IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO.
J4193/99
In the matter between:
NATIONAL UNION OF METALWORKERS
OF SOUTH AFRICA
1st Applicant
G M MTHEMBU & 15 OTHERS 2nd and further
Applicants
and
CENTRAL INFORMATION SERVICES (PTY) LTD
Respondent
__________________________________________________________________
____________
JUDGMENT
__________________________________________________________________
____________
NDLOVU AJ
Introduction:
[1] In this trial the Second and Third Applicants (the “individual
Applicants”) claimed that their dismissal on 18 August 1999 by
their former employer company, Central Information Services
(Pty) Ltd., (the Respondent herein) was unfair.
[2] Hence, together with their representative trade union, the First
Applicant herein (the “Union”) they instituted the present action,
seeking relief, including the declaration that the dismissal was
both substantively and procedurally unfair, directing their
reinstatement to the Respondent’s employ and ordering
Respondent to pay them compensation.
[3] The action was preceded by a certificate issued by the relevant
Bargaining Council to the effect that the conciliation process
failed to resolve the dispute between the parties.
The Parties’ Contentions:
[4] The evidence for the Applicant was adduced by Mohapi Lazarus
More, (Lazarus More) the Union’s local organiser and Gabriel
Motlalentwa Mthembu, the Second Applicant herein. The
evidence for the Respondent was adduced from Barend
Hermanus Pieterse, the Respondent’s co-director and Aubrey
Charles, the Respondent’s Quality Control Inspector.
The Applicants’ Case:
[5] Lazarus More testified that he had no knowledge about the
retrenchment of the individual Applicants which took place on 18
August 1999. He told the Court that he was himself dismissed
by the Union with effect from 10 August 1999. In other
words,when the individual Applicants were dismissed, he was no
longer employed by the Union. He said he knew nothing about
meetings that were alleged to have taken place during July and
August 1999. He was last at the Respondent’s work premises in
or about May 1999 when he had gone there to request for a
personal loan.
[6] Lazarus More was, however, reinstated in the Union’s employ in
or about late October 1999 after a successful internal appeal
against his dismissal. This was then long after the individual
Applicants were dismissed.
[7] According to Lazarus More he only had knowledge about
retrenchments that took place in April 1999 at the Respondent’s
work place. In respect thereof he had been invited to a meeting
of the Respondent’s management, shop stewards and workers.
The worker members had informed him that there were problems
at the work place, which had resulted to them working short
time. Short pay, as a result, had compelled them to take cash
loans from the Respondent to buy sundries, such as groceries. At
the end of the week these loans would be deducted from their
wages, resulting to them taking almost nothing home. Hence,
about 30 of them were opting for voluntary retrenchment.
[8] Under cross-examination, Lazarus More denied a suggestion that
during April 1999 the Respondent’s management had in fact
sought to retrench 60 employees, but that as a result of
negotiations and pleas by the Union only 31 had been
retrenched. He further denied that the meeting he attended
(prior to the April retrenchments) was a consultative meeting
envisaged in Section 189 of the Act. He contended that it was
only a general meeting at which he had been invited by the
Union members. However, he admitted that also present at the
meeting were Pieterse, the Respondent’s co-director and other
white employees (who were seemingly non-Union members).
[9] Mr Jonker (for the Respondent) put it to Lzarus More that a
consultative meeting was held at the Respondent’s work place
during July 1999 and that it was part of a consultative process
that culminated in the retrenchments on 18 August 1999. It was
put to Lazarus More that he was part of that process, which he
denied.
[10] Lazarus More was referred to a clause in paragraph 6.2 of the
Applicant’s Statement of Claim, which was to the effect that the
Applicants appeared to acknowledge that certain consultation
meetings were held, and that their only problem was that they
were not accorded sufficient opportunity to make considered and
effective alternative proposals at those meetings. He had no
comment to this issue.
[11] The next witness for the Applicants was Mthembu. He was in the
Respondent’s employ from August 1998 until 18 August 1999,
when he and other individual Applicants were dismissed by the
Respondent. He was a guillotine operator and also a shop
steward, affiliated to the Union.
[12] He told the Court that prior to the short time being introduced,
they were working 44 hours a week plus overtime. They started
working short time when the working time was reduced to 35
hours a week. In January 1999 the weekly hours were further
reduced to 28.
[13] He told the Court that on 16 August 1999 he was instructed by
Pieterse to inform the workers to attend a meeting on 18 August
1999 on the company premises. At that meeting Pieterse
referred to the work crisis which had resulted to the short time.
He pointed out that as a result of less hours worked, the
Respondent was under-producing. He then said that he would
not further reduce the working hours below 28 hours per week.
Instead, he suggested to the workers to discuss the issue
amongst themselves and return to him with suggestions.
[14] The workers informed Pieterse that they had no suggestions with
regard to the question whether to increase or decrease the 28
hours-weekly working time. In other words, the workers left the
matter in Pieterse’s discretion.
[15] Pieterse had then left the meeting. Shortly thereafter he
returned with a list of 16 names which he called out and said that
those were the workers to be retrenched. He said he had no
alternative but to retrench them. Those 16 employees were the
individual Applicants.
[16] No Union official was present at the meeting of 18 August 1999.
Later in his evidence, Mthembu disclosed that although he had
been a Union member since 1998, he was however not paying his
Union subscriptions. In other words no deductions from his
wages were being made for this purpose. He also told the Court
that they had not advised the Union about the meeting of 18
August 1999.
[17] He testified that once their names were called out they were then
asked to leave the company premises immediately and return on
20 August 1999 for their severance pay.
[18] On 20 August 1999 not all of them came for the severance pay.
Those who came, including himself, (Mthembu), were given
letters and asked to sign these as acknowledgement that they
had received their payments. They were asked to sign even
before they were actually paid. For his part, he was paid for the
notice and severance package.
[19] He further told the Court that the first retrenchment had taken
place in or about May 1999. Consultative meetings had taken
place prior to that retrenchment. During that consultative
process the Respondent’s representatives had explained to them
about the financial problems the Respondent was encountering in
its business operations.
[20] Mthembu further said there were certain meetings which were
held starting from January 1999, but which had nothing to do
with the Respondent’s financial problems. According to him, the
meetings were only in respect of the work problems, which he
said related to the issue about an impending Telkom deal. He
said the Respondent’s management was informing them that
Telkom had promised to offer the Respondent a huge work
contract and that the Respondent was just waiting for that
moment to come. These meetings were held with management
almost every month.
[21] On the same day of their retrenchment (that is, 18 August 1999)
they went to report the matter to the Union, where they were
told that the Union’s local organiser was not in the office and that
he had been absent for some days. He emphasised that there
was no consultation that preceded their retrenchment. He was,
therefore, asking the Court to order that he be reinstated and be
paid compensation by the Respondent. At the time of his
dismissal he was earning R10,21 per hour.
[22] Under cross-examination, Mthembu admitted that during 1998
the Respondent was congested with workload. Hence, they were
working full normal hours (that is, 44 hours) plus overtime.
However, the workload dropped by January 1999, when the short
time was introduced.
[23] At the Bargaining Council, to which they had referred their
dispute for conciliation, they were not represented by the Union.
However, he denied that the Union did not declare the dispute to
the Bargaining Council on their behalf. He said it was only his
mistake not to have reflected the Union’s name on the
conciliation referral forms, but his own name. He said he and
the co-individual Applicants had referred the dispute for
conciliation in their capacity as members of the Union and that,
for that reason, the Union was represented.
[24] It was put to him that the Section 189 consultative meetings
were held during July 1999 and August 1999, to which he
responded that he had no knowledge thereof. He further claimed
that they were not given notices of the retrenchment. He also
denied that there were two consultative meetings held prior to 18
August 1999.
[25] Mthembu admitted, however, that they were working short time
due to the Respondent’s under-production. He contended,
however, that the Respondent could have decreased the working
hours even below 28 hours per week, instead of retrenching
them. When asked why he and other co-individual Applicants
did not propose that idea as an alternative measure, he said they
were not given the chance to make alternative proposals.
[26] He acknowledged that, since he was given the notice pay and the
severance pay, the Respondent was not owing him anything.
Respondent’s Case:
[27] Pieterse held the BSc (Engineering) and MBA degrees. His co-
directors were Zweli Hlongwane and Christo Marais.
[28] He referred the Court to the Respondent’s financial report dated
10 August 2000 for the Respondent’s financial year ended 29
February 2000, which was prepared by independent chartered
accountants and auditors, Basson & Partners. The report
showed that the Respondent’s business sustained a net loss of
R44 483,00 during the 2000 financial year, compared to a net
profit of R95 824,00 for the previous financial year (1999). The
report was included in the Court file.
[29] Pieterse told the Court that the Respondent was involved in the
business of manufacturing steel towers or masts and commenced
its operations in 1998. From that year until early 1999 their only
client was Telkom. The towers were supplied to Telkom when it
was engaged with the installation of telephone lines in rural
areas. Telkom flooded the Respondent with heavy workload,
even beyond the Respondent’s expectations. Hence, the
business was booming during the first year of the Respondent’s
operation. As a result, the Respondent’s first financial report
showed a turnover of over R7 million.
[30] When the business started in April 1998 it employed only 18
workers, but by December 1998 there were some 120 workers
employed. There was a two shift system, which made the
business activity continuously running for 24 hours a day and 7
days a week during that period (April 1998 to December 1998).
[31] However, things changed for the bad by December 1998 when
the Respondent was informed that Telkom would no longer be
rolling out their telephone network any further. This created a
huge concern for the Respondent. Indeed, in January and
February 1999 the Respondent received no work from Telkom,
which advised the Respondent that there was to be a halt in its
rural project, until further notice. The halt was apparently
occasioned (as the Respondent was made to understand) by the
fact that certain Americans and Malaysians had bought 30% of
Telkom shares. The outstanding work the Respondent had
obtained from Telkom was completed by the end of February
1999.
[32] On 9 April 1999 the Respondent issued a letter to all employees
and shop stewards, whereby they were informed of the
operational crisis and of the Respondent’s intention to rationalise
its operation, which could probably involve retrenchments. In
the letter a meeting with the employees was proposed for 18
April 1999. At the meeting these matters were fully discussed
with the workers.
[33] Pieterse further testified that when the situation did not improve,
the short time scheme was introduced. He said the normal
working hours were initially reduced to 36 hours per week.
Subsequently this was further reduced to 18-20 hours per week.
[34] He also told the Court that at all the consultative meetings the
Respondent was represented by its labour consultant, Donald
Lotter.
[35] The first retrenchment was effected on 23 April 1999. Between
April 1999 and August 1999 there was still a low rate of incoming
workload. The employees were still working short time, which
did not ameliorate the situation. As a result, the Respondent
was forced to engage in another retrenchment exercise in August
1999.
[36] In terms of a collective agreement with the Council, the
Respondent had advised the Council of its operational crisis. The
notification was acknowledged by the Council on 12 July 1999.
[37] Pieterse further told the Court that at the end of July 1999 the
management held a meeting with Lazarus More and other shop
stewards on the issue of the Respondent’s low business activity
and the necessity for a further staff reduction. He told the Court
that it was this consultative process which culminated in the next
retrenchment on 18 August 1999, which was the subject of the
present litigation. He told the Court that there were, however, no
minutes taken at the meeting of July 1999 because nobody was
there to take the minutes, since the Respondent’s administrative
staff had also been reduced.
[38] The witness refuted the allegation in the Applicant’s statement of
claim that the individual Applicants were dismissed because of
their involvement with, or membership of, the Union. He pointed
out that the Union was not a party to the dispute at the
conciliation level, but only the individual Applicants in their
personal capacities. For this reason, he challenged the Union’s
locus standi before this Court, since its dispute with the
Respondent was not concilaited before the Council.
[39] Pieterse further submitted that if there had been no consultation,
as the Applicants now claimed, the Union would have taken the
matter up with the Council. Since this did not happen, was proof
that the consultation did in fact take place. He further
contended that the Union never complained to the Respondent’s
management about lack of consultation prior to the
retrenchments.
[40] He further told the Court that Lotter was always taking minutes
at the consultation meetings. He said Lotter was expected to
have kept those minutes. Lotter was employed by the
Respondent and therefore keeping the minutes would have been
part of his duties, Pieterse testified. However, the Respondent no
longer had any association with Lotter since 2001.
[41] The witness further stated that the selection criteria employed in
the retrenchment exercise of 18 August 1999 was Last In First
Out (LIFO) plus job skills. He further pointed out that the Union
never asked for the postponement of the retrenchments, nor did
it make any request for any written information, in terms of the
Act. He said it was not true that the Applicants were not
accorded sufficient opportunity to submit their alternative
proposals.
[42] Pieterse further submitted that if there had been any
victimisation to any of the Union members, as alleged by the
individual Applicants, it would have been expected of the Union
to have confronted the Respondent. This, the Union never did,
which served as proof that there was no such victimisation. He
suggested that Mthembu had taken the matter up only because
he had become upset when he was selected as one of the 16
employees to be retrenched.
[43] It was put to him that the LIFO principle was never applied.
Pieterse refuted this suggestion. Mr Cartwright (for the
Applicants) further put it to the witness that if the LIFO principle
had been properly applied, Mthembu would not have been
retrenched ahead of one Andries Motsepe, who was also a
guillotine operator as Mthembu, but who had joined the
Respondent after Mthembu. Pieterse’s response was that whilst
Mthembu was only a guillotine operator, Motsepe was multi-
skilled, in that, in addition to being a guillotine operator, he was
also a cropper operator and a press operator. Hence, there was
an operational need on the part of the Respondent to retain
Motsepe’s services for his multi-work skills.
[44] Pieterse insisted that the consultation process had begun in July
1999, which culminated in the retrenchments of 18 August 1999.
However, he could not produce documentary proof to this effect.
He said he would have to contact Lotter for this documentation,
including the minutes of the meetings he referred to. Further,
he said it would be easy to contact Lotter who was then working
in the Vaal Triangle.
[45] He said, in all, there were three meetings which were held before
the retrenchments on 18 August 1999 namely on 16 April 1999;
July 1999 and 18 August 1999, the latter date being the date of
the dismissal of the individual Applicants. Of course, it seems to
me that the meeting of 16 April 1999 would not have been
directly linked to the dismissal of the individual Applicants, but
rather the April retrenchments. Pieterse himself told the Court
that the consultative meetings that resulted to the August
retrenchments had started in July 1999.
[46] The next Respondent’s witness, Charles, told the Court that he
started working for the Respondent from the time of its inception
in April 1998. He was also himself a shop steward.
[47] Charles confirmed that when the Respondent’s business started
in April 1998 it operated 24 hours a day and 7 days a week.
However, the workload had gradually decreased. This situation
had resulted in the first retrenchments in April 1999.
[48] He told the Court that after the April retrenchments the next
consultation meeting was held in July 1999. He said both the
meetings of 16 April 1999 and July 1999 were attended by
Mthembu and Lazarus More. Pieterse was also always present at
the meetings. Suggestions were made that the LIFO principle
must be used in the event of further retrenchments, which idea
was agreed upon. During the July 1999 meeting, the
management gave the employees two options to choose from,
namely:
[48.1]That the short time scheme be intensified, in that the working time
be further reduced to below 28 hours per week; or
[48.2]That further retrenchments be effected.
He said the employees went for option 2.
[49] According to Charles, the next meeting (after July 1999) was held
on 16 August 1999, at which all employees, including Mthembu,
other shop stewards and Lazarus More were present.
[50] He could not recall whether the affected employees had known
about the meeting of 16 August 1999. He was also not sure of
what was discussed at that meeting, save that, in general terms,
it was still about further possible staff reductions. He could also
not remember how long after that meeting the next
retrenchments were effected.
[51] In response to questions by Cartwright, Charles stated, among
other things, that at the meeting of July 1999 Lazarus More was
present. In fact, he said, it was Lazarus More who was taking
minutes for the Union at that meeting, whilst Lotter was taking
minutes for the Respondent.
[52] When it was put to him that according to Pieterse’s evidence, the
only meeting in August 1999 was on 18 August and not 16
August, the witness insisted that the meeting was held on 16
August. He said he got this information from Mr Tee’s diary.
Tee was the third witness for the Respondent.
[53] Arthur Maxwell Tee, employed by the Respondent as quality
controller since 1998, told the Court that he had taken notes at
the meeting of 16 August 1999, which, however, were only his
personal notes. Nobody had asked him to do so, but it was only
his habit to take notes. He said he did not see anyone else
taking notes at the meeting of 16 August. In response to cross-
examination, he said there were two other meetings which were
held prior to 16 August 1999. He said there was, by the way,
another meeting which was held on 18 August 1999. He could
not remember the date when the two meetings prior to 16
August were held. He could not even remember the months
when that took place.
[54] He also told the Court that Lazarus More and Mthembu were
present at both meetings of July 1999 and 16 August 1999.
[55] However, when he was later asked about whether Lazarus More
was present at the two meetings prior to 16 August, he said he
had, only seen Lazarus More once and that, therefore, he could
not even be able to identify him (Lazarus More) again.
[56] Later in his evidence the witness told the Court that he took
notes only at the meetings of 16 August and not of July 1999 and
18 August 1999. He was also not sure of how many meetings
were held, which led to the 18 August retrenchments.
Analysis and Evaluation of the Evidence:
[57] The following facts are common cause or not in dispute:
[57.1]The individual Applicants were employed by the Respondent before
their dismissals.
[57.2]In or about August 1998 the individual Applicants started working
short time, as per arrangement with the Respondent’s
management, and by August 1999 they were working only 28
hours per week, from the normal time of about 44 hours per
week.
[57.3]There was a number of employees who were retrenched by the
Respondent in or about April 1999 as a consequence of the
Respondent’s business operational problems.
[57.4]The Respondent dismissed the individual Applicants on 18 August
1999.
[58] In issue and which the Court is required to determine is whether
the dismissal of the individual Applicants was substantively
and/or procedurally unfair and, if so, whether or not they are
entitled to reinstatement and/or compensation.
[59] The Respondent filed a financial report, prepared by independent
chartered accountants and auditors in respect of it’s business
operation for its financial year period 1/3/1999 - 29/2/2000, and
which showed a net deficit of R44 483, in comparison to the net
profit of R95 824 for the previous financial year ended 28/2/1999.
This was despite the fact that the latter-mentioned period was
constituted of 11 months, as the business commenced only in
April 1998.
[60] The financial report aforesaid was not challenged by the
Applicants. There is, therefore, no reason for the Court not to
accept it. On the basis of the report it is hard to dismiss a
submission that something went terribly wrong and bad for the
Respondent’s business from early 1999. It is clear that if nothing
was done about the situation, the continued viability and survival
of the Respondent’s business would, in all probability, have been
jeopardized.
[61] I am, accordingly, satisfied that the Respondent discharged its
onus in proving beyond a balance of probabilities, that the
dismissal of the individual Applicants was substantively fair.
(section 192(2)).
[62] On the aspect of procedural fairness, the Applicants contended
that the Respondent did not allow them any meaningful
consultations, as envisaged in Section 189, to take place before
finally deciding on the retrenchments.
[63] It seems to me that although the Respondent appears to have
done something towards ensuring consultation with the individual
Applicants, the efforts were far from enough, to have ensured full
compliance with the provisions of Section 189.
[64] According to the Respondent’s case, the consultative process
was started at the meeting of July 1999, which culminated in the
retrenchments of 18 August 1999. According to the Applicants’
case, no such meeting ever took place.
[65] The Respondent’s witness, Pieterse and, indeed, the
Respondent’s Counsel, put emphasis in the Applicants’
submission contained in paragraph 6.2 of the Applicants’
Statement of Claim, which the Respondent apparently construed
as favourable to its case. In this paragraph the Applicants allege
as follows:
“6.2 Respondent failed to allow the Applicants or their trade union
representatives sufficient opportunity to make considered and
effective alternative proposals at the consultation meetings”.
[66] No satisfactory explanation was given by the individual
Applicants of why this apparent self-contradictory averment was
made in their Statement of Claim if, in fact, there was no
consultation at all conducted with them by the Respondent, in
terms of section 189. When Mr Lazarus More was asked to
comment about this averment, he said he had no comment.
When the same question was put to Mthembu, he said that the
“consultation meetings” mentioned in paragraph 6.2 of the
Statement of Case, referred to consultation meetings which did
not take place. I have no understanding of what this means.
Such response was simply evasive, if not unintelligible.
[67] Accordingly, the Court would have been satisfied that the
Respondent did in fact conduct certain consultation meetings
with the Applicants which were relevant to the retrenchments of
18 August 2002 if the Respondent reliably indicated which those
meetings were. As I have indicated, it does not seem that the
provisions of section 189 were fully complied with by the
Respondent in any attempted consultative process.
[68] Although there is no hard and fast rule about the form which the
section 189 consultation meetings should take, it is common
practice to have all meetings minuted, for the record sake. It is a
notorious fact to this Court that in a large number of cases where
the procedural fairness of a dismissal is in issue, the disputes
centre around the question of whether or not the section 189
consultation meetings were held between the employer
management on the one hand, and the unions and/or affected
employees, on the other. It is, therefore, quite unusual and,
indeed, strange that, in this day and age, there can still be a
company which does not seem to realise the importance of
taking minutes of such meetings and keeping a record thereof,
such as the Respondent failed to do in this case. The fact that
the Respondent had no adequate administrative staff to attend to
this aspect, is no excuse. In any event, Pieterse told the Court
that Lotter was supposed to have taken the minutes at all
meetings. He aslo said Lotter was easily contactable by him. Yet
no minutes were produced nor Lotter called to testify.
[69] Under the circumstances I am inclined to accept that if any
consultation meetings were held, those were meetings only as
admitted to by the Applicants. For instance, it was admitted by
the Union that consultation meetings were held in respect of the
April 1999 retrenchment exercise, which, although not directly
relevant to the present case, it served to establish the point of
the downturn in the Respondent’s productive and income-earning
capacity. With respect to the retrenchment of August 1999, the
Respondent alleged that the consultative process started with
the meeting of July 1999 and followed by the final one in August
1999. There were contradictions between the evidence of
Pieterse, on the one hand, and Charles and Tee, on the other,
with regard to the exact date of the meeting or meetings of
August 1999. Pieterse appeared adamant that only one meeting
was held on 18 August 1999, which was also the date of the
individual Applicants’ dismissal. On the contrary, Charles and
Tee said it was held on 16 August 1999.
[70] As for Pieterse’s version, I am unable to conceive how, in all
probability, a consultation meeting could have been held on the
same day on which the employees were dismissed. I will return
to this point shortly.
[71] As a process, a section 189 consultation is expected to consist of
proposals and counter-proposals, caucus meetings, consultations
with respective principals, etc. The process also involves a lot of
lobbying amongst the union officials and members as to what
stand to take on specific issues. Whatever the size a business
entity can be, I hardly imagine a scenario where a section 189
consultative process, if properly conducted, could be started and
finalised in one, or even two days. It was even more so where
the retrenchment exercise had affected 16 employees.
[72] In my view, accordingly, the meeting of 18 August was no
consultation meeting, but only a meeting whose main agenda
was to announce the fate of the 16 employees to be retrenched.
They were only to be advised about their last date of work and
when they should return to collect their notice and serverance
pay. It was not part of any consultative process, as envisaged by
section 189.
[73] As for the version of Charles and Tee who contended that the
meeting was held on 16 August, I find their evidence unreliable in
this regard. Charles told the Court he got this information from
Tee’s diary on the same morning that he came to Court to testify
(that was, 23 September 2002). He was testifying about an
incident that allegedly took place more than 3 years previously.
Admittedly, therefore, he had no personal independent
recollection of what he was testifying about, particularly with
regard to the dates of the events. Under the circumstances, a
reasonable possibility could also not be excluded that he might
have been referring to the consultative process that preceded
the April 1999 retrenchments, but not directly linked to the
retrenchment of the individual Applicants on 18 August 1999.
[74] Tee told the Court, at the outset, that he did not remember the
dates when the meetings were held. He only saw in his personal
diary that he recorded about a meeting having been held on 16
August 1999. The diary was not admitted as evidence, nor was
a proposal made in this regard by Jonker. The issue of the
admissibility of the diary entry was therefore, never entered into.
However, even on the assumption that the diary entry was
admissible it would, in my view, not take the Respondent’s case
any further on this aspect.
[75] According to his diary, Tee told the Court, Pieterse gave the
workers two options to choose from, namely:
[75.1] That a further short time be introduced;
[75.2] That, otherwise, 16 workers would be retrenched.
[76] Even if this happened, such approach on the part of Pieterse (as
alleged by Tee) could never be said to have constituted a
consultation process as envisaged in section 189. The workers
were simply confronted with two pre-determined options to
choose from.
[77] It was also remarkable that, although he had earlier told the
Court that it was his habit to take notes of meetings that he
attended, he did not do so in respect of the two meetings which
he alleged were held with the Union and/or the individual
Applicants, one in July 1999 and another on 18 August 1999. He
further alleged that there were two other meetings which were
held sometime prior to 16 August 1999 and that he was not sure
whether he took notes in respect thereof. It was not clear in his
evidence whether the alleged July meeting was one of those “two
prior meetings”.
[78] The Court further took into account the fact that Tee gave
evidence after he had been sitting in Court throughout the
proceedings before he was called to testify. Jonker might not
have anticipated that the situation would arise when he would
need to call Tee. However, that does not alter the position that
Tee was in Court and listening to all the evidence before he took
the witness stand. Hence, the credibility weight of Tee’s
evidence was to a certain degree adversely affected.
[79] In his evidence-in-Chief, Charles referred only to two meetings,
one in July and the other on 16 August 1999. When it was put to
him by Ms Kapa (for the Applicants) that according to the
individual Applicants they only knew of a meeting on 18 August
at which they were told to leave the Respondent’s premises,
Charles said he could not remember. When it was further put to
him that Pieterse had told the Court about the meeting of 18
August and not 16 August, again he said he could not remember
whether any meeting was held on 18 August.
[80] Tee, in his evidence-in-Chief, only referred to the meeting of 16
August and said nothing about July. When he was asked whether
he knew anything about a July meeting, he then said in fact he
knew of about five meetings that were held. However, on further
cross-examination, he said the five meetings were related to the
April retrenchments. When it was put to him that in terms of
paragraph 5.4 of the Applicants’ Statement of Case there was a
meeting held on 18 August, then he said he remembered that
there was indeed, a meeting held on 18 August. In my view, this
was clearly an afterthought. In almost every respect Tee was
hesitant about what he was saying. He kept on saying “I do not
remember”, “I am not sure”, “I think”, etc. He was, therefore,
not a reliable witness.
[81] The Applicants denied that any meeting with the Respondent’s
management was held during July 1999. Absent any admissible
proof to the contrary on the part of the Respondent, in this
regard, I accept that, indeed, no such meeting took place.
[82] As indicated earlier in this Judgment, it was common cause that
the individual Applicants were dismissed on 18 August 1999. Yet
the letters of their retrenchments were dated 19 August 1999,
literally meaning that the letters were issued one day after their
retrenchments. The wording used in the letters did not purport
to refer to an ex-post facto event, but rather to advise the
recipient of his retrenchment as of the date of the letter, which
was 19 August 1999, which was factually incorrect.
[83] I therefore tend to agree with the individual Applicants’ version
that on 18 August they were called to a meeting where their
names were called out as selected retrenchees and then were
ordered to leave the Respondent’s premises forthwith.
[84] There does not, however, appear to be any substance in the
argument that the “LIFO plus Skills” principle was applied in this
retrenchment exercise. Mthembu’s contention that he was
retrenched ahead of his junior (by length of service) Motsepe,
this was appropriately respondeded to by Pieterse who said that
although Mthembu and Motsepe were both guillotine operators,
Motsepe had further skills as cropper operator and press
operator, which Mthembu did not have. That was the reason
Motsepe’s retention was preferred by the Respondent.
Thereafter, the issue of LIFO plus Skills was not further pursued
by the Applicants. For this reason, I must accept that this
principle was properly and fairly applied, which was a reasonable
and fair selection criterion in the circumstances (section 189(7)).
[85] Further, according to Mthembu, when they attended the meeting
of 18 August, Pieterse informed the workers that the 28 hours-
per-week short time had resulted in underproduction and that he
(Pieterse), did not, however intend to intensify the short time
scheme any further. Mthembu said Pieterse had then asked the
workers to come up with suggestions of what they thought
should be done. The workers had then told Pieterse that they
had no suggestions on whether to increase or further reduce the
28 hours-per-week working time. This would have been a form of
consultation on the part of the Respondent, but for the fact that
the Respondent did not, in my view, appear to be prepared to
discuss anything except the 2 options he put on the table for the
workers to choose from. Such attitude showed lack of bona fides
on the part of the Respondent in its professed willingness to
consult with the Applicants.
[86] However, this aspect, although procedural in nature and form, it
impacts rather more on the question of whether or not there was
a need to retrench, in the first place, which involves the
substantive fairness aspect of the dismissals. I have already
found that the retrenchment of the individual Applicants was
substantively fair.
[87] There are, however, other important procedural aspects which do
not appear to have been properly addressed by the Respondent.
For instance, there was evidence that the individual Applicants
were paid for the notice and severance pckages, but it remained
unknown what formula was used to calculate those payments.
Clearly, the Respondent undertook the calculation exercise
unilaterally. This was in violation of section 189(2)(c) and (3)(f)
of the Act.
[88] The Respondent, having failed to comply with the provisions of
the abovementioned subsections of section 189, the individual
Applicants were thereby denied their right in terms of section
189(5), that is, to make representations, if any, in response to
the matters dealt with in the provisions aforesaid.
[89] Be that as it may, the Court takes into account that none of the
individual Applicants have complained that their notice and
severance payments were not properly calculated or that such
payments were inadequate. There was, therefore, no prejudice,
in this regard, suffered by the individual Applicants.
[90] It is my finding, therefore, that the dismissal of the individual
Applicants was procedurally unfair. Having found so, in the light
of the facts of this case, I do not believe that the individual
Applicants are entitled to any compensation.
[91] Mthembu testified that at the time of his dismissal he was a
member of the Union, but not paying any subscriptions. There
was no evidence that any of the other individual Applicants were
paid-up members of the Union, as at the time of their dismissal.
As a result, no subscription deductions were being made by the
Respondent from the wages of Mthembu and probably the other
individual Applicants. This was apparently the reason why the
Union was not contacted by the Respondent for the “meeting” of
18 August. The Union was only alerted by the individual
Applicants after they had been retrenched.
[92] Indeed, at the conciliation meeting the Union was not
represented. The certificate of outcome reflects only the
individual Applicants as Applicants. In other words, there was no
dispute which was conciliated between the Union and the
Respondent. The Union is not cited in the present case as
appearing on behalf of the individual Applicants, but in its own
right. In my view, therefore, its dispute with the Respondent
ought to have first been conciliated. Its case is, accordingly, not
properly before the Court. It has been brought prematurely.
Order:
[93] In consequence whereof, I make the following order:
[93.1]The First Applicant’s claim is dismissed with costs.
[93.2]The dismissal of the individual Applicants was substantively fair but
procedurally unfair.
[93.3]There is no order for compensation.
[93.4]There is no order as to costs.
________________
NDLOVU AJ
Date of Judgment : 15 May 2003
Appearances:
For the Applicants : 1)Mr D Cartwright (Union Official)
2) Ms N N Kapa (Union Official)
For the Respondent : Mr W Q Jonker
c/o Jonker Smith and Bergh Inc.