IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN
JOHANNESBURG
CASE NO JS817/02
REPORT
ABLE
DATE 20050503
In the matter between
LINDA YVONNE JOHNSON Applicant
and
ANGLO OPERATIONS LIMITED t/a
BOART LONGYEAR OPERATIONS Respondent
_________________
J U D G M E N T
_______________________________________________________________
_
REVELAS, J :
[1] The applicant in this matter was employed by the respondent as a credit
supervisor in its financial department at its Springs branch. In this department
fourteen individuals were employed. The applicant's services were terminated
with effect from 13 May 2002 by the respondent, following a restructuring
exercise which commenced in April 2002. At the onset of the exercise,
negotiations were commenced with the unionised employees.
[2] This matter concerns the fairness of the applicant's retrenchment, which
the applicant contends was both procedurally and substantively unfair. She was
not a member of a union in the aforesaid context. The applicant was advised at
a meeting held on 11 April 2002, that the respondent needed to retrench three
persons in the finance department. One person would be from the debtor's
department and two persons were to be from the creditor’s department. This
meeting was held with other employees in the finance department as well and
the manager of the financial department Mr Truter and Miss Grobler the
respondent's human resources official, was also present. The reason advanced
IN THE LABOUR COURT OF SOUTH AFRICA
for the retrenchment was that the respondent's Roodepoort branch would
commence operating its own stores and accordingly those stores which had
been used by the respondent at the Springs branch, would be moved to
Roodepoort where their customers would be diverted to. At this stage I make
the following finding: Even though the applicant stated that she had never
processed any payments in respect of the goods stored by the respondent in
Springs of its Roodepoort branch, the financial manager gave sufficient
evidence how the respondent was affected by this change in its operations. I
accept that there was indeed a need to restructure and retrench.
[3] On 22 April 2002, the applicant was (on her version) called in twice
into Mr Truter’s office. On the respondent's version she was called in once, in
the afternoon to the office of Miss Grobler and advised that there had been no
requests for early retirement or voluntarily retrenchment, therefore the
applicant's position had become redundant. She was told that the respondent no
longer had a need for a supervisor to supervise subordinates in its financial
department.
[4] The applicant had been employed by the respondent since 2001. On
April 2002, at the meeting with Miss Grobler, the applicant was given a letter
dated 19 April 2002 which was signed by Miss Grobler. It can be found at
page 5 of the record and reads as follows:
"Dear Miss Johnson,
Restructuring. The following serves to confirm the discussions held on 22
April 2002 between yourself, G Truter and myself:
1. Due to operational requirements the company has to review and
restructure your department.
2. Resulting from this exercise the position you currently held has
become redundant.
3. You can contact your union/staff representative. Management will
set time aside to meet with yourself and your union/staff representative should you
wish to discuss the possible retrenchment.
wish to discuss the possible retrenchment.
4. Management is giving you 21 calendar days' notice of the possible
retrenchment (22 April 2002 to 13 May 2002). This time is to be utilised by you to
think of any possible way of saving your position. These 21 days are taken as paid
leave.
5. Management will keep in contact with you during this period and
you are urged to contact me should you require more information or need to discuss
your position.
6. Should no satisfactory agreement be reached regarding your
position by the close of business on 13 May 2002, the company will have no option
but to give you one month's notice of retrenchment."
The letter is dated 19 April 2002 and yet the wording thereof is constructed as
if it had been written on 22 April 2002 which was a Monday. On the
probabilities, the letter was written the previous Friday (the 19 th April ). The
significance of the discrepancy is that a decision had probably already been
taken by then (Friday) and that the earlier meeting to which this letter by
IN THE LABOUR COURT OF SOUTH AFRICA
implication refers to, was of no consequence.
[5] In my view, to have given the applicant 21 days to save her own
position was very unfair in the circumstances. It is the respondent who bears
the onus of proving that its retrenchment was fair. In this letter the applicant
was given the entire initiative and responsibility to provide alternatives to her
redundancy which was already decided upon. This goes a bit further than the
situation where the employer presents the employee with a fait accompli in
principle, but gives the employee the opportunity to change the decision taken
and such a process has been regarded as fair.
On the facts of this case, that was not the position in Miss Grobler's office on
the 22 nd of April.
The applicant responded to this letter as if she accepted the situation therein
and created the impression that she was not taking the matter further. She
wrote a letter to the respondent: (Miss Grobler):
"Dear Amanda,
Please can I be paid for my 21 days my one month notice as soon as
possible? I will be leaving for England on 8 May to join my sister's company there.
Please send my blue card and RP5 as well. Thank you."
This letter is signed by the applicant. The letter is dated 29 April 2002. On the
same day, the respondent responded to this letter and the relevant portion of
that letter, dated the same day, to the applicant reads as follows:
"SECO Products is to be moved back to SECO thus resulting in your
position becoming redundant. The company requested employees with the
department to consider voluntary retrenchment/early retirement. Nobody,
however, applied. The company looked at LIFO as well as skill when
considering retrenchment. Two positions became redundant, one employee
retired and one (forced retrenchment). Management gave you 21 calendar
days' notice of a possible retrenchment (22 April 2002 to 13 May 2002).
This time was to be utilised by you to think of any possible way of saving
your position. These 21 days were to be taken as paid leave because of the
nature of your position in the finance department. Should no satisfactory
agreement be reached regarding your position by the close of business on 13
May 2002, the company would have no option but to give you one month's
notice of retrenchment. Management has considered and agreed to your
request to waive the 21 days for consultation and to pay you for this period
plus your one month's notice as you intend leaving the country."
IN THE LABOUR COURT OF SOUTH AFRICA
Then there is an invitation in this letter to the applicant, to sign the letter as her
acceptance of the aforesaid facts. She did and the letter was returned to the
respondent.
At first the applicant denied signing this letter. No signed copy was available at
first. The suggestion sought to be inferred therefrom, was that this letter was
typed up after the fact and she was not a party to these settlement proceedings.
When the original document eventually surfaced during the trial proceedings,
it reflected her signature. At first she denied that it was her signature. The
inference sought to be drawn therefrom, was that somebody from the
respondent had forged her signature. When it was pointed out to her that other
documents contained her signature which looked the same. She probably
reflected during the adjournment, and rather belatedly apologised and admitted
that it was her signature.
The letter is significant in many ways. Matters such as LIFO and the proper
motivation for the retrenchment are set out in this letter for the first time in
writing, well after the retrenchment and the purported consultation meetings.
In my view, the respondent should have discussed LIFO from the onset with
the applicant. The respondent wanted the applicant to merely attach her
signature to a letter, as an acceptance of certain events which were factually
incorrect and never occured. The respondent’s hands are not therefore clean
either when I consider the applicant’s less then honest conduct. An agreement
containing incorrect facts drawn up by the employer, to later claim some form
of exemption, is clearly not an acceptable labour practice.
[6] It was submitted that a settlement agreement to dispose of a
retrenchment can only be signed by an employee after consultation. In such
matters the settlement agreement is an attempt to dispose of any future claim
against the employee's employer. This matter is however distinguishable. The
against the employee's employer. This matter is however distinguishable. The
letter dated 29 April, signed by Miss Grobler, was the result of the applicant's
letter to the respondent, advising that she was leaving the country. This
employer was therefore entitled to believe that the matter had come to an end
and that there would be no consequences, even though on 16 May 2002, the
applicant nonetheless referred a dispute about an unfair dismissal to the
Commission for Conciliation, Mediation and Arbitration. (“the CCMA”).
[7] I considered, apart from the applicant's conduct, denying her signature,
the fact that she created the impression that she was leaving. She is entitled to
compensation but these two factors would impact on the amount of
compensation. Other factors I have taken into account is that the applicant lost
her house as a result of her retrenchment. If there was proper consultation,
where the parties sought to reach consensus, the applicant's position might
have been saved. She might even have understood that she was chosen for
retrenchment on the basis of LIFO and skills retention, as the respondent stated
in its letter.
In my view, the dismissal of the applicant was procedurally unfair and that
compensation equal to six months’ remuneration would be appropriate in this
case. For her partial success in this matter she is also entitled to costs. I
therefore order:
1. The dismissal of the applicant was procedurally unfair.
IN THE LABOUR COURT OF SOUTH AFRICA
2. The respondent is to pay the applicant compensation, equal to six
months' remuneration as at the time of her dismissal (R8 100 times six).
3. The respondent is to pay the applicant's costs in this matter.
___________________________
E. REVELAS
DATE OF HEARING: 3 MAY 2005
DATE OF JUDGMENT: 4 MAY 2005
ON BEHALF OF THE APPLICANT: ALLAN LEVINE AND ASSOCIATES
ON BEHALF OF THE RESPONDENT: LEPPAN BEECH ATTORNEYS