IN THE LABOUR COURT OF SOUTH AFRICA
REPORTABLE
HELD AT DURBAN
CASE NO: D893/00
In the matter between:
J DE LAAN Applicant
and
VAN DYCK CARPERT COMPANY Respondent
JUDGMENT
MASERUMULE AJ:
1. This matter comes before court as a referral in terms of section
191(5) of the Labour Relations Act, 66 of 1995(“the Act”). The
applicant alleges that his dismissal by the respondent for
operational reasons was procedurally unfair.
2. At the commencement of the trial, I drew the attention of the
parties’ legal representatives to the fact that the applicant’s
referral of his dismissal dispute to this court was made outside
the ninetyday period prescribed by section 191(11) of the Act
and that such late referral had not been condoned. The
certificate of outcome was issued on 29 November 1999. The
statement of case was served on the respondent by telefax on
29 September 2000 and filed with the registrar of this court on 3
October 2000. The period prescribed by the Act expired on 27
February 2000. The referral is thus 214 days or just over seven
months late.
3. The parties agreed that the matter should proceed on the basis
that the applicant would make an application for condonation at
the commencement of the trial, and would give viva voce
evidence in support thereof, and would simultaneously address
the merits of the dispute, so as to enable the court to make a
proper determination regarding his application for condonation.
The court would then make a decision on the application for
condonation after hearing all the evidence, including evidence in
rebuttal from the respondent.
4. I am of the opinion that Section 158(h) of the Act, read with Rule
11 of the Rules of court, permits such a procedure. Section
158(h) confers general powers on the court to condone non
compliance with any time period prescribed by the Act. Rule 11
prescribes the procedure that must be followed in respect of
applications incidental to or pending proceedings instituted by a
party. The rule requires such applications to be by way of
affidavit and to be supported by an affidavit. This is in contrast
to Rule 12, which deals with applications for noncompliance
with the rules themselves but in respect of which the procedure
for bringing such an application is not prescribed.
5. The court is a superior court with authority and inherent powers
in relation to matters falling under its jurisdiction, section 151 of
the Act. The court’s inherent powers include the power to
regulate its procedures in the interests of justice, see Landman
& Van Niekerk: Practice and Procedure in the Labour Courts ,
Butterworths, A2. Rules of court must be interpreted and
applied in such a way that they facilitate the work of the court
and promote the inexpensive and expeditious resolution of
and promote the inexpensive and expeditious resolution of
disputes, see Landman & Van Niekerk , s upra, D1.
6. In the present matter, the respondent did not raise a point in
limine in its response to the statement of case relating to the
later referral of the dispute to the court. The point raised in the
reply related to the alleged absence of jurisdiction by the CCMA
to conciliate the dispute and issue a certificate of outcome. This
point was also raised in the pretrial minute but abandoned
before the trial commenced. The late referral of the dispute was
not raised in the pretrial minute as a point in limine. The parties
came to court prepared to deal with the merits of the dispute. In
the circumstances, although Rule 11 requires an application on
notice supported by an affidavit, dealing with the matter by way
of an application from the bar supported by the applicant’s viva
voce evidence served the same purpose as what Rule 11 is
intended to achieve. It also meant avoiding additional expense
associated with a postponement to allow for an application that
complies with Rule 11 as well as ensuring that the dispute
between the parties was resolved. Taking into account that the
applicant had been retrenched in June 1998, that the referral to
court was made in August 1999, that in all other material
respects, the matter was ripe for trial, and the delay that a
postponement would cause, I deemed it expedient and in the
interests of justice to deal with the application for condonation
as part of the trial.
7. I therefore, first deal with the application for condonation for the
late referral of the dispute to court, adopting in the process, the
approach in Melane v Santam Insurance Company Limited
1962 (4) SA 531 (A). This means that the court must look at,
inter alia, the period of delay, the explanation tendered for such
delay, the prospects of success on the merits of the dismissal
dispute and the importance of the matter.
8. Prior to dealing with the evidence led at the trial, it is necessary
to first refer to the agreement reached by the parties as
to first refer to the agreement reached by the parties as
recorded in the pretrial minute. The material common cause
facts recorded therein are that:
8.1 The applicant commenced employment with the respondent on
1 June 1986;
8.2 The applicant and other employees of the respondent were
retrenched on 30 June 1998;
8.3 The applicant was at all material times a member of Southern
Africa Clothing and Textile Workers Union (“the union”);
8.4 The retrenchment of the applicant and other employees was
preceded by consultations with the union, with which the
respondent was obliged to consult;
8.5 The respondent did not consult personally with the applicant;
8.6 As part of the consultation process, the respondent and the
union agreed that voluntary retrenchments would be considered
first prior to compulsory retrenchment;
8.7 Some employees, including one Padayachee, applied for
voluntary retrenchment which was accepted, and as a result of
which the applicant was not then identified for retrenchment;
8.8 Padayachee thereafter, but before the finalisation of the
consultation process, withdrew his application and the
respondent accepted such withdrawal;
8.9 As a result of the withdrawal of Padayachee’s application and
the respondent’s acceptance thereof, the applicant was
thereafter identified as a retrenchee by the application of the
selection criteria.
9. The pretrail minute went on to record that the issues in dispute
and which the court would be required to deal with are:
9.1 Whether or not Padayachee’s application for voluntary
retrenchment was accepted by the respondent prior to the
applicant being identified as a retrenchee by the application of
the selection criteria; and
9.2 Whether or not the respondent was obliged to consult with the
applicant personally in regard to his dismissal.
10. The applicant then testified that he had been on sick leave from
17 June 1998 and returned to work on 20 June 1998. He
worked his shift from 06h00 until 15h30 when he was called to
the office of Mr Deveraj Naidoo, the factory manager. According
to the applicant, Naidoo told him that he was being retrenched,
that he did not have to work until 30 June 1998 and that he
must there and then leave. He went to the office of Ms Heidi
Brown, the then Human Resources Manager, and was given a
certificate of service, which is dated 30 June 1999. He was
thereafter escorted from the factory. He subsequently went to
his present attorney of record. He referred a dispute to the
CCMA concerning his retrenchment. (I pause here to mention
that the referral to the CCMA was some two and a half months
late but the CCMA condoned the late referral) He attended at
the CCMA on 29 November 1999 when the certificate of
outcome was issued, following respondent’s nonappearance.
The reason for the delay in referring the matter to court was
because he had no money.
11. The applicant also testified that he had the longest service in his
department, as opposed to Themba Makhanya, a fellow
supervisor and Naidoo, to who the applicant referred to as a
supervisor as well.
12. Under crossexamination, the applicant initially repeated that
the delay in referring the matter to court was because he did not
have money. He, however, later said that after attending at the
CCMA on 29 November 1999, he took the certificate of outcome
to his attorney on the same day, who told him that he would
refer the matter to this court. Thereafter he did not make any
enquiries from his attorney as to the progress of his matter until
he received a letter from his attorney in May 20002, attaching
the notice of set down for trial. The applicant also said because
of the stroke that he had suffered earlier, and which had led to
his sick leave in June 1998, he was not well and was admitted
to hospital for three days in 1999, for another three days in
2000, three days in August 2001 and again at the beginning of
August 2002. The applicant further testified that his children,
who only started working in August 1999, are the ones who
assisted him with money to pursue the litigation against the
respondent.
13. Under reexamination, the applicant for the first time stated that
he had also gone to the Legal Aid Board after reading about it in
the papers. He was made to fill forms and come back on three
different occasions and because of his ill health, he stopped
going. He also said that he does not know how lawyers work,
hence he did not make enquiries from his attorney.
14. Two witnesses testified on behalf of the respondent.
15. Deveraj Naidoo testified that he was the factory manager of the
Space Dye Department in which the applicant worked. He had
been involved in all but one of the consultation meetings held
with the union. The union had agreed to the voluntary
retrenchment process and had in fact supplied the respondent
with the names of the employees who were volunteering for
retrenchment. Mr Padayachee was one of the employees
whose names were submitted to the respondent by union shop
whose names were submitted to the respondent by union shop
stewards at a meeting on 18 June 1998 and the respondent
accepted such application. Thereafter and at another meeting
on 23 June 1998, the union shop stewards said they were
withdrawing Padayachee’s name form the volunteers because
his family had advised him against taking voluntary severance
package. Naidoo said he was extremely unhappy about the
withdrawal because it disrupted the consultation process. A
lengthy debate about the withdrawal ensued between the
respondent’s representatives and the union shop stewards but
eventually, management agreed to the withdrawal of
Padayachee’s name from those of the volunteers. The
respondent and the union then looked at the selection criteria,
which was LIFO subject to the retention of skills. Personnel files
of the three supervisors was called for and produced. The shop
stewards and management examined them and both teams of
representatives were surprised to learn that the applicant had
the shortest service when they initially thought that Makhanya
would be the one with the shortest service. However, the
personnel records indicated that Makhanya’s service was longer
than that of the applicant by approximately two weeks. The
applicant commenced employment with the respondent on 1
June 1986 and Makhanya on 12 May 1986. All three
supervisors had the same skills and the applicant was, with the
union’s agreement, selected as the candidate for compulsory
retrenchment on the strict application of LIFO.
16. Naidoo further testified that no individual consultations were
held with the applicant because the respondent’s obligation and
practice, based on previous retrenchment exercises, was to
consult with the union only. Further, at the conclusion of the
meeting on 23 June, the shop stewards had specifically said
that the respondent should not communicate with its members
selected for retrenchment: the union would do that.
17. Naidoo also disputed applicant’s version that he had told him
17. Naidoo also disputed applicant’s version that he had told him
that he was retrenched on 20 June 1998. According to Naidoo,
Henry Van Wyk, the union shop steward in applicant’s
department, had either on 23 June following the consultation
meeting referred to above or a couple of days thereafter,
approached him and requested that the applicant be allowed to
stop working before 30 June 1998, being the last working day
for employees to be retrenched, in view of his illhealth but
provided he was paid for the month of June in full. The
respondent agreed to this request.
18. Under crossexamination, Naidoo stated that although the
respondent had accepted Padayachee’s application for
voluntary retrenchment, the union had the right to change its
mind and the respondent was willing to accept that change. He
conceded that the respondent did not consult with the applicant
because in his view, there was no obligation to do so. He said
that if the union had not said they should not communicate with
employees selected for retrenchment, the respondent would
have done so, as it did with employees who were not union
members.
19. It was put to Naidoo that he could not vouch for the correctness
of Makhanya’s date of employment, as he was not the one who
had completed the personnel form reflecting his date of
employment. Naidoo conceded that he could not do so but
pointed out that if the information herein was incorrect, the
union would have raised it at the meeting of 23 June 1998 and
this was not done.
20. Ms Heidi Brown was the second witness for the respondent.
21. She testified that she was the Human Resources Manager at
the time of the retrenchment, although she now was no longer
in respondent’s employ, having resigned in September 1999.
She had attended all the consultation meetings between the
respondent and the union. The respondent had consulted with
the union because the recognition agreement between them
provided that the union bargained on behalf of all employees,
and not just its members.
22. Brown disputed applicant’s evidence that she had given him his
certificate of service on 20 June 1998. She said that she did not
work on Saturdays and 20 June 1998 was a Saturday.
23. Under crossexamination, she said that it was Naidoo who had
raised reservations about accepting the withdrawal of
Padayachee’s name from the list of those opting for voluntary
retrenchment, that the matter was debated and eventually
agreed to. She confirmed that the applicant would not have
been retrenched had the respondent refused to consider and
accept the union’s withdrawal of Padayachee’s name from the
list of employees who had opted for voluntary retrenchment.
She, however, stated that there was nothing wrong in having
accepted the withdrawal, as it was part and parcel of the
consultation process, which involved discussions and
agreement. She also stated that the respondent only consulted
with the union and not individual members, that this was both in
terms of the agreements with the union and previous practice.
Regarding the fact that the letter of retrenchment addressed to
the applicant referred to “correspondence and subsequent
meetings with you”, she conceded that the reference to “you” in
the letter could be misleading as such correspondence and
meetings were with the union and not the applicant. She stated,
however, that the letter was a standard letter sent to all
employees who were retrenched.
Submissions
24. Mr Rorick, appearing for the applicant, did not make any
submissions regarding the period of delay and the explanation
tendered. He concentrated instead, on the alleged unfairness of
applicant’s dismissal and as such, the prospects of success. He
submitted that it was not applicant’s case that he should have
been consulted with from the commencement of the
consultation process. The applicant accepted the collective
agreements and collective bargaining arrangements, including
those with regard to consultations about possible
those with regard to consultations about possible
retrenchments, made by the respondent and the union. What he
contended for was that in this case, because the respondent
had called for volunteers and had accepted the names
submitted to it on 18 June 1998, including that of Padayachee,
once it decided that it would accept the withdrawal of his name
from the list, it was obliged in such circumstance, to consult
personally with the applicant about the effect of accepting the
withdrawal. He submitted that the applicant became entitled to
the application of the audi alteram partem rule, as he then
became a candidate for retrenchment because of the
acceptance of the withdrawal of the name of an employee
whose volunteering for retrenchment had meant that the
applicant would not be retrenched. The respondent’s failure to
do so, he submitted, rendered the subsequent dismissal
procedurally unfair, entitling the applicant to compensation in
terms of section 194(1) of the Act.
25. On behalf of the respondent, Mr Maeso submitted that the delay
was excessive, the explanation woeful and with very little
prospects for success. In the latter regard, Mr Maeso submitted
that the obligation created by section 189(1) was to consult with
the appropriate body, in casu, the union. Once such
consultations commence, the obligation in respect consultations
on all matters referred to in the remainder of section 189 of the
Act remains is on the same consulting parties. He referred to
section 189(5) of the Act, which requires an employer to allow
the other consulting party an opportunity to make
representations about any matter about which they are
consulting. Such matters, he said, include the identity of
employees to be retrenched. The respondent had considered
the union’s representations about the withdrawal of
Padayachee’s name from the list of volunteers for retrenchment
Padayachee’s name from the list of volunteers for retrenchment
and had thus discharged its obligations in terms of the Act.
Conclusions
26. The referral was late by a period of some seven months and a
couple of days. Considering that a prospective litigant is given
three months to refer a dispute for adjudication, the period of
delay in this case is substantial. The explanation offered is to
say the least, inadequate. The applicant provides two
contradictory reasons for the late referral. On the one hand he
claims that he did not have money and on the other, he says
that he had given his attorney the certificate of outcome and
was told that the matter would be referred to the Labour Court.
In the latter context, the applicant did not say that his attorney
demanded payment and that he could not afford such payment.
In fact, his evidence under crossexamination was that having
given the certificate of outcome to his attorney, he did nothing,
not even an enquiry by phone to his attorney, to find out what
was happening to his matter. He waited until June 2002 when
he was informed that the matter was set down for trial. For a
period of more than twenty months he did nothing to find out
what was happening to his matter.
27. After the applicant was crossexamined, there was an
opportunity for his attorney to be called to furnish an explanation
for the delay, if applicant’s version was not correct about why
there was a delay. The attorney was not called nor has he
furnished any explanation why the referral was late, give that he
had been given the certificate of outcome timeously. I must
therefore, in the absence of any evidence to the contrary,
accept that the delay was due to the negligence of applicant’s
attorney. This is compounded by the fact that when the referral
was eventually made and a statement of case filed, it was not
accompanied by an application for condonation. Yet applicant’s
attorney must have known that the referral was out of time and
that condonation was required.
28. This is a case where, in my view, the consequences of the
negligence of the attorney must be visited upon the applicant,
see Salojee & Another N.N.O. v Minister of Community
see Salojee & Another N.N.O. v Minister of Community
Development 1965(2) SA 135 (A), NUMSA & Others v Duro
Pressing (Pty) Limited , JS741/01(an unreported Labour Court
judgment of Ntsebeza AJ, dated 13 August 2002).
29. The applicant may not have known that there is a time limit
within which a referral to this court must be made. Such
ignorance however, does not justify his failure to make any
enquiries about the progress in his matter for a period spanning
more than two years, i.e. from 29 November 1999 when he
gave the certificate of outcome to his attorney to June 2002
when he received notification about the trial date.
30. I agree with respondent’s submission that the explanation
tendered for such a long period of delay is woeful.
31. Applicant’s prospects of success are not good either.
32. The concession by applicant’s counsel that the respondent was
not required to consult with the applicant personally about the
proposed retrenchments is wellmade. In Sikhosana & Others v
Sasol Synthetic Fuels (2000) 21 ILJ 649(LC), Brassey AJ
correctly held that the provisions of section 189(1) of the Act
prescribed who the other consulting party should be when
retrenchments are contemplated. The party identified is then
consulted, to the exclusion of all others. The same conclusion
was arrived at by the Labour Appeal Court in Baloyi v M & P
Manufacturing (2001) 22 ILJ 391(LAC). The court held that an
employer’s obligation was to consult with the party identified by
section 189(1) of the Act and that no separate consultations
with an individual employee affected by the retrenchment is
required (at 396CH).
33. The submission that the withdrawal of Padayachee’s name from
the list of employees who had opted for voluntary retrenchment
created an obligation on the respondent to then consult with the
applicant is without merit. The process of calling for volunteers
was a product of the consultation process in which the
was a product of the consultation process in which the
respondent and the union were engaged. Indeed, the collective
agreement between the union and the respondent required that
such a process be considered. The names of volunteers were
submitted to the respondent by the union.
34. It is so that the respondent had accepted Padayachee’s
application for a voluntary retrenchment before the meeting of
23 June 1998 when the union informed the respondent that it
wished to withdraw his name from the list. No agreement had by
then been concluded between the union and the respondent in
this regard. Nothing, however, precluded the union from making
the request that it did, nor was the respondent precluded from
considering and acceding to the request. The same shop
stewards who had submitted Padayachee’s name sought its
withdrawal. The respondent would have been entitled to refuse
to remove Padayachee’s name. But as both Mr Naidoo and Ms
Brown testified, the process of consultation is about give and
take, names are added and removed from lists until a final
agreement is reached. The respondent agreed to the removal of
Padayachee’s name, and it was entitled to do so.
35. In my view, nothing in law or equity precludes an employer who
has concluded an agreement with a collective bargaining agent
from, following further consultations, agreeing to cancel the
agreement. Our law recognizes the termination of an agreement
or contract by the mutual consent of the parties thereto, see
Christie: The Law of Contract in South Africa, 3rd ed ,
Butterworths, 485. In the context of consultations over
retrenchments, and particularly in the context of who should be
retrenched, it can be expected that proposals and counter
proposals would be made, agreement reached and then
changed as names are added, removed or substituted. It is all
part of the process of seeking to reach consensus on the
matters that in terms of section 189 of the Act, require
consultation.
36. Section 189(5) of the Act makes it clear that the employer must
consultation.
36. Section 189(5) of the Act makes it clear that the employer must
allow the other consulting party to make representations over
matters about which the parties are consulting. That obligation
remains on the other consulting party throughout the process.
In casu , the union, of which both the applicant and Padayachee
were members, was the other consulting party. The union
remained the party with whom the respondent was obliged to
consult on matters regarding the retrenchments. One of these
matters was the identity of employees to be retrenched. The
fact that the identities of the candidates for retrenchment
changed as the consultation process unfolded did not create a
separate obligation for the respondent to consult with the
individuals whose names were being removed or added to the
list.
37. In Baloyi v M & P Manufacturing , supra, the court rejected a
submission that because the employer had deviated from the
application of LIFO in selecting the appellant for retrenchment
by considering past performance, there was an obligation on the
employer to consult separately with the appellant to allow him to
make representation in regard thereto. In rejecting this
submission, the court held that by consulting with the
appellant’s union, the respondent had discharged its obligations
in terms of section 189 of the Act. The applicant’s position in
casu is no different from that of the appellant in Baloyi v M& P
Manufacturing, supra. The respondent consulted with SACTWU
about the retrenchments. The union requested that
Padayachee’s withdrawal be accepted. After consultations with
the respondent, both parties agreed to the withdrawal and to the
application of LIFO to select the employee who would be
retrenched as a consequence of the withdrawal. The union
agreed to the selection of the applicant as the employee to be
retrenched, after satisfying itself that he had the shortest service
of the three supervisors from whom the candidate for
retrenchment was to be selected. The applicant was then
retrenched as a result of agreement between the respondent
and the union.
retrenched as a result of agreement between the respondent
and the union.
38. The respondent observed the audi alteram partem rule by
considering representations from the union. The audi rule in the
context of consultation about retrenchments is observed by
having such consultations with the appropriate consulting party
as identified using the provisions of section 189(1) of the Act.
The respondent complied by consulting with the union. The
dismissal of the applicant as a result of applicant’s undisputed
operational requirements was thus both for a valid reason and
in compliance with a fair procedure.
39. It follows that in the light of the long delay, the weak explanation
offered and the absence of any prospects of success, the
application for condonation must fail.
40. Regarding costs, it was submitted on behalf of the applicant that
there should be no order as to costs, regardless of the outcome.
On behalf of the respondent, it was submitted that costs should
follow the result.
41. I am inclined to agree with the respondent’s submission. The
applicant acted on legal advice throughout this litigation,
including having the benefit of counsel’s advice. The decision to
proceed with the mater to trial must therefore, have taken into
consideration the possibility that the applicant could lose and
that the respondent would have incurred legal costs in the
process. The applicant was a member of a union, which
consulted with the respondent prior to his retrenchment and
which is not a party to the litigation. The decision to challenge
the dismissal was that of the applicant and I cannot see any
reason why, having regard to the requirements of the law and
fairness, costs should not follow the result.
42. In the result, I make the following orders:
42.1 the application for condonation is dismissed;
42.2 applicant’s referral of his alleged unfair dismissal dispute for
adjudication is struck off;
42.3 applicant is to pay respondent’s costs.
On behalf of the Applicant: Adv S Rorick, instructed by M.K.
James and Associates
On behalf of Third Respondent: Mr MG Maeso of Shepstone &
Wiley Attorneys..
Date of hearing: 22 August 2002
Date of judgment: 23 August 2002.
___________________________
MASERUMULE AJ