IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN
Reportable
CASE NO D113/00
DATE HEARD 5-8 September
2005
DATE DELIVERED 2005/09/13
In the matter between
CEPPWAWU [on behalf of Gumede] Applicant
and
REPUBLICAN PRESS (PTY) LTD Respondent
___________________________________________________
JUDGMENT DELIVERED BY
THE HONOURABLE MADAM JUSTICE PILLAY
ON 13 SEPTEMBER 2005
___________________________________________________
ON BEHALF OF APPLICANT: MR M PILLEMER &
MR T SEERY
(Instructed by Shanta Reddy
Attorneys)
ON BEHALF OF RESPONDENT: MR HUTCHINSON
(Instructed by Fluxmans
Inc)
JUDGMENT 13 SEPTEMBER 2005
PILLAY D, J
[1] This retrenchment has a long and acrimonious
history. On 3 May 1999 Mr Eitler, the Production
Director, announced to the three trade unions
having a presence at the respondent that the latter
had bought a new TR4 press. It was expected to be
installed in September. Furthermore, employees
engaged on the Cerutti machine could face
retrenchment if they did not work continental shifts
or a compressed working week, as referred to in
the Basic Conditions of Employment Act No 75 of
1997.
[2] Notice of restructuring and possible retrenchment
of workers was issued about 11 May 1999 (the
section 189 letter). On 28 May 1999 the
respondent met with the first applicant,
CEPPWAWU. Several further meetings were held
during which the respondent elaborated on the
information provided in the section 189 letter and
how the compressed working week would operate.
It impressed upon CEPPWAWU that there was an
urgent need to upgrade the respondent's
technology and outsource certain services, such as
cleaning and carpentry, in order to be viable and
competitive.
[3] On 17 July 1999 the respondent informed
CEPPWAWU that it needed to dispatch notices
regarding voluntary retrenchment by 21 July 1999,
in order to assess the position for compulsory
retrenchment. It also stated that the compressed
working week had to be implemented by 2 August
and that if CEPPWAWU was not agreeable to this
the retrenchment would be unavoidable.
Severance pay would not be paid in those
circumstances as a compressed working week was
an alternative to retrenchment.
[4] On 21 July 1999 CEPPWAWU made several counter-
proposals. They included delaying the
retrenchment until April the following year, when
the new machinery would be introduced,
introducing the compressed working week and a
night shift in other departments, negotiating with
customers to absorb affected employees, offering
early retirement and voluntary severance and
arranging interviews for cleaners before their
retrenchment.
[5] The respondent declined to stall the retrenchment,
declaring that the additional machinery introduced
in April 2000 would be a separate exercise, distinct
from the current plan. At that stage the respondent
was already overstaffed and pointed this out to
CEPPWAWU. Dismissing CEPPWAWU's counter-
proposals as not taking the process further, the
respondent repeatedly referred to the progress it
had made and the agreements it had reached with
the majority union, the South African Typographical
Union (SATU).
[6] It then invited CEPPWAWU to consultations on
28 July 1999 to finalise matters. If CEPPWAWU
failed to attend the meeting, it was warned that
agreements reached with the other two unions
would be implemented. The respondent persisted
that it would implement the compressed working
week by 2 August 1999 and if CEPPWAWU's
members failed to accept this "proposal"
unequivocally by that date they would be
retrenched. CEPPWAWU attended the meeting of
28 July 1999. No minutes of that meeting are
available as, for some reason, the recorder did not
tape the discussions.
[7] The respondent issued a memorandum on 28 July
1999 to all three trade unions, inviting them to
send one shop steward each to participate in
discussions about the selection process to be held
on 30 July 1999. On the same day the respondent
issued another memorandum to all managers and
employees, informing them, inter alia, that on the
afternoon of Friday, 30 July 1999, employees whom
the respondent proposed to retrench would be
notified and, pending conclusion of the
consultations on selection criteria, would be
released from their duties on full pay. Mr Soldatos,
the attorney for the respondent, explained that this
was a necessary measure as, from past experience,
sabotage became rife after the retrenchees were
identified.
[8] CEPPWAWU's members received letters informing
them that they were identified preliminarily as
persons who might be affected by the restructuring
and that CEPPWAWU's representatives were
requested to submit representations about the
selection criteria that the respondent proposed. A
list of employees who might be affected was
purportedly also issued. That list could not be
found subsequently and it did not form part of the
documentary evidence at the trial.
[9] The individual applicants submitted their letters to
CEPPWAWU and awaited its further guidance and
reports. They remained suspended on full pay until
they were retrenched on 6 August 1999, which was
extended to 6 September 1999. CEPPWAWU did
not respond to the invitation to make
representations about selection criteria by 4 August
1999. Instead, it referred a dispute to conciliation
on 3 August 1999.
[10] Mr Pillemer, for the applicant, submitted that
CEPPWAWU ceased to engage the respondent after
it refused to stay the retrenchments because, until
then, it had believed that the retrenchments were
caused by the new machinery.
[11] CEPPWAWU's belief was not misplaced.
Mr Soldatos conceded that initially it was mooted
that the restructuring was as a result of new
machinery. The section 189 letter discloses a two-
fold strategy of restructuring occasioned, firstly, by
the intention to introduce new technology and,
secondly, to trim costs by outsourcing and using
temporary employment services. New technology
was to be introduced in Galvano forklift driving
(assistant positions), impose/DTG, finishing,
dispatch and mailing departments. The cleaning,
mechanical engineering, carpentry, electric,
electronic and quality control departments were to
be outsourced. Other positions that were
redundant were in stores and administration.
[12] Not only is memory a casualty of the delays in
prosecuting this action. Key witnesses on both
sides, namely CEPPWAWU's organizer and the
respondent's human resources manager have
passed away, as have five applicants. Best
evidence of what triggered the referral of the
dispute would have been forthcoming from the
organizer. Applicants who testified were not aware
of the niceties of CEPPWAWU's plan in taking up
their case.
[13] Shop steward Mr Myandu, who attended a meeting
as an observer on a without-prejudice basis on 4
and 5 August 1999 after the dispute was referred,
was not called by the applicant. He was
nevertheless made available to the respondent if it
wished to call him. It did not do so.
[14] The Court is left to infer from all the circumstances
precisely what led to the break-down in relations
between the parties. It drew great assistance from
the bundle of documents which have been handed
in. Except for parts of Exhibit D1, the documents
were admitted by agreement to be what they
purported to be without proof thereof and the
minutes were agreed to be an accurate record of
what had transpired at the consultations. The
material facts are largely common cause. My
conclusions are based mainly on the facts as
presented by the respondent.
[15] CEPPWAWU appreciated that some departments
and services were to be outsourced. It made
appropriate proposals, such as negotiating for
employment by the service provider. However, a
substantial part of the restructuring was as a result
of the introduction of new technology in several
departments.
[16] Starting with the announcement by Mr Eitler on
3 May 1999 and followed through in consultations
with the respondent, including its attorney,
Mr Soldatos, who attended the consultations, the
impression was created that the introduction of the
new machinery was imminent. For instance, at the
meeting of 28 May 1999 Mr Soldatos proposed that
if a second-hand press was purchased for the
machine room, the Cerutti could cease producing in
July 1999.1 CEPPWAWU questioned the respondent
about why it was not consulted prior to the
respondent taking the decision to purchase new
technology.2 It raised no questions about when the
new machines would be introduced because, based
on the information it received from Messrs Eitler
and Soldatos, it was not an issue. The first that
CEPPWAWU learnt that certain new machines
introduced in April 2000 was when it received the
respondent's letter of 19 July 1999. The content of
that letter was in other respects also not conducive
to consultations in good faith.
[17] CEPPWAWU's counter-proposals of 21 July 1999
were constructive and predictable. It was
agreeable to the implementation of the compressed
working week. Contrary to Mr Soldatos' evidence,
CEPPWAWU was not at all times opposed to the
retrenchment in its entirety. With the respondent's
reply to its counter proposals, CEPPWAWU was
1Exhibit B8
2See B18
already being put on terms to agree to the
implementation of the compressed working week.
Other than rejecting its proposal to suspend the
retrenchment until April 2000, the respondent did
not engage CEPPWAWU on any of its other counter-
proposals.
[18] It seems to me, as it might have to CEPPWAWU at
the time, that the respondent had reached
agreement with SATU on certain aspects of a
retrenchment and was putting it on terms to fall
into line with that agreement. Furthermore, the
compressed working week was no longer a
proposal, despite the respondent's use of that
word.3 The alleged proposal had already calcified
into a decision. Against this background,
CEPPWAWU's referral of the dispute is not
surprising.
[19] Multi-union representation in a workplace calls for
the highest degree of diplomacy, tact and good
faith by the employer. To force an agreement
reached with one union on another union is akin to
waving a red rag before a raging bull. It is not
surprising that CEPPWAWU's organizer had retorted
to Mr Soldatos that he could not legitimise an
illegitimate process.
3Exhibit B68
[20] The respondent's lack of good faith and finesse also
manifests in the way it dealt with the selection
criteria for retrenchment, to which I now turn. In
response to CEPPWAWU's letter advising of the
referral and that it was in dispute, the respondent
invited CEPPWAWU on 3 August 1999 to a meeting
on 4 August 1999 to discuss the selection criteria
with the other trade unions. It also indicated that
the process would be completed by 5 August 1999.
In a further letter to CEPPWAWU, the respondent
recorded that it had discussed the selection criteria
with it and invited any queries it might have to be
submitted in writing by no later than close of
business on 4 August 1999. CEPPWAWU did not
respond. Its organizer did not attend the meeting
of 4 August 1999.
[21] Some shop stewards were present at that meeting
when it started. They were reluctant to participate
in the absence of the organizer or Mr Mnyandu.
The meeting proceeded to discuss the case of
individual employees. Mr Mnyandu joined the
discussions later. He clarified that CEPPWAWU's
representatives were present as observers. The
gist of his contribution was that the shop stewards
were attending that discussion without prejudice to
their rights to challenge the selection criteria. In
response to the invitation to appeal against the
proposed retrenchment, appeals had been made on
behalf of two applicants, namely Mrs James and
Mrs Pillay. Mrs Pillay denied any knowledge of the
appeal letter sent on her behalf. In any event, it is
common cause that the cases of these two
applicants were discussed at the meeting of 4 to 5
August 1999. The heads of department were called
into that meeting to justify their selection.
[22] The only ground of procedural unfairness raised by
the applicants is that the respondent failed to
disclose that it changed the selection criteria. In
the section 189 letter the respondent informed
CEPPWAWU that the selection criteria that it
intended to invoke would be last in, first out
("LIFO"), subject to skills retention and the inherent
requirements of the job.
[23] Mr Soldatos reaffirmed this at the meeting of
28 May 1999, making reference once again to "last
in, first out, subject of course, to the usual with
regard to special skills" (my underlining). In so
saying, he was also signalling that there was
nothing unusual about the selection criteria. The
respondent pleaded that the selection criteria was
last in, first out, subject to special skills and the
needs and exigencies of the respondent's
operation.
[24] Mr Hutchinson, for the respondent, submitted that
SATU had proposed early in the process that LIFO
subject to skills should be applied per department
and not across the board. He conceded that
nowhere in any of the bundles of documents is
there evidence that the respondent had notified
CEPPWAWU that LIFO would be applied
departmentally, nor was it explained that for
purposes of applying LIFO the date of entry into a
department would be considered, not the date of
employment by the respondent. The respondent's
explanation for the non-disclosure was that
agreement about what the selection criteria would
be and how it should be applied was only reached
on 30 July 1999.
[25] Mr Soldatos alleged that the Human Resources
Manager had informed him that CEPPWAWU had
been advised of what the selection criteria would
be. It is not clear from this that CEPPWAWU was
also advised how the selection criteria would be
applied.
[26] The respondent failed to comply with the Judge
President's directive in retrenchment matters,
despite being invited by CEPPWAWU to do so. More
specifically, it failed to state how the selection
criteria were applied. Precisely what criteria were
used and how they were applied only became fully
apparent when the respondent's witnesses, starting
with Mr Eitler, testified. Some indication that the
criteria were applied departmentally emerges from
the minutes of the meeting of 4 to 5 August 1999.
However, as discussed below, the minutes were
only given to CEPPWAWU after a court order was
obtained. It is therefore not notification of the
selection criteria as required for the purposes of
consultation in terms of section 189.
[27] Furthermore, the respondent knew early in the
process that SATU wanted LIFO to be applied
departmentally. Mr Soldatos himself conceded that
bumping across departments was always cause for
tension as management resisted it and trade
unions wanted it. From this I inferred that the
respondent was also disposed to applying LIFO
departmentally. In that event, the respondent
should have been forthright with CEPPWAWU from
the outset and disclosed its views and those of
SATU.
[28] The respondent had indicated at the outset that
the process would be concluded within about two
months, i.e. by about end-June 1999. It only tabled
selection criteria for discussion for the first time at
the meeting of 30 July 1999. By that stage
CEPPWAWU had already declared a dispute and
abandoned the process. The respondent wholly
misled CEPPWAWU into accepting that the criteria
would be LIFO, subject to skills, as stated in the
section 189 letter. The misrepresentation persisted
until the respondent's witnesses testified because
the respondent should have, but did not, plead or
otherwise disclose to the applicant precisely what
criteria it used and how it applied them.
[29] The respondent knew the language of negotiation
and conflict avoidance. However, Mr Soldatos'
reference to CEPPWAWU's representatives as
"comrades" did little to build trust as, in other
respects, the respondent showed it could not be
trusted.
[30] Mr Pillemer's submission on procedural unfairness,
namely that the respondent failed to notify the
applicant about the changes in the selection
criteria, is well-founded.
[31] The main thrust of the applicant's case is that the
dismissals were substantively unfair. Mr Pillemer
conceded that the respondent had a need to
restructure and to downsize. The need to retrench
was therefore not challenged. He submitted,
however, that the respondent had to select
employees to be dismissed according to selection
criteria which, if not agreed, were fair and
objective. (Section 189(7)(b) of the LRA.) The
requirement of fairness and objectivity applies both
to the criteria and the way in which they are
applied. The selection of all the individual
applicants was neither fair nor objective. In support
of this submission, the applicant relied exclusively
on the evidence of the respondent's witnesses and
on the facts that were common cause. Mr Pillemer
helpfully summarised this evidence in his heads of
argument, from which I now proceed to draw.
[32] Mr Eitler testified that the reason why applicant
Mr Mkhize, a driver, who had been employed since
1974, had been dismissed, while other drivers with
shorter service were retained, was because the
respondent did not look beyond the department
when applying LIFO. He could offer no valid
explanation why a driver with longer service could
not be retained by being substituted for one with
shorter service in another department.
[33] Various departmental managers and foremen
testified that, as directed by the human resources
department, they applied LIFO, subject to skills,
within the department. The effective date from
which service was calculated was the date on which
the employee started in the department, not the
date of employment by the respondent. Applying
LIFO in that way is, as pointed out in General Food
Industries Ltd, trading as Blue Ribbon Bakeries v
Food and Allied Workers Union (2004) ILJ 1655,
open to abuse. It is also manifestly unfair because
an employee with years of service with the
respondent can be selected for retrenchment from
a department where she has worked only a few
months if there are other employees who worked
longer in the department but who have
considerably shorter service with the respondent.
This is, in fact, what happened to Mrs James.
[34] In her letter of appeal Mrs James set out fully her
long history with the respondent since her
employment on 10 April 1987 and the many skills
that she had acquired. She accepted the
respondent's need to reduce the number of clerks
but denied that her position was redundant. She
was multi-skilled, she had seen other people doing
her work. She was selected for retrenchment
because she had only four years' service in the
department, having transferred from the
respondent's branch in Mobeni.
[35] When Mr Sanjiv Devraj, a production foreman,
testified, it also became clear that he interpreted
"skills" to mean efficiency. What was
communicated throughout to the applicants was
that LIFO would be applied subject to special skills.
Mr Eitler conceded that workers in the category of
assistants and aides were low-skilled workers. They
could acquire the skills for a particular department
within a few days. Mr Devraj contended that about
three months was required. He seemed to base
this on the fact that workers were usually employed
on three months' probation. Having regard to
Mr Eitler's description of the tasks carried out by
assistants and aides, it seems to me that they were
"look and learn" jobs in the main. As applicant
Mr Cele testified, it could take a few weeks to
master the tasks. The “special” skills were, after
all, not so special that they could not be imparted
to the employees with longer service within a short
time.
[36] The test for skills was based entirely on the
subjective opinion of the foremen and managers.
Employees were not aware that their skills were
being assessed, nor were they given an opportunity
to comment on any assessment made of them
before their names were submitted to the human
resources department for retrenchment.
[37] The subjectivity of the process undermined its
integrity altogether. Skills cannot be a fair
selection criterion for unskilled or low-skilled jobs.
Unskilled and low-skilled workers are especially
vulnerable to arbitrary subjective selection if
criteria such as skills are used. Mr Devraj
demonstrated the arbitrariness of the application of
LIFO, subject to skills, when he testified that he
transferred one employee to a new department
because he, Devraj, felt it was unfair to dismiss him
as he had long service and could do the job to
which he was transferred. The ability to do the job
should have been an inquiry that the respondent
should have made in respect of every employee
proposed for retrenchment. For instance, applicant
Mrs Ngcobo was employed as a cleaner. However,
the respondent engaged her over week-ends as a
knocker-packer. She was employed in 1981. An
employee engaged in 1994 was retained instead of
her. Applicant Mr Faye, who had acquired several
skills over the years, was promoted to the position
of deputy foreman. His post became redundant.
He was retrenched without any inquiry as to
whether he was willing to do the work of his
subordinates whom he supervised. His ability to do
the work could not have been in question as he had
progressed up the ranks through those very tasks.
As in the case of the driver Mr Mkhize, applicants
Messrs Ngwabi and Ndlovu were jack operators, a
position which was identical in every department.
It involved driving a machine that moved pallets
around the factory. Ngwabi was employed in 1989
and Ndlovu in 1976. Many other jack operators
with considerably shorter service with the
respondent were retained instead of them.
[38] The scope for manipulation is also heightened in a
multi-union workplace. The arbitrariness of the
application of the selection criteria emerges from
the case presented by Mrs James. She alleged in
her appeal that her foreman selected her to
victimise her for having grieved against him
previously for showing favouritism. Mr Mnyandu
had submitted on her behalf that the foreman had
selected a person with lesser service because it
was rumoured that he was having an affair with
her. The allegation of an affair between the person
retained and the foreman was fobbed off as a
private matter when it was raised at the meeting of
4 to 5 August 1999.
[39] The selection criteria and the way they were
applied prejudiced all the applicants. Managers
and foremen were not instructed to apply bumping
with LIFO even within the department. Thus multi-
skilled employees with longer service whose
positions became redundant were not considered
for other jobs even within a department. In some
cases bumping to achieve LIFO would have resulted
in demotion. The respondent did not offer lower
positions to employees with long service.
[40] Mr Hutchinson submitted that bumping is feasible in a small
business but not in a business as large as the respondent. He
also said that vertical bumping that results in demotion could
not be implemented without the co-operation of CEPPWAWU. In
Porter Motor Group v Karachi (2002) 23 ILJ 348
(LAC) at paragraph 4-5, NICHOLSON JA opined in
passing that where small numbers are involved the
implementation of horizontal or vertical bumping
should present few problems. Large-scale or
"domino bumping" necessitates vast dislocation,
inconvenience and disruption. It should
nevertheless be considered but be directed at
achieving fairness to employees, while minimising
the disruption to the employer. (Porter Motor Group
at paragraph 5)
[41] Although the learned Judge intimated that the
independence of departments as separate business
entities may be relevant, he nevertheless urged
employers to consider inter-departmental bumping
unless it was injurious. (Porter Motor Group at para
8) In General Food Industries Ltd above ZONDO JP
held that independent business units with their own
cost centres was not a bar to bumping.
Significantly, the Judge President and NICHOLSON
JA presided in both these cases and the decisions
were unanimous.
[42] There is a huge difference in effect between LIFO
applied departmentally and across the board.
Bumping is a measure applied to boost the
application of the LIFO principle as fully as possible.
In my opinion, the respondent wanted to avoid a
debate about the principles to be applied in
determining the selection criteria and how they
should be applied. Instead, it tried to tether
CEPPWAWU to a framework that it had substantially
predetermined with SATU.
[43] The respondent's misrepresentations and
subsequent failure to disclose fully and timeously
precisely what the selection criteria were and how
they were applied is also in bad faith and unfair.
The selection criteria, even as determined by the
respondent, were applied in a manner that lacked
integrity, objectivity and legitimacy. It failed then
to secure the confidence of the applicants and now
the Court. The respondent failed to discharge its
onus of proving, firstly, that the selection criteria
were fair and were applied fairly. and secondly, that
the dismissals were substantively fair.
[44 ]Against this finding, applicant Mr Zuma, whose
name inadvertently fell off the list of applicants, is
reinstated as an applicant. Mr Hutchinson resisted
this as he alleged that the respondent would be
prejudiced because it did not have an opportunity
to lead evidence in support of Zuma's
retrenchment. Whatever the evidence might have
been, it would not have enabled the respondent to
regularise an inherently flawed framework for
retrenchment.
[45] The failure to consult in good faith is a serious
indictment. Bad labour practices is bad for
business. This is especially so in a constitutional
democracy where fair labour practices are elevated
to a constitutional right4 and are integral to the very
dignity of workers. Consequently, when employees
are mowed over to make way for better technology
and bigger profits without a genuine attempt at
avoiding their dismissal or minimising the hardships
for them, the penalties to be imposed on employers
must be proportionately higher. From all accounts,
the respondent had done well since the
restructuring. On the other hand, many individual
4Section 23 of the Constitution of RSA Act 108 of 1996
applicants have not found secure employment
since. Some have casual partial employment
through the labour broker to whom the respondent
outsourced certain services. They perform the
same services for which they had previously been
employed with the respondent for considerably
lower rates of pay. Other employees have not been
successful in securing employment with the labour
brokers. Casualisation of labour as a phenomenon
of the technological age is hard to combat. The
least that can be done is to ensure that workers
who suffer its consequences are treated humanely
and with dignity. In the circumstances, those
employees who want to be reinstated must be
reinstated and those who want to be compensated
must be compensated maximally. In coming to this
conclusion I also take into account the respondent’s
conduct throughout the dispute.
[46] The respondent's bad faith is manifest from several
altercations that occurred between the parties. Firstly,
the respondent did nothing to resolve the dispute as
soon as it became clear that bumping was endorsed by
the Labour Court as an acceptable measure to be
applied with the LIFO principle. I accept in favour of the
respondent that when the consultations were held in
1999 there were no published cases of the Labour Court
on the issue. This position changed in 2000 in the
Labour Court decision of Karachi v Porter Motor Group
(2000) 21 ILJ 2043 (LC) issued on 19 July 2000. The LAC
confirmed this decision in February 2002 and gave
comprehensive justification for its endorsement of the
measure. On 30 June 2004 the LAC reaffirmed, with
even greater conviction, that it endorsed bumping.
[47] At no stage did the respondent stop in its tracks
and re-evaluate its defence. It was represented
throughout by lawyers experienced in the practice
of labour law. It must have known of the serious
weaknesses in its case. Instead of settling the
matter, it gambled on avoiding a trial by taking
technical points, which are discussed below.
[48] Secondly, the respondent failed to supply
CEPPWAWU with information that was foundational
to determining the issues in dispute in this case.
CEPPWAWU was driven to bring an application to
compel the production of information. One such
piece of information was Exhibit D. Exhibit D1 was a
list of employees who were retrenched and retained
in the departments affected by the restructuring.
Their job titles and dates of engagement were also
reflected. Such a list is indispensable to any
meaningful engagement about restructuring. A list
substantially in the form of Exhibit D1 should have
been made available during the consultations. To
say that the respondent was not aware that the
selection criteria would be an issue in dispute until
the Court ruled on this issue on the first day of the
trial is no excuse. Irrespective of the trade union's
conduct, the respondent had an obligation to
objectively establish the procedural and
substantive fairness of any retrenchment. Exhibit
D1 was indispensable to enable the respondent to
discharge this onus. The more probable reason why
it did not produce Exhibit D sooner is that if it did so
it would have been manifest that LIFO was applied
departmentally and that applicants with longer
service were retrenched in favour of those who had
shorter service.
[49] Thirdly, in my opinion, the respondent was keen to
avoid or delay the trial as far as possible. It
avoided the first trial date in January 2005 by
persuading NGCAMU AJ to call on the applicants to
explain the delay in prosecuting the action. When
the trial eventually started the respondent applied
for leave to appeal against my ruling on the
explanation for the delay. From my reasons for
dismissing the application for leave to appeal, it is
manifest that the application was wholly unjustified.
Then followed an application for a postponement to
enable the respondent to petition the Judge
President for leave to appeal. This was also
refused. Undaunted, the respondent made another
application for a postponement on the curious basis
that the applicant needed to amend its pleadings. I
found that the applicant did not need to amend its
pleadings and refused the postponement.
Technically, the respondent had a right to call for
an explanation for the delay, to apply for leave to
appeal against my ruling and to object to the
applications for substitution. That it chose to
exercise these rights is telling of its unwillingness to
resolve the dispute fairly and finally.
[50] Fourthly, five of the individual applicants had since
passed away. The respondent objected to any
order being granted in their favour because, firstly,
the representatives of the deceased estates had
not made a formal application or give notice for
their substitution. Mr Hutchinson contended that it
was not sufficient for Mr Pillemer to apply from the
Bar for their substitution. Secondly, the respondent
alleged that the deceased were not properly
represented. In the case of three of the deceased,
letters of authority in terms of section 18 of the
Administration of Estates Act No 66 of 1965 were
issued. In the case of the remaining two deceased
applicants there were no letters of authority or
executorship. The respondent resisted suggestions
by Mr Pillemer about ways to overcome these
technical obstacles.
[51] The Court made it clear that it would grant the
application for substitution made from the Bar
unless the respondent had good cause to oppose it.
Only then did the respondent withdraw its objection
to the substitution.
[52] I accepted Mr Pillemer's submissions from the Bar
in respect of those employees who did not testify
because the individual applicants were in court and
could have been called to testify about their
reinstatement if the respondent so wished. With
regard to those who are deceased, the respondent
had no means of challenging their reinstatement on
grounds specific to each deceased. The
appropriate order in their case is therefore to limit
their remedy to 12 months' compensation as
allowed by the statute.
[53] Mr Pillemer submitted that no deductions should be
made from the back-pay of those who are to be
reinstated as the respondent had an equal duty to
ensure the speedy prosecution of the action. It
knew that it carried the risk of a full back-pay order
if the workers were reinstated. Therefore, it should
have taken steps itself to prevent the matter being
archived by the Court. Instead, it took the risk of a
full reinstatement order by doing nothing and
hoping to let sleeping dogs lie. Mr Pillemer
therefore asked that the respondent be directed to
reinstate the individual applicants fully without
deducting the period of delay. I do not agree. If I
did, I would, on the one hand, be rewarding the
negligence of the applicants' attorneys and perhaps
even absolving them of their liability to their clients.
On the other hand, I would be condemning the
respondent for its inaction or attempting to seize a
tactical advantage in the normal course of
litigation. I estimate the period of delay to be about
2½ years from 2002 to mid-2004. This period
must be deducted from the back-payment.
[54] The parties submitted a list of applicants to whom
compensation only is payable with the rates of
remuneration agreed in respect of each employee.
[55] The order that I grant is as follows:
(1) The dismissal of the individual applicants is
procedurally and substantively unfair.
(2) The following 28 applicants are reinstated in
their employment with the respondent with
effect from 7 September 1999 on the same
terms and conditions as applied at the date of
their dismissal on 6 September 1999.
Clock No Name
8093 L B Mbatha
8213 W Myandu
9332 B L Ngwabi
9375 B B Ndlovu
4491 Mariamma Pillay
5908 R Munsamy
7417 P P Faye
7721 J P Khumalo
7724 M A Khuzwayo
8041 M P Myeza
9350 S S Ngwabi
4925 U James
7153 J G Cele
7729 M M Khanyile
7972 K E Maphumulo
8899 E M Ngwabi
8927 N C Ntwani
7037 S E Bhengu
8233 S M Magwaza
3242 C Coetzee
8667 P Ndlovu
8199 A S Mthiyane
7136 J A Cele
8884 T P M Ndlovu
7275 S B Dube
8955 Z E Ngcobo
7723 T A Khuzwayo
9893 V N Zuma
(3) The order in paragraph (2) is subject to the
following deductions from the back-pay:
(a) the equivalent of 2½ years' remuneration
in respect of the delay occasioned by the
applicant;
(b) any notice pay and severance pay paid to
these applicants.
(4) The following seven applicants are to be
compensated in the amount equivalent to
12 months' pay at the agreed monthly rate:
Clock No Name Agreed monthly rate
7478 S G Gumede R1 879,40
7962 S M Mkhize R2 109,16
8980 A M Mkwanyana R1 700,32
8185 I Majozi R1 880,00
7740 M T Khalala R1 287,84
9340 M R Ngcobo R1 700,16
7585 C Hlongwe R1 997,48
(5) The estates of the following three deceased
applicants are to be paid compensation in the
amount equivalent to 12 months' pay at the
agreed monthly rate:
Clock No Name Agreed monthly rate
7976 C T Mfayele R2 025,00
8100 E S Mngadi R1 287,84
8922 P Ndlovu R1 997,48
(6) The following two deceased applicants are to
be paid compensation by depositing with the
Master of the High Court the equivalent of 12
months' pay at the agreed monthly rate:
Clock No Name Agreed monthly rate
8980 A M Mkwanyana R1 700,32
8073 B Z Makhanya R1 880,20
(7) Interest at the prescribed rate of 15,5% per
annum shall accrue on all payments from date
of this order.
(8) The respondent is ordered to pay the
applicants' costs of the action, such costs to
include the costs of two counsel.
(9) The respondent is ordered to pay the
applicants' costs reserved in the application to
compel the production of documents.
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