Sneller Verbatim/idm
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JS201/01
2002-08-15
In the matter between
CELESTE AVRIL CORNS Applicant
and
ADELKLOOF DRANKWINKEL C.C.
t/a CELLARS DRANKWINKEL Respondent
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J U D G M E N T
DELIVERED ON 20 AUGUST 2002
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REVELAS J:
1. The applicant was dismissed on 15 December 2000 due to
the alleged operational circumstances of the
respondent. She is 31 years old and was employed as a
floor manager.
1. 2. On the day of her dismissal, the applicant was
requested to accompany Mr Van der Merwe, the manager of
the respondent, a close corporation, to a building in
Kimberley. She had never been there before, and as it
turned out, they were on their way to the offices of an
employer's organisation named the Labour Code
Determination for Small Enterprise Employers of South
Africa ("SEESA"). Mr Van der Merwe is a member of
SEESA and who also represented the respondent in this
matter. On their arrival, the applicant was introduced
to Mr Johan Viljoen of SEESA. Mr Van der Merwe then
raised the issue that he could no longer afford the
applicant. He subsequently left the office and the
applicant was left with Mr Viljoen. It is common cause
that when the applicant realised that her services were
being terminated, she cried and was very upset. Mr
Viljoen suggested that she go to the bathroom, which
she did, and returned 15 minutes later. Mr Viljoen
testified that he offered a postponement of the meeting
to another day because of her emotional state, which
she declined. He offered her a voluntary retrenchment
package comprising of the following:
1 one week's remuneration for each year of completed
service (R900,00);
2 accumulated leave pay (R1 360,00);
3 pro rata bonus (R300,00);
4 one week's ex gratia payment (R450,00);
5 notice pay (R1 800,00);
6 extra (R500,00).
The total is R5 310,00.
3. Mr Viljoen also required the applicant to sign a
voluntary retrenchment agreement, which was a standard
application form. She signed this document, the
relevant part of which reads as follows:
"Ek doen hiermee aansoek om 'n vrywillige afleggingspakket
soos aangebied deur die werkgewer.
Ek aanvaar hiermee die pakket soos aangebied en erken dit as
volle en finale betaling van enige en alle eise tussen myself en
die werkgewer.
Ek besef dat die rede waarom die afleggingspakket aangebied
is verband hou met die werkgewer se heersende
omstandighede. Ek wil egter wel in aanmerking kom vir
herindiensneming sou die werkgewer se posisie verbeter en 'n
pos waarvoor ek geskik sal wees, beskikbaar raak.
Ek sal my dienste beëindig op 15 Desember 2000."
The document is dated 15 December.
4. It is common cause between the parties that the
applicant asked to phone her mother for advice. She
said that she did not understand what was going on, and
I presume she meant that she did not understand her
rights. Her mother advised her to sign the agreement,
which she did. According to her, she believed that Mr
Van der Merwe did not like her as a person, and her
mother knew thereof, and apparently that was the basis
of her advice to her daughter to sign the agreement.
Thereafter Mr Van der Merwe came in and gave her her
cheque, which she banked the same day.
5. The applicant referred her dispute to the Commission
for Conciliation, Mediation and Arbitration, ( Athe
CCMA@), the following Monday.
1. 6. The applicant testified that during the meeting she
was in shock and had signed the document under pressure
because Mr Viljoen said he was in a hurry and had to be
back in Upington that night. Mr Viljoen disputed that
he ever made such a statement, and he stated that he
could prove that he slept in a guest house in Kimberley
that night, as he had to attend a function that
evening. However, what is peculiar is that the
applicant met Mr Viljoen that day for the first time in
the SEESA office in Kimberley. How would she have
known that he was resident in Upington?
7. Mr Viljoen gave evidence that he followed all the
correct procedures in terms of section 189 of the
Labour Relations Act 66 of 1995 ("the Act"). Yet he
did not provide one single fact or make reference to
any alternatives or selection criteria that he raised
with her. No proper evidence was provided by him to
support his statement to that effect. He could not say
what he had told her. He said that he had made notes
of the consultation. During further questioning it
emerged that these notes only related to amounts
contained in the package, and although it was stated in
court that he had the minutes with him, there were no
minutes produced. It appeared that he had no such
minutes, or ever had such minutes.
1. 8. I am unconvinced that there was any attempt to
comply with the obligations placed upon an employer by
section 189 of the Act. The applicant was told that
her services had to be terminated on 15 December 2000.
She heard about this for the first time on that day.
Yet the document setting out her package is dated
11 December 2000, four days previously, and is titled
"Kennisgewing van aflegging". She received no such
notice, and she was taken to Mr Viljoen unprepared and
unrepresented. The document dated 11 December 2000
also refers to her package as an "afdankingspakket".
9. Mr Van der Merwe, upon a request by me to explain why
he had not conducted the consultation himself, answered
that he thought it would be better if someone else
conducted the proceedings, to alleviate the
unpleasantness thereof. He said that the bottle store
was under financial pressure and he then phoned Mr
Viljoen for assistance. He also gave evidence that the
applicant was the highest paid employee, and it is
apparently for that reason that she was identified for
retrenchment. In evidence, however, the attorney
appearing on behalf of the applicant put to Mr Van der
Merwe a pay slip which he admitted was the pay slip of
a coemployee, Adri Barnard. This pay slip reflected
that Ms Barnard was paid R1 800,00 by the respondent
per month, which is the same salary earned by the
applicant. This would indicate further, apart from Mr
Van der Merwe's credibility on the matter, that no
proper selection criteria was followed, let alone
alternatives for retrenchment were discussed.
10. Mr Viljoen could hardly have complied with any of the
requirements of section 189 of the Act, because he
simply could not have had sufficient information at his
disposal about the respondent's business to conduct a
proper consultation. He had arrived in Kimberley from
Upington and spent less than an hour with the applicant
alone in an office.
1. 11. I gained the strong impression that Mr Van der
Merwe wished to retrench the applicant as expeditiously
as possible, and consequently obtained the services of
his employer's organisation, who only had his interest
at heart, to attend to his problems.
12. According to the pretrial minute (paragraph (iv) on
page 27 of the bundle of pleadings, the parties
described the issues which the court had to decide as
"whether operational requirements necessitated dismissal
(and)
whether the procedure that led to the consensual termination
of the employment was fair".
13. The respondent argued in a special plea that the
termination of the applicant's services was consensual,
as she had signed the agreement in question. Any
shortcomings in the process, which was conceded by the
respondent's advocate or counsel for the respondent,
that preceded the agreement was cured by the voluntary
retrenchment package agreement.
1. 14. In my view, and for the reasons set out above, the
respondent did not discharge its onus of proving that
the dismissal was for a valid reason. The procedure
was entirely unfair, highhanded and flawed. In Bekker
v Nationwide Airlines (Pty) Ltd 1998 2 BLLR 139 (LC)
Landman J held that where an agreement of this nature
is reached as a form of settling a retrenchment, the
agreement must be preceded by consultation. In this
matter, the consultation process was so flawed that it
amounted to no consultation at all. The applicant was
taken to a building where she was confronted by a
perfect stranger with the news that she had to be
retrenched. Mr Viljoen had a standardised agreement
ready at hand. Even if she declined the postponement
of the meeting, Mr Viljoen says he offered, it was
clear that she would eventually be retrenched whether,
at this meeting or the next meeting. The circumstances
in which her signature was procured were oppressive.
She was in shock, needed advice, followed her mother's
advice over the telephone in circumstances where no one
had her interests at heart.
15. The main objective of that meeting was to procure the
applicant's signature on the agreement, and to
circumvent the requirements of section 189 of the Act.
The decision to dismiss was taken four days ago.
16. From the respondent's point of view there was really
nothing to discuss, and Mr Viljoen did nothing to
discuss, other than the amounts set out in the
retrenchment package. In the end he conceded, when
asked about the minutes, the only notes he made were in
relation to the amounts to be paid. All that was
discussed was the package.
17. In my view, an agreement obtained in such unfair
circumstances amounts to a nullity. I therefore find
that the dismissal was both procedurally and
substantively unfair. The applicant should be
reinstated.
1. 18. The applicant's attorney argued that I should make
a punitive cost order against the respondent for the
manner in which the case was conducted, particularly
with reference to the postponement obtained for the
Friday to obtain the presence of Mr Viljoen. I do not
agree with the applicant's attorney that this
postponement, the nature of which regularly occurs in
courts, should invite that type of cost order. The
respondent did tender the wasted costs.
19. In the circumstances I make the following order:
1 The applicant is reinstated in the employ of the
respondent on the same terms and conditions which were
applicable to her on the date her services were
terminated.
2 The reinstatement shall be with retrospective effect,
but limited to 12 months' payment.
3 The respondent is to pay the applicant's costs of suit
on the scale as between party and party.
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E. Revelas