IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JS864/02
Heard on: 20030904
Delivered on: 20030904
In the matter between
B MCKONIE Applicant
and
MINEWORKERS DEVELOPMENT AGENCY Respondent
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J U D G M E N T
__________________________________________________________
PILLAY J :
1. In this disputed retrenchment the applicant was employed initially by
Etaleni Central Buying Agency (Etaleni). A forensic audit undertaken and
completed on or about 26 October 2001 of Etaleni confirmed that there
was wide spread financial and administrative mismanagement. The board
of the respondent, the Mineworkers Development Agency (MDA) and the
sole shareholder of Etaleni resolved inter alia to transfer all the latter's
assets and liabilities to the MDA, write of its debt and that Etaleni would
cease to trade.
2. In January 2002 the principle funders of the MDA, namely the Department
of International Development (Southern Africa) (DFID) a British funding
agency, undertook a review of the MDA and found inter alia that the MDA
was unlikely to realise its objectives. A change of strategy was required
and various other proposals were made in that regard. The funding by
DFID was also to terminate by March 2004.
3. The staff of the MDA was reduced from about 70 to about 15 currently.
This reduction occurred over a period of two years. The new strategic
focus of the MDA was to play a facilitating role rather than to be a
deliverer of services to its clients or users. Against this background there
was no serious challenge by the applicant to the substantive rationale for
the need to retrench.
4. Her case is based on the following:
There was no proper consultation.
There were no selection criteria such as last in, first out (LIFO)
or first in first out (FIFO) followed.
She was the only person retrenched.
She was promised a job and position with MDA in 2001 by the
then CEO, Kate Phillip.
The MDA did not consider the past service that she had
rendered.
It had employed people after her retrenchment.
Her qualifications were not considered.
The alternatives she proposed to retrenchment were rejected.
5. As to whether there was a promise of employment in 2001, it is quite clear
from the communications between the parties and in particular from Miss
Kate Phillip, that the promise in so far as it existed, was not to transfer or
retrench the applicant when Etaleni closed down. That promise was
fulfilled as she was retained by the MDA for almost a year after the closure
of Etaleni.
6. Even on her own version the promise to be retained in MDA's employment
does not and could not possibly have implied that she had lifetime
employment with the MDA. The life span of the MDA itself is dependent
on donor funding and she could not reasonably have inferred that there
will be such employment for her.
7. The applicant denied any knowledge of the restructuring and reasons for
the decision to close down Etaleni. Her statement of claim and other
communications proved otherwise. Several emails to her confirmed that
there was a need to restructure as a result of the losses sustained by
Etaleni. It was also not disputed that Etaleni had become insolvent by
2001.
8. That she was the only person retrenched at the time is not surprising. She
was the only person employed as a bookkeeper by Etaleni. Furthermore,
on her own version she was not doing any work as from July 2001. This
admission made in the pretrial conference is born out by various
communications which appear in bundle A and the applicant's pleading.
9. She was not able to refute the evidence of Mr Mphaka for the MDA that
when he arrived at the MDA in March 2002 he had found that she was not
performing any functions. As far as the consultations are concerned it is
manifest from the communications that the applicant was aware that her
position was redundant as she was not performing any functions July
2001. This is confirmed in an Email by her of 22 November 2001,
document A16.
10.There were several discussions with her which formally commenced on
27 March 2002 that led to her eventual retrenchment in June 2002.
During that period she was given an opportunity to make proposals to
avoid the retrenchment. The proposals she made were rejected for
reasons set out in document A73(C). This is a record kept by the
applicant of the MDA's responses to her proposals. She has not
advanced any evidence in this court or counter offered any further
proposals to the MDA. I cannot, therefore, conclude that the MDA's
rejection of the proposals alternative to retrenchment were unreasonable.
11.During the consultation phase applicant was also offered alternative
positions. There were three of them, one of which meant relocating to a
place about a thousand kilometres out of Johannesburg. However, the
other two positions which the applicant did not mention in her evidence in
chief, but which was drawn out in the crossexamination, were positions
within Johannesburg although they involved some travelling away from the
Johannesburg offices. These were the positions of trainer and sales
representative.
12.In the circumstances, I cannot find any basis on which the applicant could
seriously suggest that the respondent did not take every reasonable step
to avoid her retrenchment.
13.The MDA did advertise for new posts this year. There is no evidence from
the applicant that she applied for any of those posts. In fact, the evidence
from Mr Mphaka is that he had not seen an application from her.
14. The applicant is currently employed. She was paid severance pay at the
rate of two weeks per year of service which is above the statutory
minimum. She was also paid a further ex gratia amount of R5 000,00.
Although the MDA required her to sign an acknowledgement of the latter
payment as acceptance of a voluntary severance package, it did not insist
on her doing so when she refused. She nevertheless received the amount
of R5 000,00.
15.It appears to me that the MDA went out of its way to ameliorate the
hardships occasioned by the retrenchment of the applicant. It must be
remembered that it is itself a publicly funded entity and is accountable for
its expenditure and performance to its funders.
16.In the circumstances, I find that that the applicant's claim must be
dismissed.
17.However, there is a question of costs including those incurred in previous
appearances in this court. I agree with the witness Norton for the MDA
that the applicant's case was wholly frivolous and vexatious. Her claim in
this court that she believed in the organisation and was concerned for its
welfare rings hollow having regard to the way in which she has pursued
this claim and the circumstances in which she has done so.
18.I have no hesitation, therefore, in awarding costs against her, including the
costs reserved on 6 February 2003 and 8 and 9 May 2003.
19.The order I make therefore is the following:
The claim is dismissed with costs, including the costs of 6 February
2003 and 8 and 9 May 2003.
Pillay D, J
14 October 2003
Appearing for Applicant: PERSONALLY
Appearing for Respondent: CHEADLE THOMPSON AND HAYSOM
oOo