IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN DURBAN
Case No. D237/2002
In the matter between:
B. MAHLINZA & 11 OTHERS Applicants
and
ZULU NYALA GAME RANCH (PTY) LTD Respondent
JUDGMENT
1. The twelve Applicants in this matter contend that they were unfairly
retrenched by the Respondent. It is common cause that all of the Applicants
were, at all material times, members of the South African Commercial
Catering and Allied Workers' Union (SACCAWU).
2. The Applicants contend that their dismissals were both substantively and
procedurally unfair. In this regard they complain that they were never
consulted at all in regard to their retrenchments and neither was their
registered union, namely SACCAWU.
3. The Respondent's reply to the Applicants' Statement of Case is devoid of any
particularity concerning a defence. Save for admitting its own identity and
that this Court had jurisdiction to determine the dispute, the Respondent
denied everything else.
4. The first Pretrial Minute also failed to reveal what the Respondent's case was
to be. Supplementary Pretrial Minutes that were filed indicated, finally, that
the Respondent's case was that :
4.1. there was a general need to retrench insofar as there existed a commercial
rationale which was based on the operational requirements of the
Respondent;
4.2. at all material times the Respondent had a closed shop agreement with
another union called the National Union of Farm and Allied Commercial
Employees (N.U.F.A.C.E);
4.3. the Respondent said that it did not have to furnish the Applicants with a list of
employees and their dates of engagement because all of that information
was furnished to the representative trade union i.e. N.U.F.A.C.E;
4.4. the Respondent submitted that a selection criteria of last in first out was
used, save in the case of two instances where skills and special
circumstances were preferred;
4.5. the Respondent contended that it was only obliged to consult N.U.F.A.C.E,
that there was no legal duty upon it to consult with the Applicants or their
trade union and that the selection of employees for retrenchment was done
in consultation with N.U.F.A.C.E.
5. In essence the Respondent's case was that it was only obliged to consult with
N.U.F.A.C.E, which it did and in that regard selection criteria were agreed and
implemented with N.U.F.A.C.E.
6. It is trite that the Respondent bore the onus of establishing that the dismissals
of the Applicants were fair.
7. The Respondent called two witnesses to advance its case. The first witness
was Mr Deon Steyn, the Lodge and Marketing Manager. Although he gave
some evidence about the commercial rationale for the Respondent's
proposed reduction in staff generally, at the material time, he said he was not
involved in the retrenchment exercise at all and he accordingly gave no
evidence about how the individual applicants were selected for retrenchment.
He gave evidence at some length concerning the dates of engagement of
those employees who had been employed after the retrenchment in question
but, in view of my finding in this matter, all of that evidence is not material to
the real issue.
8. The second witness called by the Respondent was a Mr Opperman. He was
a labour relations practitioner, operating as a consultant in the firm
"Necessitas" and he testified that he had been retained by the Respondent in
order to guide the retrenchment process. Notwithstanding the Respondent's
contention in the Supplementary Pre trial Minutes that it was not obliged to
consult with SACCAWU, he advised the Respondent to consult SACCAWU
and SACCAWU were accordingly invited to a meeting concerning the
proposed retrenchments. That meeting took place on the 4 th of October
2001. As I understand Mr Opperman's evidence he did this not because he
thought the Respondent was under a legal obligation to consult SACCAWU
(even though he concedes that SACCAWU had members employed by the
Respondent) but because he thought that this was fair.
9. There is a dispute of fact about what happened at the meeting on 4 October
2001 but in view of the finding I have come to in this matter, that dispute of
fact is not material. It is however common cause that following the meeting
both SACCAWU and N.U.F.A.C.E wrote to Opperman on 16 October 2001
requesting feedback meetings with their members. N.U.F.A.C.E were
granted such a meeting but, for reasons which are not entirely clear to me, Mr
Opperman did not reply to the letter from SACCAWU which was sent to him
on the 16 th of October 2001.
10. Notwithstanding this request from SACCAWU Mr Opperman says that in his
opinion SACCAWU had decided to withdraw from the consultation process
because of their attitude at the meeting of 4 October 2001 but he could give
no satisfactory explanation as to why SACCAWU, if that was their attitude,
nevertheless requested a meeting with their membership in regard to the
proposed retrenchment exercise. Neither could Mr Opperman give any
satisfactory explanation about why he then decided to exclude SACCAWU
from the process. On the 26 th of October 2001 he sent N.U.F.A.C.E a formal
letter about the proposed retrenchments but because he had, by that stage,
decided to exclude SACCAWU from further involvement, that letter was not
sent to SACCAWU and it follows that they were not involved in any other
meetings with the Respondent.
11. Having invited SACCAWU to a meeting concerning the retrenchment of their
members, the evidence does not provide any satisfactory explanation as to
why SACCAWU was subsequently excluded from the whole process. For this
reason alone the dismissals of the Applicants is procedurally unfair.
12. Notwithstanding the fact that it did consult SACCAWU initially, the
Respondent contends that it was not lawfully obliged to and that SACCAWU's
exclusion, later in the process, is therefore of no consequence. Reliance on
this contention by the Respondent is ill founded.
13. In this regard, Section 189 (1) of the Labour Relations Act sets out clearly
who an employer must consult concerning retrenchments. In this matter
there is no evidence of a workplace forum in the workplace and the only thing
that would excuse the Respondent from consulting with SACCAWU, a
registered trade union which, to the knowledge of the Respondent had
members in its workforce, is the existence of a collective agreement requiring
the Respondent to consult with the other party to the collective agreement
about retrenchments. There is no such collective agreement. What the
Respondent relied upon was the agency shop agreement that it had
concluded with N.U.F.A.C.E but that collective agreement imposes no
obligation on the Respondent to consult N.U.F.A.C.E about retrenchments.
14. For all of the above reasons the Respondent was therefore obliged to consult
SACTWU or at least the individual Applicants about their retrenchment. It did
neither and the Respondent's whole case falls into a vacuum.
15. During argument, Mr Koornof properly and fairly conceded that his whole
case was reliant on the proposition that the Respondent was entitled to deal
only with N.U.F.A.C.E in regard to the retrenchment of the Applicants. That is
so because there was simply no other evidence from the Respondent which
discharged the onus of establishing that fair selection criteria had been
applied in regard to the dismissals of the Applicants.
16. In this regard the only evidence that was led by the Respondent was the
evidence of Mr Steyn, the Lodge and Marketing Manager, and Mr Opperman.
Mr Steyn testified that he had not been involved in the retrenchment process.
That left the Respondent with the evidence of Mr Opperman in order to
establish that fair and objective selection criteria were applied to the
dismissals of the Applicants. Leaving aside the difficulty that Mr Opperman
was the labour consultant hired in order to advise the Respondent in the
retrenchment process (and that he would accordingly have a clear interest in
protecting his advice in court) Mr Opperman did little to advance the
Respondent's case in this connection. All that he said about selection criteria
was that LIFO had been the initial criteria used but that N.U.F.A.C.E had
requested changes and changes were agreed. No lists of employees were
put up (with their engagement dates) and although Mr Opperman says
N.U.F.A.C.E were consulted on the final selection criteria there was no
evidence as to what this final selection criteria was, how it applied to the
Applicants and in fact there is just no evidence which demonstrates that the
Applicants were fairly selected for retrenchment.
17. In the circumstances the Respondent has not discharged the onus of proving
that the Applicants' dismissals were fair and in the result I find that the
dismissals of the Applicants were both procedurally and substantively unfair.
18. The primary remedy that I must give effect to, in terms of the Labour
Relations Act, is reinstatement. However, in my judgment a reinstatement
retrospective to the date of the Applicants' dismissals (i.e. November 2001) is
not fair. The Respondent did present evidence about a marked downturn in
bookings at the material times, due to a variety of factors, including the events
of September 11, which according to the Respondent dramatically affected
tourism. There was no serious challenge to this evidence and in my opinion
the Respondent has established that it was entitled to take steps to protect
the financial integrity of its business. The flaw in its case is accordingly not
that no commercial rationale was demonstrated in respect of proposed
retrenchments, it is rather that the Respondent has not discharged the onus
of proving that the dismissals of the individual Applicants and their selection
for retrenchment was fair. In the circumstances I consider that an order of
reinstatement retrospective to the date of the Applicants' dismissals is
inappropriate in the particular circumstances of this matter.
19. The difficult task is to determine what relief the Applicants should get, in
addition to their reinstatement, which they are clearly entitled to.
20. All of the Applicants received retrenchment pay and that is a factor I must
take into account. It was contended, by the Respondent that three of the
Applicants had been reemployed but that is disputed by the Applicants (even
though the particular employees who are said to have been re employed did
not give evidence). I invited the parties to resolve this issue but this was not
done. If they were reemployed I do not know in what position they are
working and what they are getting paid.
21. The order of reinstatement will cause substantial disruption to the business of
the Respondent. The Respondent may have to embark immediately on
another retrenchment exercise, which may entail additional disruption and
cost, but such disruptions are the inevitable consequence of a reinstatement
order. However, it is clear that the Respondent was suffering financially at
the material times. The delay in setting matters down for trial (this case
concerned a dismissal in November 2001) should also not fall on the
shoulders only of the Respondent. Had this dispute been determined earlier,
as was certainly envisaged when the 1995 Labour Relations Act came into
force, the problem of substantial backpay would not have been as large.
22. During the evidence of Mr Steyn reference was made to legal entities other
than the Respondent in this matter. This related, apparently, to what may be
different ownership of the businesses from which the Applicants were
retrenched or in respect of which they sought reinstatement. These entities
all operate in the Zulu Nyala Group and Mr Koornof undertook that one
employer would give effect to any order that I would make. In this regard the
Respondent is cited as Zulu Nyala Game Ranch (Pty) Limited but Mr Koornof
said that the correct legal description of the Respondent may be Zulu Nyala
Game Lodge (Pty) Limited. He undertook, on behalf of that legal entity
(insofar as it was necessary) to give effect to any order that I make. In the
result I make the following order :
22.1. the dismissals of the Applicants in this matter were procedurally and
substantively unfair;
22.2. the Respondent, alternatively Zulu Nyala Game Lodge (Pty) Limited, is
directed to reinstate the Applicants on the same terms and conditions as
applied to them before their dismissals in November 2001;
22.3. the aforesaid reinstatement order is not fully retrospective. In this regard the
Respondent, alternatively Zulu Nyala Game Lodge (Pty) Limited must pay to
each of the individual Applicants a sum equivalent to the wages they would
have earned prior to their dismissals calculated for a period of three months
only;
22.4. the Applicants are not entitled to any other backpay;
22.5. there was no legal representation and accordingly there is no order as to
costs.
DATED at DURBAN this 30 th day of APRIL 2003.
_____________________
N P WOODROFFE AJ