IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO.
JS1010/2001
In the matter between:
MADINGOANE OLIVER & 4 OTHERS
Applicants
and
THE FIBROUS PLANT
Respondent
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JUDGMENT
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NDLOVU AJ
[1] In terms of their statement of case, the Applicants claimed that
they were unfairly dismissed by the Respondent, their erstwhile
employer. The dismissal aforesad was allegedly based on the
Respondent’s operational requirements. The Applicants asked
the Court for an order reinstating them retrospectively in the
employ of the Respondent.
[2] In or about December 1999 a company known as BPB Gypsum
(Pty) Ltd closed down its business at its Pretoria branch, leaving
only its Brakpan branch operating. In terms of a collective
agreement concluded between the management and
CEPPWAWU, the collective bargaining agent representing the
company’s affected employees, two options were put on the
table for these employees to select from. The first option was a
total retrenchment package and the second option was what the
Applicants’ papers described as “a business empowerment
opportunity” offered by the company In respect of the latter
option each individual affected employee could participate in the
management of a new factory which would be opened and
located on the premises of the Brakpan branch of the BPB
Gypsum. This new factory was to be called “The Fibrous Plant
CC” (the Respondent herein).
[3] The Respondent was involved in the business of manufacturing
cornices, which were ornamental mouldings for roof ceilings. It
supplied only one customer, namely BPB Gypsum (Pty) Ltd.,
Brakpan.
[4] The evidence of the Respondent was adduced from Moses
Mametse Moeketsi and Ben Sello Keagile. For the Applicants
only Josephine Hlongwane (the Fifth Applicant) testified.
[5] It was common cause that the Respondent commenced its
business on or about 10 January 2000. All five Applicants
started work at the inception of the business. The Fourth and
Fifth Applicants were among the retrenched employees from BPB
Gypsum (Pty) Ltd. Pretoria.
[6] It was also common cause that Moeketsi was the Union’s agent
and representative during its negotiations with BPB Gypsum,
Pretoria,which negotiations culminated in the collective
agreement referred to above being concluded.
[7] It turned out subsequently that Moeketsi took over the
Respondent as its sole member. None of the former employees
of BPB Gypsum Pretoria took part in the management of the
Respondent, in terms of what was envisaged as an option
alternative to their retrenchment from BPB Gypsum Pretoria.
According to the Applicants (the Fourth and Fifth in particular)
they were sidelined by Moeketsi whom they alleged betrayed
them by taking over the business himself when he had been
mandated only to negotiate a settlement on their behalf and for
himself.
[8] On the other hand, Moeketsi’s version was that he was offered
the business by the management only after the affected
employees (including the Fourth and Fifth Applicants) had failed
to come forward and avail themselves to take up the
management of the Respondent. He had accepted the offer and
thus became the sole member of the Respondent. In terms of
the Applicants’ statement of case, the dispute about the alleged
Moeketsi’s betrayal of the Fourth and Fifth Applicants and others,
was referred to the CCMA for conciliation under case number
GA109495. The conciliation meeting in this regard was held on
1 August 2001. When the dispute remained unresolved it was
referred for arbitration, which was still pending.
[9] The conciliation meeting in respect of the present case was held
on 3 August 2001, only two days after the first conciliation
meeting in respect of the alleged business empowerment
dispute. The dismissal of the Applicants was effective on 30 June
2001. It follows, accordingly, that both disputes were referred to
the CCMA after the dismissal of the Applicants. It appears to be
the case further that although the alleged business
empowerment dispute did not relate to dismissals per sé, it was,
nevertheless prompted or triggered by them.
[10] Although Moeketsi held himeslf out as the employer of the
Applicants and that he dismissed them as alleged in the
Applicants’ statement of case, Hlongwane, the only witness for
the Applicants, persisted in her evidence that as far as she was
concerned she was part of the management of the Respondent
and that she was never employed by Moeketsi. She regarded
herself as part of the management and co-employer of the First,
Second and Third Applicants. She rejected that Moeketsi was
part of the management. According to her, he had nothing to do
with the Respondent’s management.
[11] Hlongwane testified that there were six of them from the defunct
BPB Gypsum Pretoria’s factory who had opted for the
empowerment opportunity in the Respondent. She and the
Fourth Applicant were two of the six members of the
Respondent’s management. Moeketsi was not part of the group.
She told the Court that even after she was advised that Moeketsi
was in fact the sole owner of the business, she still did not regard
him as such and that it was herself and her five colleagues who
owned the business.
[12] Hlongwane further told the Court that the arbitration in respect of
the alleged empowerment dispute had already started. It was
not clear from her evidence at what stage the arbitration hearing
was, as at the time of this trial.
[13] It would seem to me that the evidence which Hlongwane handed
before the Court was evidence only relevant in respect of her
business empowerment dispute which is pending before the
CCMA. I fail to conceive how and why the Fourth and Fifth
Applicants referred two different and mutually irreconcilable
disputes, one for arbitration before the CCMA and another for
adjudication before this Court, both disputes emanating from the
same set of facts. To my mind, by referring the business
empowerment dispute to the CCMA, the Fourth and Fifth
Applicants thereby made their choice. They made an election to
pursue the dispute on the basis that they were not employees of
the Respondent but they were part of its management. That
being so, it seems to me, they disqualified themselves from
referring another dispute, based on the same facts, claiming to
have been employees of the Respondent and that, for that
reason, the Respondent dismissed them. They could not have it
both ways. As I have indicated already, Hlongwane’s evidence
simply confirmed her choice of dispute, that is, that she was the
owner of the Respondent and not its employee. Her evidence
was therefore not relevant to sustain the Applicants’ case in the
present matter before the Court.
[14] No further evidence was tendered on behalf of the Applicants’
case. As for the First, Second and Third Applicants, it seems to
me that their case was premised on a different footing to that of
the Fourth and Fifth Applicants. They (that is, First, Second and
Third Applicants) were not part of the employment complement
which was retrenched from BPB Gypsum Pretoria. They were
therefore not among the six employees who allegedly opted for
the so-calledbusiness empowerment opportunity from the
Respondent. They were said to have been “picked from the
gate” when they were employed by the Respondent when the
Respondent commenced its business activity on 10 January 2000.
Their status as employees of the Respondent was therefore not in
dispute.
[15] That being the case and in the light of the nature of Hlongwane’s
evidence, as described above, it was expected that evidence
would be led on behalf of the First, Second and Third Applicants,
relevant to their particular situation. It was submitted by Mr
Khoza (for the Applicants) that he had found it not necessary to
call evidence on behalf of these Applicants because of what he
claimed was a contradiction between the evidence of Moeketsi
and Keagile. He submitted that Moeketsi had testified about
having attended a certain consultation meeting at 09h00,
whereas Keagile had stated that Moeketsi attended that meeting
at 11h00. Of course, this was not a material contradiction, if
anything.
[16] In a dismissal dispute the onus is on the employee to prove the
fact of dismissal (Section 192(1)). Once the employee has done
so, the onus shifts to the employer to prove that the dismissal
was fair (Section 192(2)). In either instance, proof must be
established beyond a balance of probabilities.
[17] It follows that in terms of Section 192(1) the Applicant must
prove that, firstly, he/she was an employee of the respondent
and, secondly, that he/she was dismissed by the respondent. It
would seem to me that the first leg of this requirement was not
satisfied insofar as the case for the Fourth and Fifth Applicants
was concerned. No acceptable evidence was tendered before
the Court that they were the employees of the Respondent.
Therefore, no employer-employee relationship existed between
them, on the one hand, and the Respondent, on the other. The
evidence of Hlongwane only helped to confirm their standpoint (if
Hlongwane’s evidence is to be accepted to cover the Fourth
Applicant’s case as well) that they were not the Respondent’s
employees.
[18] In the circumstances, the Respondent had the duty to prove the
fairness of the dismissal only in respect of the First, Second and
Third Applicants.
[19] According to Moeketsi, when the business started in January
2000 there was a backlog of outstanding orders and another
special order from Goldrift City Casino, which the Respondent
had to attend to urgently. This necessitated the employment of
more staff. By the end of May 2000 the Respondent had
employed about 30 employees.
[20] Moeketsi further told the Court that during the first six months of
the business all employees were engaged on a casual basis.
Each individual employee’s engagement was reconsidered on a
month-to-month basis. He said the reason for this was because
the Respondent had no contract with any customer during that
period and therefore did not want to commit itself. During that
time the Respondent was still negotiating a contract with BPB
Gypsum, which was eventually concluded by the end of June
2000. In terms of the contract the Respondent was to supply
both the Brakpan and Germiston branches of BPB Gypsum.
[21] After the contract aforesaid was concluded, individual contracts
were then in turn concluded with the respective employees on 1
July 2000, who, therefore, all became permanent employees of
the Respondent. For that reason and for the purpose of the LIFO
principle, all employees were deemed to have assumed
employment with the Respondent as from 1 July 2000.
[22] Once the Respondent finished the outstanding backlog and the
special order from Goldrift City Casino the business workload
decreased. The Respondent then faced stiff competition with
other business entities dealing in the same commodity. Some
of its competitiors used cheaper material, for example,
polystyrene, instead of more expensive plaster, which was used
by the Respondent, thus cheaper prices by its competitors.
[23] The Respondent introduced alternative methods which it felt
might assist in avoiding retrenchment of staff. The normal
production target of 35 pieces per day per person was reduced to
30 and subsequently to 25 pieces per day per person. It was not
worthwhile producing more when the supply demand thereof had
considerably decreased. When this idea did not work, the “short
time” measure was then introduced. Moeketsi subitted that
every time the employees were consulted before a particular
measure was taken.
[24] On 7 June 2001 Moeketsi called a staff meeting at which he
addressed the employees, including the Applicants, about the
continuing crisis of the Respondent’s business. Keagile, who was
the Respondent’s supervisor, was also present at the meeting.
The employees held a caucus meeting at which they elected four
employees from their midst to constitute a committee which
would represent them at all consultation meetings with the
Respondent’s management.
[25] On the same day (that is, 7 June 2001) Moeketsi requested the
employees to submit proposals through their committee as to
what further alternative measures could be implemented to avoid
the retrenchment. He was due to meet with the committee
during the afternoon of the same day at which the committee
would advise him of the employee’s proposals.
[26] According to Moeketsi he met with the committee on the
afternoon of 7 June 2001. However, the committee advised him
that they had been mandated by the affected employees to tell
him that the employees had no proposals to make and that they
left the matter in his (Moeketsi’s) hands. However, he said he
continued to encourage them to come forward with proposals.
[27] When nothing was forthcoming from the employee’s committee
or the employees themselves, Moeketsi, on behalf of the
Respondent, issued a notice on 19 June 2001 which read as
follows:
[27.1] “Further to our meeting and discussions on 7/06/2001,
where it was indicated that due to a slow-down in the
industry that there will be a possibility of retrenchments
taking place.
[27.2] You were further requested to discuss any alternatives
and options with me. To date no alternatives have been
presented, despite the fact that a reduced working week
to four (4) days as per discussion has been in effect since
the beginning of May 2001.
[27.3] The Fibrous Plant has no alternative but to retrench
people during the week of 25/06/01 so as to ensure the
continuation of the business.
[27.4] A separate meeting will be held to confirm which contract
workers will be retrenched, with a second meeting to be
held with the remaining contracts to discuss the
restructured position”.
[28] On 27 June 2001 Moeketsi called all the affected employees
individually (including the five Applicants) and handed them
letters of retrenchment. The retrenchment was effective on 30
June 2001.
[29] Moeketsi contended that the Applicants were dismissed for a fair
reason and that a fair procedure was followed in their dismissal.
[30] The evidence of Keagile corroborated that of Moeketsi in most
material respects. A few contradictions in their evidence did not
detract from the Court’s finding that, viewed in its entirety, the
evidence tendered on behalf of the Respondent reflected the
probable truth of the matter.
[31] In the light of there being no acceptable evidence to gainsay the
Respondent’s version, I am accordingly, of the view that the
Respondent discharged its onus of proving that the dismissal of
the Applicants was both substantively and procedurally fair.
[32] In the result, the Court makes the following order:
[32.1] The application is dismissed.
[32.2] There is no order as to costs.
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S K NDLOVU, AJ
Appearances:
For the Applicants : Mr W Khoza (Union official)
For the Respondent : Adv W Hutshinson
Instructed by : Fluxman Rabinowitz-Raphaely
Weiner
Rosebank, Johannesburg
Date of Judgment : 19 June 2003