Sneller Verbatim/HVR
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JS1399/01
2003-
In the matter between
SIPHO GWEBU Applicant
and
DIMENSION DATA Respondent
__________________________________________________________
J U D G M E N T
___________________________________________________________
LANDMAN J : Mr Sipho Israel Gwebu was employed by
Dimension Data on 1 October 1999 as an assistant technician.
He worked in a division called the Advanced Infrastructure
Division. This division was part of a larger unit known as the
Collectivity Service.
Mr Gwebu was retrenched on 30 November 2001. He
seeks an order reinstating him in his employment with effect
from the date of his dismissal.
On 24 September 2001, Advanced Infrastructure, to
which I shall refer as AI, informed its staff that it was
contemplating retrenching its personnel.
Management convened a meeting with SAEWA(a union).
The parties met on 8 October in order to discuss the proposed
retrenchment.
On 12 October, Ms Tracy Arendse, the HR Manager,
convened a meeting of AI's non-union staff. The purpose of
this meeting was to inform them of the statutory information
regarding the impending retrenchments.
She also conducted individual interviews and handed the
letter regarding the proposed retrenchment to Mr Gwebu. Mr
Gwebu is not a member of a union.
The letter handed to Mr Gwebu informs him about
1. the reasons for the restructuring and rationalisation of the
business;
2. that his position might become redundant;
3. the alternatives that AI had considered to avoid retrenchment;
4. the areas in Dimension Data which could be affected by the
restructuring;
5. the proposed selection criteria;
6. an invitation to make representations and to take part in the
process of seeking consensus on statutory issues;
7. the proposed date of retrenchment; and
8. other matters.
The non-union staff elected Mr Gwebu to represent them
during the consultations with the company. They also agreed
that Mr Gwebu would attend the consultations which were held
between the company and the union. This would be in lieu of
separate consultations between the company and non-union
members.
Mr Gwebu attended the management/union meetings on
15, 17, 23, 29 and 30 October. On 30 October consultations
came to an end.
Mr Gwebu was given a letter dated 30 October informing
him of his retrenchment. He received this letter on 31
October.
Mr Gwebu complains about his dismissal. He says that
he has been unfairly dismissed and his specific complaints that
appears from his statement of case, the pre-trial minute and
his evidence, includes the following:
(1) LIFO was not applied in a proper manner.
(2) His position did not become redundant.
(3) There was no need for Dimension Data to retrench its staff.
(4) The selection criteria used by Dimension Data was unfair.
(5) Someone else should have been selected in his place namely
Samuel Ngumela and Morné Marais.
(6) The managing director said that there would be no
retrenchments in the AI division.
(7) Dimension Data discriminated on racial grounds in affecting
the retrenchments.
(8) He had skills, e.g. mine safety training, which would have
distinguished his position.
I took turn to consider these aspects bearing in mind that
the onus of proving that the dismissal was fair lies upon the
employer, in this case Dimension Data.
(a) It appears that Mr Gwebu was unaware that AI, in which he
worked, fell under the larger unit, Collectivity Services. This
mislead him into thinking that the AI division would not
experience retrenchments. However, Ms Arendse personally
informed him that he could be retrenched.
(b) Mr Gwebu is of the opinion that his position was not made
redundant. He points out that he did work on the mines for
Dimension Data and that this work is still done from time to
time. Mr Stenekamp, the director operations of Dimension
Data, explained that AI's work was based on fixed long-term
contracts, (SLA) and various ad hoc contracts. The
retrenchment affected the ad hoc contracts as the long-term
clients preferred stable teams to operate in their business.
They preferred AI personnel with whom they were familiar.
The work done on the mines was done in terms of various ad
hoc contracts and the retrenchments were to be made from
this group. Moreover, AI lost the contract which it had on the
mines.
(c) Mr Gwebu did not have other skills. He was an assistant
technician. He assisted as a team leader but he had not
been appointed as a team leader. His mine safety training
was required for work on the mines. It was offered in the
course of half a day.
(d) Mr Gwebu had the advantage of sitting in on the
consultations between management and the union. The
selection criteria were not disputed, rather the application of
the criteria was in issue. This was discussed on many
occasions. No agreement was arrived at. The result was that
Dimension Data was entitled to use a criteria which were fair
and this would include LIFO with the retrenching of skills. This
criteria is a long established criteria that is regarded as fair.
(e) Samuel, who was held up as a worker with lesser service than
Mr Gwebu, had other skills. Notably those in relation to
casinos. Mr Gwebu did not have these skills. Marais had
special skills. He was able to do electrical and Data cabling.
Mr Gwebu's skills were restricted to Data cabling.
(f) Mr Gwebo did not raise the issue of racial discrimination in his
statement of case. Nevertheless there is no evidence that this
was a consideration taking into account by Dimension Data in
making its selection of retrenchees.
I have considered other aspects in addition to those
mentioned above. For instance, I have given attention to the
question whether the retrenchments could have been avoided
by restricting bonuses which were payable to staff members
in AI. But I am satisfied that the retrenchment of Mr Gwebu
was fair in the sense contemplated by section 189 of the
Labour Relations Act, Act 66 of 1995.
In reality, of course, retrenchments are not fair from the
point of view from the employee. In this case, Mr Gwebo was
a good worker. He was reliable.He was a person who was
prepared to go the second mile. But retrenchment is not based
on the personal attributes of employees, it is also not based
on any fault.
In the result the application is dismissed.
Mr Ramsay, who appeared on behalf of Dimension Data,
did not seek an order for costs.
SIGNED AND DATED AT BRAAMFONTEIN ON 27 MAY
2003
__________________
A A LANDMAN
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
FOR APPLICANT: MR S GWEBU
FOR RESPONDENT: MR RAMSAY