Finance. He attended two workshops regarding the process of
restructuring and decentralisation of functions. The aim of the
workshops was to get input from the staff on how they saw
certain functions being devolved down to parks level. It came
out that certain functions could be done at park level. The
Human Resources Department worked together with the
directorate, looking at human resources' structure. A
corporate plan was compiled in 1998. Mr Daan de Waal was
mandated to visit the National Parks to establish which
functions could be performed in the National Park. Mr de Waal
co-opted Mr Maartens. These two gave the report, the Nature
of which was that some functions could be done inside the
National Park.
[15] Mr Smal also testified that he did not attend the video
conference but was informed about it. The letter of
16 September 1999, addressed to the staff, was written with
his input. He further testified that the transfer did not amount
to a retrenchment and therefore no severance package was
payable to the staff.
[16] With regard to the 1997 retrenchment policy he stated that he
did look at the policy and made changes. These were
approved by the Chief Executive Officer. They were, however,
not negotiated with the trade union. The old retrenchment
policy was still in force. It was part and parcel of the
recognition agreement with SACCAWU. The policy applied to
all the employees of the respondent. With regard to the policy
on retrenchment the Court is of the view that this policy does
not apply as it was not negotiated with the union and therefore
cannot be applied in this case.
[17] Mr Smal was surprised in getting a letter from the attorneys
Mallinicks Attorneys acting for Mr Nduna and other
employees. This letter by the attorneys is dated 30
September 1999. In the said letter the attorneys advised that
Mr Nduna and other employees had been constructively
dismissed. The applicant and other employees had not
indicated their options.
[18] Mr Nduna and other staff members referred the dispute to the
CCMA regarding their dismissal alleged to have taken place on
8 September 1999. The CCMA did not accept the referral as
the employees were still employed. The respondent
addressed correspondence to the attorneys denying that there
was any constructive dismissal. It was also mentioned that the
respondent was not retrenching staff as they were required in
Pretoria.
[19] On 26 October 1999 the applicant and other staff members
left the premises early and on 27 October 1999 the respondent
received a letter from the attorneys alleging that they had
been constructively dismissed and advising that their
resignation was effective as from 31 October 1999. Mr Nduna
and other staff members simultaneously referred another
dispute to the CCMA. Mr Nduna and other staff members
never raised any grievance about their transfer. Again the
respondent denied the constructive dismissal and extended
the invitation to resolve the matter amicably. The respondent
requested proposals from Mr Nduna and other staff members
for an amicable resolution of the matter. No proposals came
from Mr Nduna or other staff members. Nothing also came
from their attorneys. The respondent reiterated that it did not
intend retrenching the applicant and other staff members. Mr
Smal made it clear that the three managers were required in
Pretoria. Mr Nduna did not express that he could not transfer
to Pretoria. None of the positions were declared redundant.
[20] Mr Smal further testified that if the three managers had
submitted their decisions not to transfer, respondent would
have entertained the severance package. He stated that the
respondent did not constructively dismiss Mr Nduna and other
staff members. He further testified that because the
respondent did not retrench Mr Nduna and other staff
members, it was not obliged to pay any severance package.
[21] The respondent in this matter suffered prejudice due to the
fact that certain tasks were left incomplete as a result of the
resignation of the applicant and other employees. The task
had to be completed by the staff at the head office in Pretoria.
Mr Smal was advised by Mr Maartens, the General Manager
Finance, that he and his staff were going to leave and would
see the respondent in court. He appealed to Mr Maartens to
follow the internal procedures. The grievance procedures
were not followed by the staff and also by the applicant, Mr
Nduna.
[22] Mr Brian Carstens testified that his input in the matter was to
advise Mr Nduna and other employees with regard to the
process as well as to assist them with looking for alternatives.
He was not present at the video conference. He testified that
his impression of the letter of 16 September 1999 was that all
the staff had to consult with him if they wanted any
information. Mr Nduna and other employees did not approach
Mr Carstens for any assistance.
[23] With regard to the consolidation it was submitted that various
workshops were held. This also was not disputed by Mr Nduna
in his evidence. The employees concerned had to look for
alternative positions or relocate to Pretoria. The B and C Band
were given the opportunity of accepting a severance package.
[24] Mr Carstens also attended a meeting in Mr Maartens' office
where the employees were present, including Mr Nduna. He
testified that he was trying to identify alternatives for all
bands, including the D and E Bands. He telephoned head
office and asked what alternatives could be offered to D and E
Bands. Mr Nduna and other employees resigned before he
could get a reply. He was able to identify alternatives for
almost all the B to C Bands. He confirmed that during the
meeting it appeared that Mr Nduna and other employees were
considering leaving the organisation en masse . Mr Maartens
further confirmed that a position in Cape Peninsula National
Park was offered to Mrs Sharneck who declined to accept it on
the basis that it was far. He confirmed further that the 1997
retrenchment and redundant policy had not been
implemented. This completed the respondent's case.
[25] Mr Nduna, on the other hand, testified that he was aware of
the philosophy of restructuring until 1998. In mid 1998 he did
not attend any meetings. He did not attend any workshops in
1999. No proposals were made to him. He was not invited to
any meetings. He is aware of the contents of the
memorandum circulated in May 1999 dealing with the
consolidation of Cape Town and Pretoria offices. He was
concerned about this memorandum because it talked about
the cutting down of staff and consolidation. He is aware of the
letter written by Mr Geldenhuys about the ways of cutting
costs.
[26] He testified that he was told during the video conference that
the finance department in Cape Town will close down and that
the staff will be transferred to Pretoria. He confirmed that the
staff was told they were required in Pretoria and that B to C
Bands would be given retrenchment. His option was to resign.
He was not given an option of retrenchment. They were told
they were offered alternative positions in Pretoria which meant
that his position was abolished. This to him meant that he was
discriminated against. He did not have any option. The fact
that the respondent had unilaterally changed the conditions of
employment and discriminated against him, this made him to
resign. He regarded the closure of the finance department as
operational.
[27] Mr Nduna further testified that he was not consulted in any
process. The alternative employment was never given in
writing. He did not get a reply to the e-mail sent to
Mr Soglanich. Mr Nduna alleged that the letter dated
16 September 1999 requesting the staff to respond by
30 September 1999, was an ultimatum. He felt that this was
coercion. He confirmed that he did not respond as he
regarded the decision as unilateral. He testified that he
wanted to relocate to Cape Town and that is why he applied
for employment with the respondent. He mentioned this when
he was interviewed. He expected that he would work in Cape
Town until he retires. He was unaware of transfers within the
organisation. In this regard I must mention that the employee
cannot expect that he is going to remain in the same place
and do the same job all the time whilst he is still employed by
the employer.
[28] Mr Nduna testified under cross-examination that the reason for
resignation was discrimination. He was aggrieved that he was
not offered the package and he was told to relocate to
Pretoria. He agreed that he was a manager and different from
the Bands B to C. He testified that he was not a breadwinner.
His wife earned more than him. He agreed that he did not
raise this with the management. He kept quiet after the e-mail
had been cut off. Mr Nduna contended that the respondent
did not apply the correct retrenchment policy dated 1997.
[29] In support of his case Mr Nduna led the evidence of
Mr Geldenhuys, Maureen Scharneck, Kotze and Maartens. The
gist of their evidence was that they were not consulted on
transfer. Scharneck testified further that they were told they
would do the same work in Pretoria. She testified that she
walked out in October because of pressure of work. This
evidence by Scharneck contradicts the evidence of the
applicant in that the applicant resigned because the employee
made the employment intolerable by discriminating him and
not offering him a retrenchment package, while on the other
side Mrs Scharneck testified that she resigned because there
was pressure of work as a result of other employees leaving.
[30] The respondent contends that the consolidation was for
operational requirement. Section 213 of the Labour Relations
Act defines operational requirement as requirements based on
the economic, technological, structural or similar needs of an
employer. Section 189(1) obliges the employer to consult
when contemplating dismissing one or more employees based
on employer's operational requirements. The applicant has to
prove that he was constructively dismissed.
[31] Various reasons have been put up by the applicant as proof of
dismissal. The applicant argues that he was only informed on
8 September 1999 to transfer to Pretoria. He therefore argued
that his position became redundant as he was not consulted.
[32] The Labour Relations Act does not deal specifically with the
transfers. The evidence disclosed that the respondent wanted
to relocate the finance department to which the applicant was
attached. The Labour Relations Act does not specifically
outlaw a transfer of employees as a result of relocation. It
does not provide for consultation with the employees. The
employer is entitled to relocate his business to any other place
if that is in the interest of the business. In so doing he is
entitled to move employees as there is no prohibition in the
Labour Relations Act. If the transfer involves a major
disruption for the employee, the employee's view must be
taken into account. This is so because the employee may
have to relocate his family and disturb the schooling of the
children. This may also involve the purchase of a new house.
Although the Labour Relations Act does not prohibit the
transfer, the employee cannot be transferred against his will.
He must be given an opportunity to be heard. It would,
therefore, be unfair to force the employee to transfer where
reasonable objections have been raised. In Howell v
International Bank of Johannesburg Ltd [1990] 11 ILJ 791 [IC],
the employee was given an ultimatum to transfer or resign.
This was found to be unfair.
[33] The applicant's submission is that he had either to accept a
transfer or resign, and refers to the minutes of the video
conference, the relevant portion relied upon is the following:
"So the decision was then made that B and C levels would be
offered the retrenchment packages according to the SANP
policy. The director of the staff would offer to be transferred
up to Pretoria to operate in a central financial department up
here, where we have down our own rationalisation and
reduced certain numbers, or we will certainly be reducing the
temporary situation in Pretoria to accommodate the move of
staff from Cape Town to Pretoria. So that was the decision as
it was taken was, to summarise, to transfer or offer
employment to all of you up here in Pretoria but with options
for the B and C Grades to take the retrenchment packages if it
was deemed that the move to Pretoria was impractical in their
eyes."
[34] There is nothing in the paragraph quoted that indicates that
the applicant had to transfer or resign. It is clear that the
applicant and other employees were offered positions in
Pretoria. It was upon the employees to identify certain
alternative positions if available. The employees were free to
identify positions. There is nothing in the video conference
indicating that this was only limited to the B to C Grades.
[35] In the letter dated 16 September 1999 the applicant and other
employees were requested to signify their intentions. The
applicant is aware of this letter. The letter cannot in any way
be interpreted as an ultimatum to transfer or resign as
contended by the applicant. The applicant had to indicate
whether he was going to Pretoria or not to enable the
respondent to do the planning for the accommodation in the
Pretoria offices. The applicant took a very strange decision,
keeping quiet, thereby not disclosing what his intentions were.
[36] The respondent indicated that there was work for the applicant
in Pretoria. There is no evidence that his duties would have
been different from those he was performing in Cape Town.
The applicant's silence prevented the respondent from
knowing what the applicant wanted and to consult in the event
of refusal to transfer. The respondent could not have been
expected to consult on retrenchment with the applicant when
he had made it clear that it was not retrenching. The situation
would have been different had the applicant indicated his
intentions. The respondent was not aware if the transfer
would disrupt the family of the applicant. No inconvenience or
impracticality was indicated to the respondent. On the
evidence before the Court there is no evidence of dismissal on
operational requirements as alleged by the applicant.
[37] On 9 September 1999 the Director of Human Resources
indicated clearly that the respondent was not retrenching any
employees. The applicant's position has not been shown to
have been redundant within the respondent. It was, therefore,
not necessary for the respondent to consult on retrenchment
as required in Section 189(1) of the Labour Relations Act.
[38] The applicant argued that he was constructively dismissed
because he was not offered a specific post in Pretoria. This
argument cannot be accepted. If the applicant had a problem
with transferring to Pretoria or had doubts as to the work he
was going to perform, it was open to him to make inquiries.
The applicant and other employees were told that the work
was there for them. The fact that there was no list of
alternatives is no ground for not responding to the request
that the employees indicate their intentions. The applicant did
not identify any alternatives. In the circumstances I reject the
argument that the applicant was not asked to negotiate
alternatives as none were identified by him.
[39] The applicant considered himself as having been
constructively dismissed. However, he never voiced this out
with the respondent. What is strange is that the applicant
considered himself as having been constructively dismissed on
8 September 1999. He argued that he stayed with the
respondent in the hope that the respondent would reconsider
his decision of an alternative post, or discuss severance pay.
This argument ignores the fact that the respondent had no
idea that the applicant was not happy with the move to
Pretoria.
[40] The Labour Relations Act defines constructive dismissal as
meaning:
"An employee terminated a contract of employment with or
without notice because the employer made continued
employment intolerable for the employee."
The employer must have made the employment oppressive to
such an extent that the employee could not have been
expected to put up with.
[41] It is, therefore, clear that the applicant has to prove that the
situation was intolerable. See in this regard the Labour
Relations Act of 1995, A Comprehensive Guide , 2nd Ed. by
Du Toit, Woolfrey et al page 373. The employee has to satisfy
the Court that the employer's conduct rendered continued
employment intolerable and there was no alternative but to
resign.
[42] The fact that the respondent wanted the applicant to move to
Pretoria in my view cannot amount to constructive dismissal as
alleged by the applicant. In Smith v Magnum Security [1997] 3
BLLR 336 CCMA, it was stated that unreasonable or illegitimate
demands by the employer do not amount to constructive
dismissal.
[43] The applicant was informed that transfer would take place on
31 December 1999. There is no compelling reason for the
applicant to simply resign without raising the issue with the
respondent. If the employee chose to resign rather than
seeking to resolve the dispute with the employer, he is not
constructively dismissed. See in this case W L Ochse Webb
Pretorius (Pty) Ltd Vermuelen [1997] 2 BLLR, 124 [LAC]. Also
Lubbe v ABSA Bank Bpk [1998] 12 BLLR 1224 [LAC].
[44] When looking at the respondent's conduct as a whole I cannot
find any constructive dismissal in that the applicant continued
to work for the respondent even though he regarded himself
as having been constructively dismissed. He referred the
dispute to the CCMA and when the referral was rejected by the
CCMA he returned to work. This is inconsistent with the
allegation of constructive dismissal and that the employment
had been made intolerable. If the employment had been
made intolerable by the respondent the Court would not have
expected the applicant to go back and work with the
respondent after the CCMA had rejected the referral.
[45] All this happened when the respondent was waiting for the
applicant's election whether or not to go to Pretoria. The
respondent never refused to discuss with the applicant.
Applicant never made any attempt to discuss his problems
with the respondent. In Jooste v Transnet Ltd [t/a SA Airways]
[1995] 16 ILJ 629 [LAC], the Court looked at the conduct of the
employer as a whole to determine whether judged reasonable
and sensible is such that the employee cannot be expected to
put up with the employer’s conduct.
[46] All that is before Court in this matter is that the applicant did
not like the respondent's actions in relocating the finance
department to Pretoria. However, this is not constructive
dismissal. Even if the employee is not happy with what the
employer is doing in relocating the finance department, it
cannot amount to constructive dismissal. There would be
constructive dismissal if there is a discussion with the
respondent and the employee voices out his objections and
the reason why he does not want to move to Pretoria which
the employer ignores. In the absence of any other reasonable
grounds raised by the applicant, it cannot be said that he was
constructively dismissed.
[47] The applicant in this matter decided to resign as a result of
being compelled to go to Pretoria according to him. His
evidence is contradicted by Mrs Scharneck on this, who
testified that they resigned as a result of the pressure of work.
The applicant also relied on the judgment of WAGLEY J
attached to the papers. In this judgment there is no ruling
regarding constructive dismissal. This Court is, therefore, not
bound by the said judgment.
[48] I am satisfied on the evidence before the Court that there was
no constructive dismissal proved by the applicant. Mr Nduna
failed to communicate his intentions and he was locked in his
subjective view that because respondent did what he did not
like, he was therefore constructively dismissed. There is no
logic in the applicant's argument on constructive dismissal and
I therefore reject it.
[49] His reason that he did not voice out his objections or respond
to the letter of the 16 September because the respondent had
already made a decision cannot be accepted. He argued that
he was not the breadwinner but his wife was a breadwinner. If
that was the reason for not going to Pretoria, that should have
been pointed out to the respondent and if the respondent
refused to accept his reasons for refusing to go to Pretoria the
Court would have looked at this case in a different manner.
However, in the present case the applicant decided to keep
quiet and did not voice out what his problems were. His
problems only came when the matter was before Court.
[50] The applicant further argued that he was discriminated against
because the e-mail address was removed. This has no logic
and could not have caused the applicant to resign. This
happened some time before he was required to go to Pretoria.
He further argued that his discrimination stems from the fact
that he was not offered a severance package. In this case I
must point out that the applicant was in a management level.
It was pointed out that the managers were required in Pretoria.
Those not in the management level were offered an
alternative of severance package. This was a case of
differentiation based on the rank of the employees and does
not amount to discrimination. Applicant did not indicate that
he had a problem with the offer to go to Pretoria. It is
legitimate for the employer to differentiate between the
employees of different categories. The applicant was,
accordingly, treated as a manager as opposed to the
employees of the lower rank and as such he was offered an
employment in Pretoria and that he could transfer to Pretoria
whilst the other employees were offered an option of taking a
severance package.
[51] The applicant's case is made difficult because he simply kept
quiet and even if his position would have been looked at
differently by the respondent, this was not put forward. As a
result of that the respondent was kept in darkness as to why
the applicant did not want to transfer to Pretoria but instead
decided to take an option of resigning without first resolving
the disputes internally with the respondent.
[52] I have indicated that the employer is entitled to treat the
different employees of different levels in a different manner.
This is the position in cases where senior management
employees are at times excluded from collective bargaining.
These employees are treated differently because they are
managers, which is the same position in this case. However, it
does not mean that the applicant was only confined to
transferring to Pretoria. It was still open to him to discuss his
problems with the respondent, which he failed to do. See in
this case S A Society of Bank Officials v Standard Bank of
South Africa Ltd 1998(2) SA 1 [SCA] at page 6. It is for this
reason that I cannot find any discrimination on the part of the
respondent.
[53] Although the applicant called several witnesses to strengthen
his case, I have come to the conclusion that these witnesses
did not support the applicant's case as to why he did not
respond to the letter dated 16 September and as to why there
was no objection raised for not transferring to Pretoria. All
they said was that there was no consultation with them and,
as I have indicated, the consultation would have been required
if objections have been made and that as a result of the
objections made the respondent had to decide what to do with
those people who did not want to go to Pretoria. In this case
the applicant and other employees did not indicate that they
did not wish to go to Pretoria to prompt the respondent to
consult with them regarding the termination of their
employment, if any.
[54] In the result, and in view of what I have stated above, the
applicant's case cannot succeed. I therefore reject the
submission that the applicant was discriminated or that he was
constructively dismissed. The applicant's case therefore fails.
[55] I also have to decide the question of costs in this matter.
When the matter was proceeding during the trial at one stage,
in particular on 29 November 2001, Mr Smal was ill and could
not attend court. As a result of that the matter had to be
postponed. It was argued at that stage that the Court should
make an order for costs in favour of the applicant. As a result
of the respondent's representative not being ready with the
argument regarding costs, I indicated to the parties that the
argument had to be renewed during the argument on the
merits of the matter. I have noticed that in the written heads
that were submitted, none of the parties raised the question of
costs of 29 November 2001. In the circumstances I have to
make my own decision regarding the costs of that date.
However, I must also indicate that the applicant's counsel did
give submissions on 29 November as to the question of costs.
What is lacking basically is the respondent's side on the
question of costs for 29 November 2001. In this regard I have
come to the conclusion that the postponement of 29
November 2001 was not as a result of the applicant and
therefore it would be unfair to cause the applicant to pay the
costs for that day. The costs for 29 November 2001 should,
therefore, be paid by the respondent.
[56] With regard to the costs of the whole matter, I have come to
the conclusion that in this case the costs should follow the
result. In the result the order that I make is the following:
(a) The application by the applicant is dismissed.
(b) The applicant is ordered to pay the respondent's costs.
(c) The respondent is ordered to pay the applicant's cost for the
postponement on 29 November 2001.
THE HONOURABLE MR JUSTICE NGCAMU
LABOUR COURT JUDGE