Sneller Verbatim/MLS
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JS 481/02
2003-04-22
In the matter between
ROBERT SPILLMAN Applicant
and
GLOBAL COMMUNICATIONS (PTY) LTD Respondent
_________________________________________________________
J U D G M E N T
__________________________________________________________
LANDMAN J: The applicant, Mr Robert Spillman, was employed
on 7 August 2000 as a national sales manager of PGG Radio
Communications (Pty) Limited. This company became Global
Fleet Management (Pty) Limited and still later became a
division of Global Communications (Pty) Limited, the
respondent in this case.
Mr Spillman was retrenched and his effective date of
leaving GFM was 28 February 2002. The present application,
which takes the form of a trial, is limited to compensation for a
procedurally unfair dismissal.
It is necessary to set out chronologically the factswhich
GFM took or allegedly took to ensure that the dismissal of
Mr Spillman was proceeded by a fair procedure which
complied with section 189 of Labour Relations Act 66 of 1995.
I base this summary chiefly on the evidence of Mr
Werner , the managing director of the company. Mr Spillman
was not a good witness. To the extent that his evidence differs
from that of Mr Werner I prefer that of Mr Werner.
(a) Mr Spillman and Mr Solarsh made an offer in January 2002 to
buy out the business from the shareholders of GFM. Their plan
was brought about as a result of the financial position in which
GFM found themselves. They intended restructuring the
company. This would have involved the retrenchment of more
than half the staff. It would have been done to regain
profitability.
(b) Prior to 8 February 2002 the management of GFM rejected the
offer. This was conveyed to Mr Solarsh who in turn, I assume,
passed this information on to Mr Spillman.
(c) On 8 February Mr Werner met with Mr Spillman, Mr Werner
offered to consult personally and privately with Mr Spillman
regarding the proposed restructuring of GFM and the possible
retrenchment of Mr Spillman. Consultation was to take place
on 22 February.
(d) Notices were sent out that a general staff meeting would be
held on 15 February. This meeting would be about
restructuring.
(e) Mr Spillman was aware of the date and the nature of the
meeting to be held on 15 February. He did not attend it. Nor
did he seek out Mr Werner to hear what had transpired. He
did, however, receive a letter which had been handed out to
the attendees.
(f) About this time Mr Spillman started seeking other
employment.
(g) A further staff meeting was scheduled for 21 February.
Mr Spillman attended this meeting and again letters were
handed out to various members.
(h) Mr Spillman did not meet with Mr Werner on 22 February. Mr
Werner did not seek to find out why Mr Spillman did not
attend the meeting . Mr Spillman did not arrange a new date
or to agree that they would not continue with the intended
private consultations.
(i) On 25 February, a last consultation meeting was held with
members of staff. Mr Spillman arrived when the meeting was
over. Mr Werner gave him a letter which informed him that he
had been selected for retrenchment. No exchanges took place
about the content of the meeting.
(j) Mr Spillman signed form LRA7.11, referring a dispute relating
to an alleged unfair retrenchment to the CCMA. Mr Spillman
indicates in the form that a dispute arose between him and
his employer on 20 February 2002. At this stage Mr Spillman
was assisted by his attorneys of record.
(k) Mr Spillman wrote two letters to Mr Werner. One of these
letters is relevant. In it he proposes four means of saving his
job. Although dated 26 February, the letters were faxed on
27 February.
(l) The referral of the dispute to the CCMA was also faxed to
Mr Werner on or a day after 27 February.
(m) GFM did not deal with these proposals. Mr Spillman was
dismissed with effect from 28 February. He was, however,
entitled to one month's notice.
(n) Mr Spillman commenced employment with Geotab on
1 March.
(o) Mr Werner and Mr Spillman met on 8 March. Mr Spillman
wanted a better severance package, Mr Werner said that this
would be considered. Later Mr Spillman was informed that the
company would not meet his request.
(p) Very much later the severance package, which seems to
include notice pay, was paid out to Mr Spillman.
I am of the view that there were three processes running
parallel during the period 8 February to 28 February. The first
was to be a private personnel retrenchment consultation
between Mr Werner and Mr Spillman. Neither of them cared
for this process as evidenced by their failure to meet or to
discuss its implementation.
The second was an unsuccessful attempt to comply with
what has been described as “due process” by implementing a
process of consultation and letter writing mapped out by
GFM's attorneys and a Durban advocate. The letters were
provided to the recipients at incongruous times. This was a
pro forma and seriously flawed attempt to comply with section
189 of the LRA.
The third process, if it can be described as a process,
was the response of Mr Spillman to the general and private
processes. Mr Spillman was disinterested in both. He knew
what the financial situation of GFM was. He knew, or at least
had a very good idea, that he would be retrenched. He did not
participate in the processes. His belated participation, as set
out in his letter of 26 February, which was delivered on 27
February, was nothing more than an attempt to eliminate his
failure to engage with his employer on the terms which had
been put forward by GFM.
The primary obligation to comply with fair procedure in
accordance with section 189 of the LRA rests upon the
employer. It was conceded by Mr Wesley, who appeared for
the respondent, that this process was flawed. A secondary
obligation rests upon the employee to engage with the
employer, at appropriate times in response to a disclosure of
information and proposals which the employer may make in
the course of consultation.
Mr Spillman did not want to participate in the process.
But the disclosure and consultation process, which would have
triggered the obligation to respond, was so flawedd that this
obligation arose only in a vague and ill -defined manner.
I would have awarded an amount equivalent to two
months remuneration as a solatium for the procedurally
deficient dismissal but I must take into account:
(a) Mr Spillman's disinterest in the process;
(b) His attempt to pad his case at the last moment, (although I
consider this in the context which I have outlined above); and
(c) His search and successful attempt at finding employment the
day after he had been dismissed.
In the circumstances I am of the view that an amount
equivalent to one month's remuneration would be adequate
and reasonable compensation in the circumstances.
I do not intend to make an order regarding costs.
Mr Spillman's conduct regarding his dismissal and his
unsatisfactory performance in the witness box leads me to this
decision.
In the premises:
1. The respondent is ordered to pay to the applicant R24 011,25
as compensation for his procedurally unfair dismissal.
2. The amount in paragraph 1 is to bear interest at the
prescribed rate as from 23 April 2002 until date of payment.
3. There is no order as to costs.
SIGNED AND DATED AT BRAAMFONTEIN ON 27 MAY
2003
___________________
A A LANDMAN
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
FOR APPLICANT:
FOR RESPONDENT