Sneller Verbatim/MS
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J3928/00
2003-02-05
In the matter between
NATIONAL UNION OF MINEWORKERS Applicant
and
MUTUAL CONSTRUCTION COMPANY Respondent
__________________________________________________________
J U D G M E N T
__________________________________________________________
LANDMAN, J : The seven individual applicants in this matter
were employed by Mutual Construction Company TVL (Pty) Ltd
t/a MCC Plant Hire. They were members of the National Union
of Mineworkers, save for one of them, who subsequently
became a member of the union. MCC dismissed the workers
on account of its operational requirements on 14 April 2000.
The workers and the union challenged the dismissal on
the basis that it was neither substantively nor procedurally
fair. The workers were employed on a Witbank Mine where
MCC had a contract to execute the work. The contract was
one which the principal had extended from time to time. On
24 March, MCC issued a pro forma notice to the workers,
advising them that the company contemplated retrenching
workers at the Rustenburg and Witbank mining operations.
These operations were terminated.
The workers were invited to take part in retrenchment
proceedings. Details regarding the proposed retrenchment
was supplied to them. NUM was advised of the proposed
retrenchment on 28 March . A meeting took place between
the workers and the mine manager of Witbank, Mr Jacobs and
his engineering clerk, on 29 March. Mr Nkabinde, a worker
and one of the individual applicants, testified that he attended
the meeting and asked various questions. The workers were
told that MCC would meet with NUM on 31 March.
Mr Jacobs met again on 30 March with some of the
workers including Mr Nkabinde and Mr Sikatane. Mr Sikatane
also testified for the applicants. Some discussion took place
and a minute was prepared. On 31 March Mr Strike Sthwaele,
of NUM head quarters, attended at MCC's head office in
Midrand and the consultation process between the company
and the union began. Some notes are to be found in the file
but they have not been shown to be the minutes of that
meeting.
A further meeting was scheduled for 5 April. This
meeting did not occur. Mr Malahlela of NUM's Witbank office,
who was designated to attend the meeting, could not do so.
The statement of case refers to an official from NUM's
Rustenburg office, who should have attended but was unable
to do so. MCC wrote to NUM on 4 April, stating that the
meeting on 5 April would proceed with the other union
involved, but it agreed to reschedule the final consultation to 7
April or 11 April.
On 11 April Mr Sthwaele wrote to MCC, saying that he
was committed to wage negotiations, and could not attend the
meeting. He proposed that the meeting be rescheduled to 19
or 20 April. Mr Sthwaele said that he had told MCC to contact
the union officials, at Lydenburg, Rustenburg and Witbank, to
deal with the matter as well as a certain Mr C Hulandi. (The
handwriting is unclear and I may have the name wrong.)
MCC went ahead with the retrenchment process. On 14
April it retrenched the workers concerned, including the seven
individual applicants, and paid them what was due, according
to its records, and severance pay. Messers Nkabinde and
Sikatane alleged that the meetings of 29 and 30 March took
place at Rustenburg. They say they had been transferred
there from Witbank, on or about 24 March, and were promised
jobs at the Rustenburg operation. This is most improbable, as
MCC had advised them on the 24th, that it was also closing its
Rustenburg operations and that persons holding the same
jobs, as they were holding at Witbank, would be retrenched. I
find that the individual applicants were retrenched and this
took place at Witbank.
I also accept that the individual applicants earned the
wages reflected on their last salary advices. This is supported
by the UIF cards. No objection was raised regarding the
proprietary of MCC meeting with the workers on 29 and 30
March, as MCC had already arranged to consult with the union.
MCC could have postponed the final consultation to 19 or 20
April or to an earlier date. This may have had some effect, on
the consultations with the other unions, but there was no
reason why it should not have taken place. NUM could also
have made greater effort to attend on 5 April, 7 April or 11
April. NUM's explanation for not doing this is not entirely
satisfactory. Nevertheless, MCC bears the onus of showing
that the dismissals were substantively and procedurally fair.
I am satisfied that the dismissals were substantively fair.
I am uncertain whether the dismissal were conducted
according to a fair procedure, or whether the alternatives
listed in the retrenchment notice, were considered. Mr Vos
addressed some of these issues in his evidence, but the details
concerning the retrenchments as applied to the individual
applicants, could only have been addressed by Mr Jacobs and
his staff. They did not give evidence. I am told that Mr Jacobs
had left the company.
I also do not know how it came about that the seven
applicants were dismissed, whereas only the retrenchment of
the three employees was contemplated on 24 March. In the
result I find that the dismissals were not procedurally fair. I
have a discretion to award the individual applicants
compensation. It is not competent to order their
reinstatement where there is only the procedural defect.
In awarding compensation, I take into account, the
union's contribution to the incomplete consultation, as well as
the inevitability that the workers such as the individual
applicants, could not have easily been placed elsewhere.
I am of the view that compensation equivalent to three
months remuneration would be sufficient. I make the following
order.
1. The respondent is ordered to compensate the individual
applicants in the amount equal to three times their respective
monthly wage, as set out on pages 28 to 34 of Bundle A.
2. There will be no order as to costs.
SIGNED AND DATED AT BRAAMFONTEIN ON 25
FEBRUARY 2003
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A A Landman
Judge of the Labour Court of South Africa
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