REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
CASE NO: C 930/2000
In the matter between:
MICHAEL JOHN KUKARD & 5 OTHERS Applicants
and
MOLAPO TECHNOLOGY (PTY) LTD Respondent
JUDGMENT
NTSEBEZA, AJ:
INTRODUCTION
1] This case has had a long and chequered history, and were I to go
into its ups and downs, this judgment would be far longer than it
really should be – and would be delayed in coming out further than
it has in fact been delayed, in some ways due to the fact that I have
unfortunately been hamstrung by circumstances it is not necessary
to traverse herein, but which were beyond my ordinary control.
2] I eventually heard argument in this matter on the 25 th February
2005. It was in circumstances wherein the Applicants had filed their
Heads of Argument that very morning. These Heads of Argument
had been due in June 2004! Even as the Heads were handed in that
morning, - and I had not read them – there was a suggestion that
the Applicants could be best served if the matter were argued at a
later date, a suggestion that was happily abandoned.
3] Whilst the major focus of this judgment does not aim to be around
why the Heads of Argument by the Applicant were almost nine (9)
months late in delivery – and in violation of a mutually arranged
schedule that dictated such Heads to have been submitted in June
2004, failure for which was never explained despite a plethora of
letters from the Respondents seeking an explanation, - the
Applicants’ only explanation, from Mr Taylor, their Counsel can be
summarised as follows:-
He could not afford the time to attend to drafting and filing
his Heads of Argument;
The reason for that was a purely financial one as he could not
bear the case financially when once it became an extended
trial; and
He had been carrying the case out of his pocket.
4] Since the Applicants’ conduct in the trial is something that may or
may not impact on, at the very least, the costs order that I will
make, I propose to leave the question of the effect of the ups and
downs in the conduct of the trial, and the implications thereof, on
costs, for later determination in this judgment. I consequently
proceed to deal with the merits.
THE MERITS
5] The Applicants were all employees of the Respondent company.
They were retrenched on or about the 28 th April 2000. That there
was a need to retrench - technically often referred to as dismissal
for operational reasons - is not in dispute between the parties. What
is in dispute, - and it appears it is in fact the only issue for my
determination -, is whether or not the Respondent, in retrenching
the Applicants, complied with the procedural requirements
prescribed by s 189 of the Labour Relations Act No. 6 of 1995 (the
LRA). In making their submissions in this regard, the Applicants
query, in particular, whether the Respondent consulted properly
and/or adequately with them and/or their appointed representatives
on the issues referred to in s 189. Put differently, the question for
my consideration is whether the Respondent has succeeded in
convincing me that the Applicants’ dismissal was for a fair reason,
and that the procedure followed in effecting the dismissals was a
fair one. The Respondent has argued that the answer to both
questions must be answered in its favour. The Applicants resist such
a finding being made. In order for me to decide which of the
contending parties reasonably reflects the correctness of its/their
allegations, I have to turn to the evidence.
6] The Applicants referred the mater of their dismissal to this Court.
Respondent had purchased on the 1 st of April 2000(!), the repair
arm of one of Telkom’s discussions, Invatek, as a going concern.
Since all the Applicants were employees at Invatek, Cape Town, at
the time Respondent purchased Invatek, their contracts of
employment transferred automatically to the Respondent on
purchase. By the 28th of that very month, Respondent had dismissed
a number of employees throughout the country, including the
Applicants, based on its operational requirements. The Applicants
referred the dispute that arose as a consequence of these
dismissals to this Court, the basis being that their dismissals were
substantively and procedurally unfair. It was common cause – and
this is trite – that in the circumstances, the Respondent bears the
onus to prove that the Applicants were dismissed for a fair reason
and in accordance with a fair procedure. Has the Respondent
discharged that onus?
7] Over a number of days, the matter was on trial, and I heard oral
evidence. I also perused the pleadings and a lot of documents that
were submitted by the parties in support of their respective cases. I
am indebted to the parties for the comprehensive way in which they
presented their cases. To be sure, there were complications. There
were interruptions. There were unscheduled applications for
postponements by the Applicants as evidence unfolded. Eventually,
however, the case was argued and I now have to evaluate the
arguments presented.
LEGAL POSITION
A. Substantive fairness
8] Generally, where an employer claims entitlement to terminate the
services of his/her employees on grounds of financial or business
operational reasons – requirements based on the economic,
technological, structural or similar needs, the so-called no fault
termination, - such employer must comply with the requirements
prescribed by the LRA, particularly sections 189, 189A, 197 and
197A. An employee, under the LRA jurisprudential regime, now has
a fundamental right not to be unfairly dismissed by his employer,
even if he thinks he is entitled to do so for operational reasons, if
the dismissal is not substantively and procedurally fair.
[See: Johnson & Johnson (Pty) Ltd v CWIU 1999 ILJ 89 (LAC);
Baloyi v M & P Manufacturing 2001 ILJ 391 (LAC); Kotze v
Rebel Discount Liquor Group (Pty) Ltd [2002] 2 BLLR 138
(LAC).]
9] According to Grogan, 1 the Courts have held that the requirement
that dismissals must be for a fair reason means that an employer
has to show that the retrenchment of employees was aimed at
effecting savings. In other words, the employer must demonstrate
that there was a bona fide rationale for the retrenchment of the
employees. The process of establishing whether or not to retrench
employees must be fair to the affected parties, the employees to be
1 Workplace Law, 7th Edition, Juta, 2003, p 197 ff
retrenched. 2
10]Thus, in determining, in this case, whether the dismissals were
justified, I will have to be satisfied as to whether or not there was,
firstly, a commercial rationale for the decision to dismiss the
Applicants. If I find that there was, in other words, if I find there was
a reasonable basis upon which the decision to entrench was based, I
will have to conclude that the dismissal was substantively fair.
More, however, I have to do. I should also be satisfied that the
manner in which the proposed dismissals were to be effected was a
fair one, not merely a “correct” one. In other words, my task will be
to ensure, in evaluating the evidence, that the Respondents and the
Applicants did not merely go through the motions of consulting over
the various issues listed in s 189(2), but whether the attempts made
were real. That is the crux of the matter.
[See generally, BMD Knitting Mills (Pty) Ltd v SACTWU (2001)
221 ILJ 2264 (LAC).
APPLICANTS’ CASE
11]The case by the Applicants is that the Respondent, fully aware that
the electronics division of Invatek was a loss making bussiness, and
that the telephone line portion of the business was going to be
advertised, nonetheless proceeded to purchase the electronics
division even though they had failed to conduct an in depth due
2 One is not unmindful of De Beers Consolidated Mines Ltd v CCMA 2000 ILJ 1051 (LAC) where
dismissal of supermarket shelf packers for theft of small items was held to be dismissal “rooted in
operational requirements”.
diligence investigation of the business before acquiring it. I do not
know what to make of this submission by the Applicants. I can only
guess that the insinuation is that the basis for the Respondent’s
decision to retrench is not a bona fide one. I say so because what I
have stated above is the sum total of Mr Taylor’s submission on the
subject of whether the dismissals were substantively fair.
12]Not only does he not say that the Respondent’s decision to buy a
loss-making operation without a thorough-going due diligence
exercise was reckless and therefore does not qualify for retrenching
for a fair reason – whether or not that would be a viable proposition
is a separate issue; it is just that he does not make that argument –
but he also, in both his written heads and in argument, did not
address the Respondent’s Heads of Argument that dealt clearly and
separately with whether Applicants can claim to have been
dismissed unfairly substantively. Neither in his Heads nor in Court
has Mr Taylor addressed this aspect. I will return to this aspect later
in this judgment.
13]It may well be that this failure to address whether the Applicants’
dismissal was substantively unfair or not was informed by what Mr
Taylor in argument said to me, namely, that what this case really
turned on are “selection criteria”. Indeed, in his Heads of Argument,
Mr Taylor dealt extensively – and almost exclusively – with what in
fact are grounds for the Applicants’ assertions that their dismissals
were procedurally unfair.
14]In essence, the submission by the Applicants was that the
dismissals were procedurally unfair because, inter alia,
The employer did not consult when it contemplated
dismissing for operational reasons;
The employer failed to engage in a meaningful consultation
process on any of the issues contemplated in s 189;
The employer maintained an inflexible stance on “timing”,
taking an attitude that the tight time frames it set were “non-
negotiable”;
Not only were selection criteria unilaterally determined, and
not in any way communicated to, or debated with the
respective unions, it was unrealistic and fanciful for the
Respondent to contend that the Union (Applicants’
representative) had in fact been given an opportunity over
the weekend to analyse the criteria, and to make meaningful
proposals in relation thereto;
The employer failed to disclose, and to provide the Unions
with information sought by it.
15]Mr Taylor also told me that on a close evaluation of the evidence, I
would be persuaded that some employees were unfairly dismissed.
He particularly told me that in the case of one of the employees,
Lyndon Bredenkamp, for example, the Respondent unlawfully and
unfairly put him in a pool of employees who would be affected by
the decision to retrench some workers.
16]This was so, argued Mr Taylor, despite the fact that claims by the
Respondent that it was restructuring the business because of its
financial predicament, notwithstanding, Bredenkamp’s position
remained unaffected even after the restructuring exercise. There
had therefore been no need for interfering with Bredenkamp’s
position in the Company, to his detriment. He could not, in the
circumstances, be said to have been fairly retrenched, argued Mr
Taylor. In the case of one Nero, who had a bursary, there was no
“saving” that could justify his dismissal. Being a more experienced
worker than the one selected, one Odendaal, Nero should have
been kept since doing so was costing the Company nothing, given
his bursary. In the event, his retrenchment was irrational and could
not be justified. It was unfair, argued Taylor.
THE CASE FOR THE RESPONDENT
17]The Respondent’s point of departure was that in the pre-trial
minute, the general need to retrench had not been placed in issue.
Besides, evidence adduced at the trial dealt in detail with the
circumstances that necessitated the retrenchment process. The
Respondent relied, principally, on the evidence given by Mr Hart
which, it was submitted, was not seriously challenged in cross-
examination nor had it been contradicted by any other evidence. In
view of the fact that Mr Taylor did not come across as seriously
contending that their dismissals were not substantively unfair – to
be sure that was one of the pillars of his case, but it was not
seriously argued – I will not spend much time in analysing the
evidence in support of the contention by the Respondent that there
had been an operational justification, as contemplated in both the
LRA and in decided cases, that necessitated the retrenchment.
18]In short, the Respondent had taken a business decision to buy, as a
going concern, Invatek from Telkom notwithstanding that
historically the division had no history of profit-making, and despite
it being clear that between the date of offer and date of purchase,
Respondent would not have an opportunity to conduct a full
analysis of the business it was buying. Respondent had been fairly
confident that it would be able to turn the business around without
having to resort to laying off employees, who, as I stated earlier,
were transferred with the business since the business was being
bought as a going concern.
19]As often happens in these deals, on actually taking over the
business, Respondent got a rude awakening. Telkom had not
disclosed what the Respondent considered a material condition at
the time of the sale transaction, namely, that Telkom had ceased to
repair SLTS (as Respondent understood that to be the position). This
function, without disclosing this to the Respondent, had been
passed to individual customers. According to Mr Hart, who testified
on behalf of the Respondent, the effect of all of this, was that the
Respondent had to budget for this function. Where the Respondent
had estimated that its losses would be R40m (forty million rand) per
year, with an additional cost of R50m (fifty million rand) to be
provided for in respect of repairs, the loss to Respondent would
actually be R90m (ninety million rand) per year. This, the
Respondent, had not bargained for.
20]The situation demanded drastic action – and drastic measures were
taken. Its financiers being prepared to finance this amount for only
two months, Respondent had to turn around the business in that
period to keep it from bleeding to death. A restructuring and
retrenchment process had to be taken, not only at the Cape Town
branch of the Respondent, but countrywide. There was clearly a
genuine reason – a bona fide economic rationale that compelled
the Respondent to take the preliminary decision to consider the
possible retrenchment, as it was entitled to do. The question I have
to answer by examining the evidence closely is whether the
ultimate decision to retrench, when it came, was genuine and not
merely a sham.
[See: SA Clothing & Textiles Workers Union & Others v
Dicreto – A Division of Trum and Springbok Holdings (1998)
19 ILJ 1451 (LAC).]
21]Before I even consider whether the employer was entitled, in law, to
take the final decision to retrench, I must search for evidence that
shows whether the Respondent, as Mr Taylor submitted, applied
selection criteria that had not been canvassed with the employees
in consultation and whether, in any event, the selection criteria
were correctly applied in relation to the various applicants. Mr
Taylor told me that I would find in the evidence of Peddie and Hart
that different criteria were applied to different levels within the
organisation. However, the big thing with Mr Taylor was that this
was never communicated to, nor debated with, the workers at any
stage. He also told me that the composition of the criteria was
unilaterally determined and not in any way communicated to or
debated with the respective unions.
22]I have enormous problems with Mr Taylor’s approach to the
evidence – and his argument thereanent. In the same breath as he
argued as indicated above, he submitted that it was unrealistic for
the Respondent to contend that the Union had been given an
opportunity over the weekend to analyse the criteria about which
Hart and Peddie had testified. Further, he acknowledged that Kemp
had conceded in cross-examination that the criteria in themselves
were not unfair, but countered that criteria, in any event, being
standard criteria, were objectively fair when viewed objectively.
Without referring me to any part in the record for his submission,
and without elaborating where in the evidence I could find this, and
in relation to which employee was affected thereby, Mr Taylor
submitted that if one examined Peddie’s evidence regarding the
selection criteria, and the application thereof, it was clear that the
criteria “included subjective elements”.
I disagree.
23]A proper analysis of the evidence of Hart and Peddie, the
Respondent’s principal witnesses, whose evidence was unshaken by
Mr Taylor’s sometimes fairly aggressive cross-examination, was that
in view of the predicament the employer found itself in, it
consciously decided to adopt technical qualifications, experience
and skill as selection criteria at operational level. Those workers
who would quickly understand and apply electronics systems and
repair would be preferred at the operational level. At management
level, employees would be selected in accordance with their
experience, seniority, as well as their standard of education and
qualification. Whilst LIFO was a consideration, it was not absolute,
something that case law has in any event now settled.
[See: Naicker v Q Data Consulting (2002) 23 ILJ 730 (LC).]
24]Kemp’s concession that these selection criteria were fair is borne
out by the fact that no Applicant testified that they were otherwise –
which is why I have problems with Mr Taylor’s argument. All that
Kemp queried was that they were unfairly applied, not that they had
never been communicated to them. En passant , I found it
remarkable that Mr Taylor, in his Heads of Argument, as well as in
his address to me, despite his Heads presumably having been a
response to Respondent’s Heads which had been filed a
considerable time before he drafted his, dealt only with two of the
Applicants whom he represented, namely, Nero and Bredenkamp.
He made no submissions with regard to Kemp, Bruiners, Crowe and
Kukard. Whether this omission means he had no submission to
make thereanent I will never know. The upshot is that the argument
by Mr Wesley relevant to these employees is unchallenged. I accept
it as such and I will therefore spend very little time analysing
evidence with respect to them.
25]Mr Wesley dealt in detail with the evidence in support of his
submission that the Applicants had been dismissed for a fair reason.
With regard to Kemp and Bruiners, who had been managers in
quality control, and where restructuring dictated the employment of
one manager, the selection of one Rive who had been a supervisor
of both of them, and had superior skills in quality control, could only
not be challenged, because the evidence of Hart thereanent was
convincing, but also could not be rejected on account only of the
evidence given by Kemp and Bruiners, who clearly testified in a
manner that demonstrated that each of them acted in the self
interest.
26]Bredenkamp, the evidence was clear, was selected because he
wanted to leave but did not seek to appear to have resigned. His
evidence at seeking to evade this conclusion was preposterous, with
him seeking to invoke fanciful conspiracy theories that had no basis
in fact. I reject his version of events totally. I need say nothing
about why Crowe was selected since evidence by Peddie as to why
he was selected was unchallenged.
27]Relevant to Nero, an IT specialist, he was selected for retrenchment
because there was one post and the incumbent, Odendaal, who had
written the software for the regional offices, was chosen. This
competence by Odendaal was never challenged by Nero in cross-
examination. Nero had sought to contest his dismissal on the basis
that the Employer had made some undertaking to pay for his
studies up to 2001 – making his dismissal in 2000 unfair. Even if it
was so – and I express no opinion on whether his version of this
undertaking was persuasive to me that it indeed had been made –
as Mr Wesley correctly submitted, his remedy lies elsewhere. The
existence or otherwise of a contractual right to be paid his salary
cannot in and of itself invalidate the correctness of the Employer’s
decision to select him for retrenchment. Another forum could see to
it that his salary remains paid notwithstanding his dismissal.
[See: Fedlife Assurance Ltd v Wolfaardt 2002 (1) SA 49 (SCA).]
28]Kukard was a relatively harder case. He had long service. However,
notwithstanding his claims to the contrary, for example, that he
could repair more equipment than other employees, his flexibility
ratings were low according to Peddie and Hart principally because
the most important aspect of repairs was technical competence,
and an ability to learn to repair new equipment quickly. These
attributes Kukard unfortunately did not have, and he could thus not
be considered for a business that needed to be saved from the brink
of economic abyss quickly to avoid a financial disaster. I am
therefore satisfied, for all these arguments, that the decision to lay
off the selected employees was substantially fair. The remaining
question is whether the process was also procedurally fair.
PROCEDURAL FAIRNESS
29]The Applicants’ complaint about the process followed appears from
their analysis of the meetings held by the Employer with the
employees. Applicants argue that the Employer failed to engage in
a meaningful consultation process. For example, it was argued,
even though it discovered on 1 April 2000 that it had lost the single
telephone business, it only “dropped the bombshell” on the
employees’ union, CWU, on 6 April 2000. The Union indicated it
could not respond to the presentation. On 7 April 2000, the
Applicants claim, none of the s 189 issues were raised, nor,
according to them, were same discussed at meetings on 12 to 14
April 2000. At this latter meeting, the Union had complained that
the time lines imposed by the Respondent were unacceptable, and
the Union insisted on the Respondent supplying them with
information requested by fax on 14 April 2000, necessitating an
adjournment of the meeting to 17 April 2000.
30]Since the Union needed more time, their attitude was that on 18
April 2000, none of the unions representing the employees could
formulate any strategy without the information requested, hence
the meeting was further adjourned for another week. No
consultation, let alone a meaningful one, had taken place, it was
argued. Consequently, the Employer could not be heard to be
arguing that the employees had failed to come up with alternative
suggestions without mentioning any suggestions of its own. There
was mechanic formalism that attended the Employer’s dealing with
the issue and, so it was argued, there was no evidence placed
before me that demonstrated that the campaign that Hart had
testified about, namely, endeavours by the Employer to reduce
rental costs of premises not required, to cut on employment costs,
and so on, were actually meaningfully engaged in to produce a
result that would have avoided the employees losing their jobs in
the manner in which they did.
31]Mr Taylor argued that the Employer mechanically adhered to time
frames that were predetermined from which it was not prepared to
budge; that it had purchased an organisation it had not conducted
due diligence in relation to, and when that backfired, the disastrous
consequence of its misfortune was visited upon the workers by the
Employer, holding them to inflexible time frames, without the
Employer taking the Union into its confidence about its disastrous
misadventure in purchasing the business.
32]With regard to selection criteria, it was argued, not only did the
evidence of Hart and Peddie indicate that different criteria were
applied to different levels within the organisation, there was no
communication of these criteria to the unions. Insofar as the
Employer’s testimony had been that the employees had been given
a weekend to analyse the criteria, and revert with meaningful
suggestions by way of reaction, Mr Taylor dismissed such evidence
as being fanciful and unrealistic and as evidence of the Employer’s
lamentable ignorance of how unions worked.
33]During argument, I do not recall that Mr Taylor was able to point me
to the section in the evidence for his strong submission that further
evidence of the unfairness of the process was the fact that the
determination of how selection criteria were to be composed had
been unilateral, let alone that even that had not been
communicated to the Employees by the Employer. Nor have I been
able to find whose evidence it is that Mr Taylor was relying on for
that submission. Insofar as it is, if proved to be supported by
evidence, a basis for holding that the process was unfair, Mr Taylor
submitted that on the authority of Fourie and Another v Iskor
2000 11 BLLR 1269 (LC), I should equally find, in this case, that the
employees had been subjected to a procedurally unfair process.
Even with regard to information sought by the Union, the Employer
had failed to both disclose and provide same, so the argument
went.
34]In the view that I have taken of the case and the evidence, I do not
intend to deal with all the submissions by Mr Wesley in any amount
of detail as far as this aspect goes. Nor do I propose to deal point
by point with his oral argument in reply, particularly, relevant to the
submissions and oral argument by Mr Taylor. It would suffice to
state, from the outset, that there was a candid admission by Mr
Wesley that the time frames were tight. The only consideration is
whether the Employer, on the evidence, has been shown to have
been mala fide in the conduct of the consultation process in one or
all of, or even more than, the ways in which Mr Taylor argued the
Employer’s conduct rendered the consultation process procedurally
unfair.
35]I have to say that for the Courts to determine the length of time – or
minimum periods – which are objectively fair for the consultation
process to properly be conducted in is always forever going to be a
huge dilemma, one in relation to which the only binding principle is
the evaluation of whether the process was fair or not. Whether the
process was fair is a question of fact, and not a matter of how many
hours or weeks or months or even years the consultation process
took place. The question is not just whether consultation took
place, whether relevant information was made available by the
Employer to the employees, whether selection criteria were
discussed between Employer and employee, whether employees
had ample time to discuss and react to such criteria as had been
disclosed – if that is so – to them, whether the employees
meaningfully engaged in the process to obtain meaningful result or
whether, as the Employer testified, the employees engaged in all
manner of tactic to frustrate the process of determining whether
and if a proper and fair case existed for the retrenchment process.
36]In the end, deciding the issue of procedural fairness, bearing in
mind all the time, that the requirement of the Act is that a
meaningful consultation process needs to be followed prior to a
dismissal, really depends on whether the evidence points to a bona
fide endeavour by all the parties to resolve the question of whether
employees can or should be laid off, or whether one of the parties
has frustrated the process by refusing to participate. There can be
no general rule for whether this has happened, each case obviously
depending not only on its own facts, but also on the way in which
the evidence of those facts impressed the trier of fact. In a given
case, the tight time frames, in the context of that particular case,
may be way too unreasonably tight as to have amounted to a
formalistic adherence to process, but so devoid of all substance as
to render the process hollow for that very reason. In another case,
the same tight frames, in the context of the facts of the case, may
be found to be reasonable.
37]Even though I have agonised over the process in this case, and
even as I am very sympathetic to Mr Taylor’s passionate
submissions on how the process was heavily loaded against the
employees, I am not persuaded that the Employer, on the evidence
tendered by it, can be held, justifiably, to have followed a process
that can be labelled as having been wholly unfair.
38]I am satisfied that Hart and Peddie’s evidence is unblemished in its
clarity that the Employer, as soon as it contemplated that
retrenchment might be necessary, attempted to engage the
representative unions with the first consultation on 6 April 2000, six
days after the end of March which had signified the discovery of a
financial crisis for the Employer as a result of which urgent steps
became necessary for efforts to be taken to save the company. For
six days, the evidence shows, the Employer engaged consultants to
advise it on what the viable options were to resolve the financial
crisis. When, by 6 April 2000, the reality of the grimness of the
financial position of the company became known, namely, that even
though the company would be saved, jobs might have to be cut
either through voluntary retrenchments or forced removals, the
Employer decided to hold, and indeed held, intensive consultative
meetings on the four days in April over a period of three weeks, with
one scheduled meeting of 7 April 2000, not happening because, on
the evidence, the Union had not held a meeting with its members to
consult with them on the issues of the meeting of 6 April 2000.
39]Evidently, this period was very tight but it is interesting that even
Kemp, one of the affected employees, acknowledged that the
situation demanded urgency of attention. His issue was that the
Employer’s time frames were too tight. He did not, however
venture to suggest what time frame would have been fairer in the
circumstances. That attitude does not, unfortunately, help me.
Further, Kemp conceded, (contrary to what had been the
complaint), that the Employer in fact did provide the union with a
great deal of information during the consultation process. I
therefore have tried with difficulty to find any evidence to justify Mr
Taylor’s suggestion that the employees were not provided with the
necessary information.
40]The evidence also does not support Mr Taylor’s contention that
selection criteria were never discussed with the employees. The
detailed memorandum provided, (on 20 April 2000), to the Union
was a consequence of the deliberations on 18 April 2000,
culminating in a final list of those to be laid off being drawn on 25
April 2000.
41]However, there is something in this process that I need to express
my views on. I accept that there may be different perspectives held
by the Employer, on the one hand, and the employees, on the other,
about the value attached by each of these constituencies to the
significance of the Freedom Day celebrations of 27 April in South
Africa’s post-apartheid era. It is an emotive issue that shows the
yawning gap that exists still between the beneficiaries of the
Apartheid order, mainly whites in general, and their commercial
enterprises, on the other hand, and victims of Apartheid, black
workers in the main, on the other. For the former, 27 April 2000
was probably just another working day wasted as a public holiday.
In this case, for example, it is clear that the Employer thought only
about the mess his company was in, and processes it felt had to be
engaged in that were geared at saving the company from ruin. Not
even Freedom Day celebrations were to stop the Employer from
seeking to force the workers to engage in a process that they felt
could wait. For the workers, the celebrations of Freedom Day were
evidently clearly so close to their hearts that the mere suggestion
that they should have prioritised consultations over celebrations is
anathema to them, almost an insensitive suggestion.
42]Mr Wesley argued that the Employer was quite alive and sensitive
to the importance of these celebrations, but, in his view, the
prioritisation of those celebrations over consultations was
“inappropriate” and the Employer ought not to be blamed for the
consequences of the Union’s choice. For the most part, particularly,
with respect to the absence of explanation from Kemp as to why no
work could be done by the Union in the period from 20 April to 25
April 2000 (the Easter Weekend), and on 26 and 27 April 2000, the
latter day being Freedom Day, Mr Wesley submitted that the reason
given was insignificant. I cannot agree with him that the reason
given is an insignificant one in a transformative post-Apartheid
South Africa.
43]There is, in my view, something precipitous about the way in which,
over that critical period, this Employer conducted itself. The
formalistically correct approach – business like if you want – with
which the Employer dealt with this time in its negotiations process
with the workers was insensitive. It failed to appreciate the passion
with which workers, black workers in particular, hold the advent of
freedom close to their hearts. Insofar as I am called to make a
value judgment by Mr Wesley to the effect that the Union failed the
Applicants – and not the Respondent – in the process that was not
as complete as it could have been, that value judgment must be
premised not only on the evidence, but also on what I perceive to
be the values of present day South African society. I hold that the
values of dignity, freedom and ubuntu, values enshrined in our
Constitution, place an imperative on Employers to be much more
sensitive to what is dear and sacrosanct to their employees. In this
case, a long Easter Weekend culminating in the Freedom Day
celebrations of 27 April 2000, was conducive to the employees’
desire to celebrate a historic event in the history of the land. I do
not consider that it is fair, therefore, to suggest that the choice the
workers made is something that they ought to be blamed for.
44]I do not consider that the Employer should have been as inflexible
on this as it in fact was. An otherwise fair process up to the point
when the long weekend came about was somewhat marred by this
unfortunate attitude by the Employer. It is an attitude, hardnosed it
must be said, that unfortunately, in my view, rendered this process
not as exhaustive as it could have been, had there been some
sensitivity on the part of the Employer. It is an insensitivity that
does not amount to mala fides. It is one, however, that is not a
technical deficiency either. It goes to the heart of what should
weigh with me heavily as to whether a matter of weeks could have
made any difference to the ultimate fate of the Employer.
45]Was it not in the interests of the Employer to have opted for a
flawless consultation process, one that probably would have taken a
few more weeks to complete rather than go ahead on the basis that
if the workers chose to celebrate an Easter Weekend culminating in
Freedom Day celebrations, they had only themselves to blame if
they lost their jobs? I think our Courts, in a constitutional
democracy like ours, would lose their credibility if they were to hold
that a choice like that which was made by the employees in this
context, cannot exonerate them from blame if they get dismissed
for non-participation in the process to that extent.
46]I think that if the Employer had allowed a period of four to six more
weeks of intensive engagements with the workers, holding them to
strict timetables, the process would have been flawlessly
completed. Because that time was not allowed, the process can be
held, and I so hold, to have been unfair to that limited extent. It is a
period in relation to which the Employer must be prepared to pay
compensation to the workers who were dismissed. Because of the
decision I have come to, I am unable to accede to the submission by
Mr Wesley that I should order the Applicants to pay the
Respondent’s costs because the Respondent was brought to Court
without good reason, expending considerable resources in
defending a case it ought never to have had to meet. I disagree.
My reasons have been stated.
47]Before I conclude, I need to remark about the period it has taken for
this judgment to come out. In my view, it is not an uncomplicated
matter. The situation was compounded by my own ill-health which
culminated in a lifestyle-altering surgical operation which I suddenly
had to undergo in the July recess period during which I had meant to
complete re-reading the record and re-visiting the arguments and
my own notes. Insofar, therefore, as justice delayed has been
justice denied, I apologise. These factors are over and above the
fiasco I alluded to at the beginning of this judgment.
CONCLUSION
48]The Applicants have been partially successful, although,
substantially, the Respondent has successfully resisted their case.
In my view, therefore, an appropriate order would be as follows:
48.1 The Applicants’ dismissal was for a fair reason;
48.2 The dismissal of the Applicants was not in
accordance with a fair procedure;
48.3 The Respondent is ordered to pay the dismissed
employees compensation that is the equivalent of
three (3) months remuneration, an amount just
and equitable in the circumstances of this case;
and
48.4 There will be no order as to costs.
__________________________________________
D B NTSEBEZA
Acting Judge of the Labour Court of South Africa
Date of Hearing: 25 FEBRUARY 2005
Date of Judgment: ………………………………….
For the Applicants: MR TAYLOR
Instructed by: MURPHY WALLACE SLABBERT
INC
CAPE TOWN
For the First Respondents: MR WESLEY
Instructed by: BOWMAN GILFILLAN INC
SANDTON