IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO.
JS474/2002
In the matter between:
LISA JOY CROWHURST
Applicant
and
ABSA INVESTMENT MANAGEMENT
SERVICES (PTY) LIMITED (“AIMS”)
Respondent
_______________________________________________________________________
_______
JUDGEMENT
_______________________________________________________________________
_______
NDLOVU AJ
[1] The Applicant was employed by the Respondent on 1 May 2000
in the position of Consultant : Marketing and Promotions. On 4
June 2001 she received a letter from the Respondent advising
her, mainly, that her position had become redundant. Her
services with the Respondent were terminated with effect from
30 June 2001. At the time of the termination aforesaid her
remuneration was R210 600,00 per annum.
[2] The Respondent (sometimes known as “AIMS”) was a subsidiary
company under the Absa Group of Companies (“Absa Group”).
The human resources functions of the Respondent were
undertaken by Absa Group. The headquarters of Absa Group
was at the Absa Towers in Johannesburg, whereas the offices of
the Respondent were situated at Woodmead, Bryanston,
Johannesburg.
[3] The Applicant contended in her pleadings that she was dismissed
by the Respondent and that such dismissal was both substantively and
procedurally unfair. However, in due course, the substantive fairness
of the dismissal was no longer placed in dispute, leaving only the
procedural fairness aspect in issue.
[4] The Respondent denied that the Applicant was dismissed. It
submitted that the termination of her services with the
Respondent was by mutual agreement between the parties.
Alternatively, it was submitted when the Respondent engaged
the Applicant in consultation she “amputated” the process and
opted for termination of her services which the Respondent
consented to. What she did therefore amounted to resignation.
[5] The Applicant testified that on 29 May 2001 after having knocked
off duty and whilst on her way home she received a phone call
from her line manager Marius Opperman. He told her about a
rumour that she was going to be retrenched since her position
had become redundant. It was in the evening at about 17h30.
This message distressed her to the extent that she had a
sleepless night. On the following morning (30 May 2001) she
was still distressed and she then decided to phone Opperman
and advise him that she would not be able to come to work. She
explained to him about her distressed condition. He advised her
to see a doctor and obtain a medical certificate to produce at
work, as that was the normal practice.
[6] She had then consulted a doctor who indeed noted her
distressed condition. The doctor put her on sedatives. He
booked her off sick till 4 June 2001.
[7] On the morning of 1 June 2001 Opperman phoned her again to
inform her that there was an e-mail that had come through
advising of an announcement to be made at work on that day.
He suggested to her to report work in order to get what the
announcement was about. Indeed, she called at the office. At
the entrance she met one of the Respondent’s directors,
Lawrence Johnson, whom she asked if it was necessary for her to
attend the briefing or presentation. Johnson said it was not
necessary and that she could go and he would explain about it to
her at some later stage. However, she decided to stay and
attend the presentation. It turned out later that, according to
the e-mail, she was one of the invitees to the meeting after all.
[8] The slide presentation was done by another director of the company, Mr Mel
Harris. It lasted about 40 minutes. The presentation was about the
resturcturing of the Respondent’s operational systems and the resultant
retrenchment of certain staff members, or the proposal towards such
restructuring and the possibility of such retrenchment. As shall appear in due
course there was a sidpust betwen the parties whether the presentation ws
placed before the employees as a proposal or a fait accompli.
[9] Once the presentation was concluded, Harris told those
employees who were affected, including the Applicant, that they
would thereafter be called one by one for personal interviews
with Johnson and the Respondent’s human resources
representative, Ms Gayle.
[10] Applicant further testified that when she came to the office she
was shown a letter which was pre-dated about a month earlier
(“the original retrenchment notice”). She could not remember
what the precise date was on the letter, but it was dated about
the end of April 2001. Johnson and Gayle informed her that the
Respondent’s company was reorganising and that they knew it
was a painful process for everyone concerned. They then
outlined to her two options which they said were open to her,
namely:
10.1 To stay at work the entire month of June and receive a two
weeks’ severance package; or
10.2 To leave work immediately, in which case the conditions
contained in the original retrenchment notice would then apply.
More detail related to these 2 options will be referred to later.
[12] The Applicant then asked if she could not be offered any other
alternative employment within the company. They told her that
since Absa was down-sizing the bank there was no likelihood that
there would be any alternative position to be offered to her in
the future. At that moment there was certainly nothing, they
said. The Applicant felt being in complete loss and desperation.
She had taken loans from Absa which she was repaying. These
included a study loan and car loan. She had been granted these
loans at preferential bank rates, as a staff member. They told
her that she would lose these special rates which at that time
was about 11% and be converted to public rates.
[12] The Applicant further told the Court that at their introduction to
each other, Gayle had told her that she was there to protect the
Applicant’s interest as well as that of Absa.
[13] The Applicant then requested to take home the original
retrenchment notice in order for her to discuss the contents of
the document together with the implications thereof with her
mother. However, this request was refused. She was told that
she would be called in on the following Monday (4 June 2001) to
sign the “necessary documents”. From there the Applicant
proceeded to her office to clear it up and pack away her personal
belongings.
[14] On 4 June 2001 she called at the workplace and when she went
to her office she found one of the Respondent’s managers, Greg
Mason, using her computer. She then went through her files in
the office. Johnson came up to her and told her that the
document that she was to sign was not ready and that she would
better leave. She then left the office.
[15] On 6 June 2001 she was called in to sign the “necessary
documents”. When she came there she discovered that the
document dated 4 June 2001 which she was asked to sign no
longer reflected the same amount of money as the one which
appeared in the original retrenchment notice. The amount was
then much less. She said she pointed this out. However, she
eventually signed the document (“the retrenchment notice”)
under protest, reserving her right in that regard.
[16] She further told the Sourt that when she had gone through the
files in her office her intention was to obtain copies of documents
that she had produced herself on aspects, such as planning and
creativity. She needed these copies to help enhance her
chances in obtaining new employment.
[17] Since she had not been able to retrieve copies of documents
from her files she had then phoned Opperman and requested
him to obtain same for her. He undertook to do so. However,
in the meantime she received a letter from the Respondent’s
legal adviser, a Mr Jordaan. The letter was to the effect that it
had come to the attention of the Respondent that the Applicant
was harassing the Respondent’s staff and that she was trying to
steal files from the office. The letter further alleged that she had
erased the hard drive of the Respondent’s computer which she
had been using. She was further informed that, as a result, she
was no more welcome on the Respondent’s premises. She then
stopped going to the Respondent’s workplace.
[18] She further testified that in or about October 2001 it was brought
to her attention by an employment agency that there were
numerous vacancies available within the Absa Group, which
included the position of Consultant : Marketing Sponsorships.
The job description for this position in turn included:
* Liaising with advertising agencies;
* Organising events;
* Incentives - for example when a broker managed to sell X
amount of Absa products, the broker concerned would be offered a
free overseas trip;
* Assisting with marketing, for example writing brochures;
* Accreditation, for example ensuring that brokers were competent
to sell the products they were selling;
* Internal communications.
[19] According to the Applicant this particular advertised post was
basically similar to the one of Consultant : Marketing and
Promotions which the Applicant had occupied. The Respondent
had however not informed her about this available vacancy
before she was retrenched, or even after.
[20] Shortly thereafter Opperman downloaded from the computer
what was described in the Respondent’s terminology as the
“green screens” which Opperman handed to the Applicant. The
“green screens” consisted of information stored in Absa’s
computer archives related to vacancies with the Absa Group.
Opperman had given her a printout of the “green screens”.
[21] The retrenchment notice, which the Applicant claimed she signed under
protest was attached to her Statement of Claim, marked Annexure “A”. Next
to her signature she wrote the words “accepted without prejudice on this day
5 June 2001 at AIMS’ Head Office, Woodmead”. At this stage the Applicant
corrected herself in that the original retrenchment notice was in fact pre-
dated about the end of May (and not end of April) 2001. In terms of the
retrenchment notice (Annexure “A”) the total amount payable to the Applicant
before tax was R47 170,94. According to the Applicant the amount in the
original retrenchment notice was far more than that. Further, according to
her recollection, the items in the retrenchment notice which were listed under
sub headings “Medical Aid”, “Pension Fund”, “Group Life”, “Housing Loan (if
applicable)” and “Credit Facilities” were all not there in the original
retrenchment notice.
[22] The Applicant further told the Court that she understood the first
paragraph of the retrenchment notice as being a notification to
her of the termination of her employment with the Respondent
with effect from 30 June 2001. This paragraph read as follows:
“With reference to our discussion of 01/06/2001 we wish to confirm that your
present position with AIMS has become redundant. We therefore regret to
advise you that you (sic) services with Absa Group will be
terminated with effect from 30 June 2001 (last day of
service)”.
[23] The Applicant refuted the Respondent’s claim that she was not
dismissed. She said if it was not so she would have gladly
stayed and proceeded with her work.
[24] The pertinent slide in the presentation of 1 June 2001 included
[24] The pertinent slide in the presentation of 1 June 2001 included
the slide with the heading “AS A CONSEQUENCE” which
conveyed information reading as follows:
“The following new posts will be established:-
* Business Unit Heads x5
* Admin Controllers x5
* Bulk Processing Controller x1
* Bulk Processing Administrator x1
The following posts are no longer required:-
* Senior Manager - Admin
* Manager - Admin
* Manager - Special Projects
* Head - Marketing and Strategic Research
* Head - Sales and Business Development
* Regional Managers - Sales
* Consultant - Marketing and Promotions”
[25] At the conclusion of the slide presentation the Applicant had
concluded that she was being retrenched. She reached this
conclusion even before the personal interview that took place
thereafter, as well as before she was handed the retrenchment
notice on 6 June 2001.
[26] The Applicant further told the Court that prior to the presentation
on 1 June 2001 she had not been approached in any manner
whatsoever by the Respondent whereby she was informed or
given the slightest hint of the Respondent’s operational problems
or requirements and it contemplated embarking on a
restructuring or reorganisation process. The first time she
officially heard of this was at the slide presentation.
[27] The majority of the Respondent’s staff were members of the trade union, the
South African Society for Banking Officials (SASBO). However, the Applicant
was not a SASBO member nor was she a member of any other trade union.
She told the Court that nobody had been appointed to represent her in any
discussion or consultation with the Respondent’s management. She further
told the Court that when the slide labelled “AS A CONSEQUENCE” referred to
above, was presented to them no suggestions or proposals were invited from
them thereon. The contents of the slide were simply presented to them as a
fait accompli, she said.
[28] Opperman was also retrenched by the Respondent three months
after the Applicant’s departure. He had occupied the position of
“Head; Sales and Business Development” which also appeared in
the list of the group that was declared redundant, in terms of the
slide presentation.
[29] Although another slide labelled “PROCESS” indicated an item described as
“consult with employees filling redundant positions,” this did not mean
anything to the Applicant because according to her it was all a done deal. In
terms of that prejudice slide there was also an item described as “Establish
consultation process with SASBO” of which the Applicant was of course
not a member.
[30] She testified that her work experience included the following:
* Brand Marketing at Fedlife. Her functions there included
aspects such as Events, Promotions, Sponsorships and
Internal Communications.
* One year Brand Marketing at AIMS (the Respondent).
* During her one year stint at AIMS she obtained a 6 month
Marketing Diploma from Damelin College.
[31] She further told the Court that Respondent paid her the amount
as shown in the retrenchment notice, namely R47 170,94.
Among other things, she used this money to pay off her credit
card debit balance and loans which she had had with the
Respondent. She did not seek reinstatement with the
Respondent but only an award for compensation.
[32] Under cross-examination the Applicant admitted that she went to
attend the presentation on 1 June 2001 already having her mind
set that she was going to be retrenched. She denied however
the suggestion that she did not understand what happened at
the presentation because she had already told herself that she
had been retrenched.
[33] The Applicant was then referred to the Respondent’s policy document which
included what was termed “Reassignment Guidelines”, the extract whereof
was included in the Court bundle. The Applicant acknowledged that in the
ordinary course of her duties she would have had access to the information
contained in this policy document. Hoever she had never seen the document
before.
[34] The reassignment process was the Respondent’s temporary
relief measure accorded to a retrenched employee whereby the
employee could be accommodated for up to three months within
the Respondent’s employ. During this period the employee
would be engaged in some temporary work whilst efforts to find
the employee alternative employment were being made. As
stated, she testified that she had not been aware of the
reassignment procedure. She only heard it for the first time
after her retrenchment. She said if she had known about it she
would have certainly opted for it because for her to have worked
a further three months would have meant a lot. She denied the
suggestion that the reassignment procedure was explained to
her as one of the options that she was free to take and that she
had however opted to leave immediately because that option
carried a higher cash incentive.
[35] It was further put to her that during the personal meeting held
with her shortly after the slide presentation it was highlighted to
her that within the three months reassignment period another
jobe could be offered to her and that if she refused it then she
would forfeit all the retrenchment benefits reflected on the
retrenchment notice. She denied that this was ever explained
to her. It was further put to her that she refused the
reassignment procedure because she did not want to risk the
forfeiting of the retrenchment benefits aforesaid. She also denied
this.
[36] It was suggested to her that it was never the intention of the
Respondent or Absa Group to get rid of her. All other employees
who were retrenched together with her were given the
reassignment option and that she could not have been treated
differently. It was further pointed out to her that since she
joined Absa she had received skills training at Absa’s expense
and that Absa had thereby invested in her. As a result, the
Respondent or Absa would have no reason to simply dismiss her.
It was put to her that the presentation on 1 June 2001 was only
the beginning of the consultation process which she had
unfortunately short-circuited by deciding to terminate her
services with the Respondent immediately. She emphatically
denied this suggestion.
[36]
(a) It was suggested to the Applicant that the slide presentation did
not necessarily reflect the final structure which the Respondent
would eventually adopt. In other words, it was only a provisional
structure which was submitted as a proposal. The Applicant
denied this proposition and reiterated that it was all a done deal.
[37] It was further indicated to the Applicant that the original
retrenchment notice had reflected a higher amount because that
amount had been calculated on the assumption that the
Applicant, like all other affected employees, would finish three
months later, that is, with effect from 30 September 2001. The
Applicant replied that she was not aware of that position and
pointed out that when she and her attorney subsequently
queried the difference in the amounts no explanation was given
to them.
[38] The Applicant had since been employed by Barclays Bank,
Sandton (Illovo Branch) and held the position of Communications
Manager. She was also engaged as a freelance writer of
advertisements for Oliver McIntyre, an advertising agency.
[39] She further told the Court that she did not question the
Respondent’s reason for deciding to streamline or restructure its
operational requirements. She could therefore not challenge
any evidence on the contemplated advantages that would be
brought about by the proposed restructuring.
[40] Under re-examination the Applicant acknowledged the provisions
of the Reassignment Guidelines (referred to above) which dealt
with the item “Consultation Process” which provided as follows:
“CONSULTATION PROCESS
Staff and Trade Union where affected
Any reassignment exercise will involve a
consultation process with staff in the affected
functions as well as consultation with and
involvement of the recognised union on the
nature and extent of such event, where the
union’s members are affected.
Particulars and reasons
During this consultation process full particulars
of and reasons for the exercise must be
provided.
Providing of information 5 days in advance
This information is to be provided in writing at
least 5 (five) working days prior to the
consultation taking place (as per PROPOSED
LETTER TO UNION in topic DOCUMENTATION).
Purpose
* The purpose of consultation is to inform
staff regarding reassignment.
* After the initial consultation, individual
meetings are held to discuss the
effective and fair reassignment of staff by
determining individual skills, ability,
preference, transferability, aspirations
and development needs in addition to
information as detailed in the CV”.
[41] In particular, the Applicant denied that she was given any written
notification of the intended consultation process, five days before
the process began, as required in terms of the Reassignment
Guidelines.
[42] The Applicant’s witness, Marius Daniel Opperman, told the Court
that at the time of the Applicant’s dismissal he was also
employed by the Respondent and held the position of Head :
Sales and Business Development. He confirmed the evidence
of the Applicant to the extent that it related to him. He told the
Court that he also attended the slide presentation of 1 June
2001. According to him the presentation allowed for no
flexibility. It was simply clear cut of what would take place.
[43] Opperman further told the court that in his case he was given
two options to select from, namely:
43.1 An offer of being re-employed as Business Unit Head,
which he regarded as below his current status;
43.2 An offer to undertake the three months reassignment process.
[44] He was also served with a retrenchment notice similar to the one
given to the Applicant. He had initially opted for the
Reassignment Process. During this period he was required to
apply for the position referred to in option 1. However within the
three month period he made his position clear to management
that he would not be applying for the position in option 1 and
that he would seek alternative employment within the Absa
Group. He testified that in his observation the Applicant was
treated differently.
[45] At the conclusion of Opperman’s evidence the Applicant closed
her case.
[46] Prior to the Applicant’s case being concluded it was recorded on
her behalf that she would no longer challenge the substantive
fairness of the alleged retrenchment but only the procedural
fairness aspect thereof.
[47] The only witness for the Respondent was Ms Gayle Jennifer Piek
(referred to herein as “Gayle”). She told the court that she was
in the employ of the Respondent and held the position of People
Management and Accounts Executive, which was equivalent to
that of Human Resources Executive.
[48] She testified that once a need was identified for the restructuring
and reorganisation of the Respondent’s operational
requirements, consultative meetings were held with the affected
employees and, where applicable, their union representatives.
The possibility of restructuring had first been mooted within the
Respondent’s management on 17 May 2001. The intention of
management was to communicate the Respondent’s proposals
to the affected employees and to obtain their inputs thereon.
She testified that the process of submitting inputs was then
finalised. Thereupon the Respondent notified the affected staff
of a meeting scheduled for 1 June 2001. The witness had
personally arranged this date with the recognised trade union
SASBO. She had held a meeting with SASBO on the previous
day (31 May 2001) at which she had proposed for the meeting.
[49] The consultation was divided into two sessions, the morning one
(a slide presentation) and the afternoon one (a one-on-one
interview with individual affected employees). She further said
it was envisaged by the Respondent that the Applicant would be
affected if the proposals as contained in the slide presentation
were finally accepted. It was communicated to the staff at the
slide presentation that even though the Respondent had
performed well in its three years of existence as at that time,
there was still room for improvement.
[50] The witness then referred to the copy of the slide presentation filed at page
23 of the Court bundle. That was the slide with the heading “AS A
CONSEQUENCE” and which listed a number of positions (including that of
Applicant) under the introductory sentence: “The following posts are no
longer required”. He told the Court that by that sentence was only meant
to convey that those positions would no longer be retained if the proposals
were finally accepted and implemented. She submitted that despite the
language used in the presentation, the matter was not a fait accompli. She
said she had no idea why the language appearing in the slide was used. She
further told the Court that Absa’s fundamental intention was to retain skills
within the Group.
[51] The witness further testified that in the event of a position being
declared redundant there were three possibilities and options
available to the affected employee, namely:
51.1 Applying for a new position within the Respondent of Absa
Group;
51.2 Opting for the reassignment procedure; or
51.3 Opting for retrenchment.
[52] The afternoon interviews were conducted by herself and Johnson.
The purpose of this second meeting was to ensure that the
proposals of the Respondent were clearly conveyed to each
affected employee in a private consultation and the Respondent
sought to ensure that it had covered all the necessary aspects of
the process.
[53] She told the court that during their interview with the Applicant
Johnson had asked the applicant if there was anything for her to
ask related to the slide presentation. The Applicant had said she
had no questions. Instead she only wanted to know what the
implications were for her. At that stage Johnson had requested
the witness to further explain to the Applicant what the next
process from then would be. She said she then explained to
the Applicant that she was entitled to apply for any of the
proposed new positions. The Applicant had thereupon indicated
that her skills were of a specialist nature and that she could
therefore see no way how she could be accommodated in the
proposed new structure. She said she had acknowledged that
the Applicant was correct in her view of the matter on that point.
She had further explained to the Applicant that her position had
been affected because of the need to centralise specialist
functions (or support functions).
[54] The witness further stated that since she had known that the
Applicant’s position was of a specialist nature she had then
thought it better to contact her counterpart in “Group :
Marketing”, Morne du Plessis from whom she enquired about
staff positions within that division at the time. Du Plessis had
indicated to her that “Group : Marketing” was also undergoing
restructuring at that point in time and that he could therefore
proffer no assistance to the Applicant. The witness said she
explained all this to the Applicant. She further testified that she
explained the reassignment process to her. She further pointed
out that during the consultation the Applicant was carrying a
copy of section 189 of the Labour Relations Act (“the Act”).
[55] After the explanation the Applicant had stated that she was not
interested in any new position within Absa and she asked if her
services could be terminated with immediate effect.
[56] The witness further told the court that during her consultation
with the Applicant (as was the case with all other affected
employees) she was having in her possession a proforma
computer printout called “TS02 Retrenchment Package Report”
which contained the basic information and details applicable to
all affected employees. In particular the money figures
reflected on this document were calculated on the basis or
assumption that each affected employee would opt for the
reassignment procedure, which meant that the employee
concerned would finish off on 30 September 2001. An amount
representing one month’s notice with effect from 1 June 2001
would also be added to the total sum shown in the document.
She acknowledged however that the date on that document
(which in the case of the Applicant was the original retrenchment
notice) was indeed earlier than 1 June 2001 although not long
before then. She said she had explained to the Applicant that
the contents of the document would only be applicable if the
reassignment procedure in her case was put in place. However,
the Applicant opted against the reassignment procedure. The
Applicant persisted that since there were no other posts in
Marketing, she would not be prepared to be redeployed to a
different environment.
[57] The witness admitted that the Applicant requested for a copy of
the original retrenchment notice. She said she had then
explained to her that it would not be appropriate to give her a
copy because there would probably be some changes in the
calculations, occasioned by pension implications. She promised
the Applicant a properly calculated copy by the following Monday
(4 June 2001).
[58] According to Gayle it was then agreed between the Applicant
and Johnson, the latter representing the Respondent, that her
(the Applicant’s) services would be terminated with effect from
30 June 2001. The Applicant had then inquired whether it would
be necessary for her to come to work during her notice period.
She indicated that she would prefer not to come. Johnson told
her that there was no need for her to come. The witness further
told the Court that the rationale for the restructuring was not
debated with the Applicant because she had cut short her
consultation process and wanted to know what implications were
there for her.
[59] Concerning the retrenchment notice the witness told the Court
that the notice was prepared for the Applicant at her own
request, as she preferred to receive the retrenchment package
rather than undergo the reassignment process. The notice was
prepared by the Human Resources Administration Department at
the witness’s instruction. It consisted of the standard wording
for all retrenchment notices. The Court inquired from the
witness that if the document contained notification of
retrenchment by mutual agreement, how different would a
document then be from this one which contained a notification of
compulsory retrenchment. The witness replied that the two
notifications would be the same in terms of their content. The
witness stated that if the retrenchment notice had reflected the
true position that the retrenchment was a voluntary one it would
have had unfavourable tax implications for the Applicant. She
said she had considered this aspect but had not explained it to
the Applicant at the time. However, with hindsight, she realised
she should have explained all this to the Applicant.
[60] Gayle confirmed that there was no other meeting held with the
Applicant before and after 1 June 2001. However, she had left
the Applicant with the message that in the event she had
anything more that she wanted to know about she was free to
contact her.
[61] The witness denied that she presented the Applicant with the
two options which the Applicant testified about. In particular,
she said the option of two weeks’ severance package could not
have been possible in terms of the Absa policy. She said she
only heard about the two weeks’ severance package from the
Applicant and she (the Applicant) said she had read about it in
section 189 of the Act.
[62] Gayle implored the Court to believe her testimony that the
retrenchment notice was contained in a proforma with
standardised wording. Only the specific personal information as
pertaining to individual employees would differ, which would be
filled in the proforma.
[63] It was pointed out to the witness that both the Applicant and
Opperman had told the Court that they had never seen the
reassignment policy document and that this evidence was never
challenged during their cross examination by the Respondent’s
Counsel. The witness responded that she had also not produced
this document to the Applicant but she had only explained the
contents thereof to her.
[64] The witness was then referred to the item “Consultation Process”
contained in the Reassignment Guidelines, particularly where reference was
made to a consultation with trade unions. She confirmed that there was no
suggestion that the Applicant was a member of SASBO. When she was asked
as to how the provision of the policy document was complied with which
required what the Applicant, be informed in writing, not less than 5 (five)
working days prior to the consultation taking place, of the information
contained in the policy document, the witness replied that at that stage of the
process was not reached because the Applicant wanted her services to be
terminated immediately. It was indicated to her that in terms of the
document the 5 (five) days’ written notification was supposed to have
preceded any consultation process. Later in her evidence the witness stated
that she did not believe that the 5 (five) day period envisaged in the
“consultation process” directive meant that the reassignment guidelines had
to precede her explanation to the Applicant about the reassignment process.
[65] It was further pointed out to Gayle that when the Respondent
received the Applicant’s conciliation referral papers on 12 June
2001 alleging that the Respondent had dismissed her unfairly,
the Respondent had not raised the point (at the conciliation
meeting) of the fact that the Applicant had not been dismissed
and that there was an apparent misunderstanding on her part.
Further, that at that stage the Respondent could still have
explained the option of the reassignment procedure to the
Applicant.
[66] The witness reiterated that the Applicant’s retrenchment was a
consensual or voluntary one, despite the fact that she signed the
retrenchment notice under protest and having indicated that she
was accepting the benefits thereunder without prejudice.
[67] The witness further admitted that there was nothing discussed
on 1 June 2001 which effected any change in the Respondent’s
proposed new structure, as originally “proposed” in the
presentation of 1 June 2001.
[68] To the specific question whether the Respondent disclosed in
writing to the Applicant the issues referred to in Section 189(3)
of the Act as required, the witness replied ’No’. The witness
further testified that the provisions of Section 189(35) and (6)
could not be complied with in respect of the Applicant’s case
because the Applicant had not responded on the Applicant’s
proposals put on the table.
[69] The witness acknowledged that a private and personal letter,
having some bearing on this matter, addressed to the Applicant by her
attorneys, care of the Respondent’s address, had been opened by the
Respondent without the Applicant’s authority. The witness said she
had no explanation to give why Absa had opened the Applicant’s
private letter.
[70] That basically summed up the Respondent’s case.
[71] The issue before the Court was -
- whether the Applicant was dismissed by the Respondent;
and if so,
- whether such dismissal was procedurally unfair.
As stated, the substantive fairness of the alleged dismissal was
no longer placed in issue.
[72] The onus in dismissal disputes is governed by section 192 of the
Act which provides as follows:
“(1) In any proceedings concerning any dismissal, the
employee must establish the existence of
the dismissal;
(2) If the existence of the dismissal is established, the
employer must prove that the dismissal is
fair”.
[73] The Respondent denied that the Applicant was dismissed and
contended that the termination of her services was as a result of
mutual agreement between herself and the Respondent. The
Respondent further pleaded, in the alternative, that in the event
of the Court finding that there was indeed a dismissal, then that
such dismissal was based on the Respondent’s operational
requirements and was therefore substantively fair. It further
pleaded that in such event the dismissal was also effected in
accordance with a fair procedure in that, particularly, it complied
with the provisions of section 189 of the Act. For the reason
already stated it was no longer necessary for the Court to deal
with the substantive fairness or otherwise of the alleged
dismissal, but only its procedural fairness aspect.
[74] In particular, section 189(1), (2) and (3) provides as follows:
“(1) When an employer contemplates dismissing one or more
employees for reasons based on the
employer’s operational requirements, the
employer must consult -
(a) any person whom the employer
is required to consult in terms
of a collective agreement;
(b) if there is no collective agreement that requires Consultantion -
(i) a workplace forum, if the
employees likely to be
affected by the proposed
dismissals are employed
in a workplace in respect
of which there is a
workplace forum; and
(ii) any registered trade union whose members are likely to be affected
by the proposed dismissals;
(c) if there is no workplace forum
in the workplace in which the
employees likely to be affected
by the proposed dismissals are
employed, any registered trade
union whose members are
likely to be affected by the
proposed dismissals; or
(d) if there is no such trade union, the employees likely to be affected by
the proposed dismissals or their representatives nominated for that
purpose.
(2) The employer and the other
consulting parties must in the
consultation envisaged by
subsections (1) and (3) engage in a
meaningful joint consensus-seeking
process and attempt to reach
consensus on-
(a) appropriate measures -
(i) to
avoid the
dismissals;
(ii)
to
minimise
the number
of
dismissals;
(iii) to change the timing of
the dismissals; and
(iv) to mitigate the adverse effects of the dismissals;
(b) the method for selecting the
employees to be dismissed; and
(c) the severance pay for dismissed employees.
(3) The employer must issue a written notice
inviting the other consulting party to
consult with it and disclose in writing all
relevant information, including, but not
limited to -
(a) the reasons for the proposed
dismissals;
(b) the alternatives that the employer considered before proposing the
dismissals, and the reasons for rejecting each of those alternatives;
(c) the number of employees likely to be affected and the job categories
in which they are employed;
(d) the proposed method for selecting which employees to dismiss;
(e) the time when, or the period during which, the dismissals are likely
to take effect;
(f) the severance pay proposed;
(g) any assistance that the employer
proposes to offer to the employees
likely to be dismissed;
(h) the possibility of the future re-employment of the employees who are
dismissed;
(i) the number of employees employed by the employer; and
(j) the number of employees that the employer has dismissed for
reasons based on its operational requirements in the preceding 12
months”.
[75] The wording of subsection (1) of section 189 is unambiguous.
The consultation process envisaged in the subsection must be
commenced immediately upon the employer contemplating a
dismissal of one or more of its employees. In other words, the
consultation process must be commenced before a final decision
on the dismissal is made, not after. Each case is determined on
its own merits. The subsection is further clear whom the
employer must consult in terms of this section. The list of these
persons was obviously intended to be in order of priority. The
first person to be consulted was the one whom the employer was
first person to be consulted was the one whom the employer was
required to consult in terms of a collective agreement.
However, if there was no such collective agreement which
specifically dealt with the consultation process envisaged under
this section then the workplace forum must be consulted if there
was such a forum in the workplace, as well as any registered
trade union whose members were likely to be affected by the
proposed dismissal. In the event that there was no such
workplace forum or registered trade union of which an affected
employee was a member, then the employer must consult with
the affected employee directly.
[76] It was common cause that the first time the Applicant was ever informed
about the Respondent’s intended restructuring was on 1 June 2001 when she
attended the slide presentation. What was explained to her at the
presentation was clearly set out in copies of the presentation, which formed
part of the Court bundle. What was important was the manner in which the
Applicant and others were informed about their respective positions. It was
this manner which determined whether, in terms of the slide presentation,
what they were told about were mere proposals whereby the affected
employees were being invited to engage in debate and furnish input, if any
thereon, or whether what the Applicant and others were told about were final
decisions on the issues concerned, which had already been taken unilaterally
by the Respondent’s management. The slide presentation (filed at page 23
of the Court Bundle) tends to answer this question. The top category of posts
are described as those which “will be established” whilst the bottom
category referred to posts that “are no longer required”. The Applicant’s
post belonged to the latter category. This was plain and simple. Her
position “(was) no longer required” by the Respondent. I was mystified by
suggestions that, despite the clear and unambiguous language of the slide
presentation, a contrary meaning should be attached to the wording of this
presentation, a contrary meaning should be attached to the wording of this
particular document. Indeed, the Respondent’s witness, Gayle,
acknowledged that the so-called proposed restructuring was subsequently
implemented precisely in terms of the slide presentation without any changes.
This confirmed the real situation that what was presented to the Applicant and
others at the meeting of 1 June 2001 was a fait accompli and in no way
resembled the proposals.
[77] During the afternoon of the same day (1 June 2001) the
Applicant was again interviewed in the office by the
Respondent’s representatives, Gayle and Johnson. There was
some factual controversy as to the content of the discussion at
that stage. However, what was not in dispute was the wording
of the retrenchment notice, a copy of a similarly-worded one
whereof was handed to the Applicant on 6 June 2001. Pertinent
and most crucial of the retrenchment notice was its first
paragraph the contents of which I propose to recall:
“With reference to our discussion of 01/06/2001 we wish to confirm that your
present position with AIMS has become redundant. We therefore regret to
advise you that you (sic) services with Absa Group will be
terminated with effect from 30 June 2001 (last day of
service)”.
[78] It was noted that the retrenchment notice referred only to “our discussion
of 01/06/2001". Indeed, according to Gayle no other meeting was held with
the Applicant except for the two meetings of 1 June 2001. In other words, it
was in the Respondent’s own admission that the so-called consultation
process was begun and finalised on the same day, 1 June 2001. The
retrenchment notice was a mere confirmation of what had already taken place
on 1 June 2001. The Respondent’s explanation for this was that such
situation was brought about by the Applicant who had chosen to short-circuit
the consultation process. However, it would seem that the other employees
who held the positions listed together with the Applicant at page 23 of the
Court bundle were in exactly the same position as the Applicant. Their
positions were also “no longer required”. It was also Gayle’s evidence that
retrenchment notices similar to the Applicant’s retrenchment notice were us
in respect of all the affected employees when they were individually
in respect of all the affected employees when they were individually
interviewed during the afternoon of 1 June 2001. It was therefore hard to
comprehend on what basis it was alleged that the Applicant short-circuited
the consultation process, if the same allegation was made in respect of the
other affected employees.
[79] The wording of the retrenchment notice, particularly the first paragraph
thereof, read in conjunction with the heading of the notice which read:
“Termination of Employment” required, to my mind, no further
interpretation or amplification. The Respondent was merely confirming to the
Applicant that, as informed on 1 June 2001, her services were being
terminated with effect from 30 June 2001. This was no proposal and there
was no condition about it. It was a final confirmation of her retrenchment.
There was also not the slightest indication in any part of the retrenchment
notice that her retrenchment was by mutual agreement between herself and
the Respondent. It was noted that in an attempt to explain that omission
Gayle stated that the fact of the retrenchment being a mutually agreed one
was purposely omitted for tax implication reasons, which were considered
would be favourable to the Applicant if that fact was omitted. Gayle
acknowledged however that she had not explained to the Applicant those
alleged tax implications at the time of her interview. She said she felt, with
hindsight, that she ought to have explained this to the Applicant. To the
Court this explanation was not convincing. In the first place it was obviously
not the first time for Gayle to have handled a matter of this nature. I could
therefore not imagine that the Applicant was the first retrenched or dismissed
employee that Gayle had to handle, who would require the completion of a
retrenchment notice form.
[80] Besides section 189, the Respondent appeared to have failed to
comply even with its own consultation process guidelines. Gayle
insisted that she explained to the Applicant about the
reassignment process but the Applicant persistently denied that
this was explained to her during either the two meetings of 1
June 2001 or at any other time. She only saw the document for
the first time later, apparently after this case was instituted.
Her witness Opperman said the same. Their evidence was not
Her witness Opperman said the same. Their evidence was not
challenged by the Respondent during cross-examination. The
Court therefore accepted that the Applicant was never informed
about the reassignment process as claimed by Gayle.
[81] In any event, the controversy about whether or not the Applicant was
informed about the reassignment process during her interview could easily
have been avoided had the Respondent complied with its own consultation
process guidelines. In terms of this Guideline (filed at page 52 of the Court
bundle) the information on the reassignment process was supposed to have
been “provided in writing (to the Applicant) at least 5 (five) working
days prior to the consultation taking place”. As I have indicated, the
Respondent did not comply with this guideline which should have served to it
as an instruction. Gayle furnished no satisfactory reason why this did not
happen. Her explanation was only that she did not believe that she had to
give a 5 (five) day notification before she could explain to the Applicant about
the reassignment process. If she was correct then I would not understand to
whom the consultation process guideline in question was intended to apply, if
not the Respondent.
[82] It further seemed to me that if the Respondent’s version were
true, or probably true, that it did not dismiss the Applicant and
that the Applicant had simply short-circuited the consultation
process, and further that the reassignment option was still
available to her, Gayle, who attended the conciliation process,
would not have stopped to point this out, as she apparently did.
The Applicant was adamant that had she been informed about
the reassignment procedure as an option available to her she
would have certainly taken it as it would have meant at least a
further three months remunerative engagement for her.
[83] The Court is inclined to accept that the Applicant successfully
discharged her onus in proving that she was dismissed by the
Respondent and that such dismissal took effect on 30 June 2001.
In the light of what has been said above, the Court is also
satisfied that the Applicant’s dismissal was not effected in
accordance with a fair procedure. She should, therefore, be
entitled to compensation.
[84] In determining the appropriate compensation which would be
just and equitable in all the circumstances of this case, I have
taken into account a variety of factors. I have considered the
fact that the Applicant had worked for the Respondent for only 1
(one) year. During that period she had undergone and passed
important career courses which were offered to her at the
expense of the Respondent. As a result of her retrenchment the
Respondent had itself sustained a loss in its investment in her.
The latter factor is however not entirely mitigatory. It is diluted
by the fact that the loss of her services to the Respondent was as
a result of the Respondent’s own making.
[85] On the other hand, I have also considered, among others, that
the Applicant, a decent and professional person who had been
“head-hunted” by the Respondent, was shabbily and unfairly
treated in the manner that the Respondent did to her. It did not
appear from the evidence what it was which motivated the
Respondent to treat one of its senior employees in such a
manner. The Applicant had a study loan and car loan which she
had taken out from the Respondent and whose debts were still
outstanding. The Respondent was aware of these loans, yet it
did not even allow time to the Applicant to repay the debts in
full. The loans had been taken out on a preferential repayment
rate by virtue of the Applicant having been a staff member of the
Respondent. As a result of the retrenchment the loans’
repayment rate had to be converted from preferential to public
rate immediately effective on the date of her dismissal. Her
medical aid facility was also to be stopped. All this came upon
her as a bomb without any notice whatsoever.
[86] In the circumstances, I consider that the appropriate
compensation would be an amount equivalent to 6 months’
salary, calculated at the rate of the Applicant’s remuneration as
at the time of her dismissal. It was common cause that her last
salary rate was R210 600,00 per annum.
[87] In the result, I make the following Order:
1 The Applicant was dismissed by the Respondent, which
dismissal was effective on 30 June 2001.
2 The Applicant’s dismissal aforesaid was procedurally
unfair.
3 The Respondent is to pay compensation to the Applicant on the
amount equivalent to the Applicant’s 6 month salary, calculated at the
rate of her remuneration as at the date of her dismissal, namely:
R210 600,00 (per annum) ÷ 2 = R105 300,00
4 The compensation aforesaid is to be paid within 60 (sixty)
days from the date of this Order.
5 There is no order as to costs.
______________
NDLOVU, AJ
Appearances:
For the Applicant : Mr D Vetten
Instructed by : Leppan Beech Attorneys
Sandton
Johannesburg
For the Respondent : Mr W LaGrange
Instructed by : Hofmeyr Herdstein & Gihwala Inc.
Sandton
Johannesburg
Date of Judgment : 28 November 2003