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IN THE LABOUR COURT OF SOUTH AFRICA
(Held at Johannesburg)
Case No: J221/97
In the matter between
UNITED PEOPLE'S UNION OF SOUTH AFRICA First Applicant
85 others Second and further Applicants
and
GRINAKER DURASET Respondent
JUDGMENT
The second to 85th applicants were dismissed by the respondent in early February 1997. At all material
times they were employed at the respondent's Brakpan factory and were members of the first applicant,
which became the recognised bargaining agent for the factory's hourlypaid employees when it achieved
majority status in January 1996. The respondent is a manufacturer of cementatious products for the mining
and transport industry, the most significant of which for purposes of this matter are concrete electrification
poles and sleepers for the railways industry.
The applicants now claim that their dismissal was unfair on a number of grounds. The essence of their case,
however, and the issue which this Court is called upon to decide in terms of section 188 of the Labour
Relations Act 66 of 1995 ("the Act") is whether the dismissal was for a fair reason based on the respondent's
operational requirements and whether it was effected in accordance with a fair procedure. In assessing both
aspects, the provisions of section 189 must be taken into account, with emphasis on those aspects placed in
issue by the applicants.
Section 189 provides, in summary, that when an employer contemplates dismissing employees for
1
operational reasons it must consult any person whom it is required to consult in terms of a collective
agreement or, if there is no such agreement, with the registered trade union whose members are likely to be
affected or, if there is no such trade union, with the employees themselves or their representatives
nominated for the purpose. Furthermore, the employer must inter alia disclose in writing to the other
consulting party all relevant information, allow the other party to make representations and respond thereto,
all with a view to attempting to reach consensus on appropriate measures to avoid or minimise the number
of dismissals.
As far as this Court can gather from the crudely drawn statement of case and various additional allegations
that surfaced during the lengthy trial, the applicants' allege that the respondent did not comply with section
189 because it did not honour a colective agreement, failed to consult with the first applicant or with the
employees about the retrenchment in general or the selection criteria in particular, had no good reason to
retrench the applicants, and failed to comply with a further agreement that it would reemploy them as and
when jobs became available thereafter. I mention in passing that the latter averment was disposed of during
the course of the trial when the Court ruled that the alleged failure to reemploy the applicants fell outside
its jurisdiction because it is arbitrable in terms of item 2(1)(d), read with item 3(4)(b), of Schedule 7 to the
Act.
The thrust of the respondent's defence was that it had compelling reasons to retrench the applicants, that it
did so only after exhaustive attempts to avoid that expedient by less drastic measures, that it consulted or
attempted to consult with either the shop stewards or officials of the first applicant, or both, throughout the
process, that it tried in vain to involve the first respondent in meaningful consultations over selection criteria
and severance pay after finally taking the decision to retrench, and that to the extent that consultation fell
short of the requirements of the Act the dilatoriness and obstructive attitude of the first respondent's
officials, in particular that of Mr E Luthuli, (who represented the applicants in these proceedings) was to
blame.
An assessment of the merits of these opposing viewpoints can only be properly assessed against the
background of events leading to the individual applicant's retrenchment. Before sketching it, I hasten to
point out that the Court relies on the oral and documentary evidence of the respondent which was either not
specifically challenged by the applicants or was merely rejected by blanket denials which had no
foundation. Specific facts in dispute will be dealt with anon.
Background
2
The story begins in September 1997, when the respondent's management met the six shop stewards of the
first applicant and informed them that there had been a drastic reduction in orders for poles by its principal
customer for that product, Eskom, and that in consequence a cutback in production was necessary.
Alternatives placed before the meeting by management ranged from early leave, through shorttime to a lay
off and, according to the respondent's human resources manager, Mr Vaughan Granier, the shop stewards
were warned that if there was no improvement rationalisation would have to be considered.
Seven days after that meeting, the respondent addressed a letter to the first applicant (which like all
subsequent correspondence was marked for the attention of Mr E Luthuli), placing on record the
respondent's desire to meet him urgently at the Brakpan site, and that due to the falling off of orders
production capacity was far exceeding customers' requirements, and the warning that if the situation did not
improve the retrenchment of about 80 employees would have to be considered.
A further meeting with the shop stewards was held on 30 September 1996 in which management explained
the problem with orders and its consequences in more detail and intimating again that should retrenchment
take place about 80 employees would be affected. A provisional list of names was also tendered by
management which, according to Mr Granier, was simply a computer list of staff sorted by date of entry into
service, with a line drawn across it 80 names from the bottom. The minutes reflect no input from the shop
stewards other than an undertaking to report back to the workforce, and a first intimation that rivalry
existing between members of the first applicant and the union that it had recently replaced as sole
recognised bargaining agent (CAWU).
The first meeting attended by Mr Luthuli was convened on 2 October 1997. The minutes thereof record that
management explained that the list produced at the previous meeting was "provisional" and that the worker
representatives agreed to keep it confidential. Three options were tabled by management: first, a reduction
of the team making poles from 80 to 33 to produce 96 poles a week; second, a split of the current workforce
into two teams, each to work two or three days per week; third, a layoff until the annual shutdown in
December. The employee delegation indicated a preference for shorttime on a factorywide basis, to which
management responded that such a measure would be disruptive for various reasons. Ultimately, however,
management came back, somewhat reluctantly it seems, with the proposal that 80% of normal hours could
be worked throughout the factory.
At a further meeting on 4 October 1996 (at which Mr Luthuli was not present) the shop stewards stated that
they would accept "option 4" (which was not tabled at the previous meeeting) ie that the workers in the
poles section would be split into three teams of 25, each working at normal pay rates, with work limited to 3
one line. The implementation of this system was preceded by an assurance by management that the working
of shorttime would not affect leave and bonus benefits due at the yearend.
On 18 October 1996 a disagreement arose over what the company alleges had been previously agreed to. On
1 November 1996 the respondent indicated that since in terms of the shorttime regime in the poles section
96 poles were still being produced daily, a storage problem was being created. Once again, it was clearly
intimated to the first applicant that since shorttime was no longer an option "the company will be forced to
consider retrenchments".
However, the respondent did not resort to dismissal. On 5 November 1996 a a further meeting was held
against the backdrop of a work stoppage. Mr Granier later recorded inter alia (and this went unchallenged
by the applicants) that the workers tabled proposals and understood that "in January they might face
retrenchment, which would be by means of LIFO with skills retention".
On 7 November 1996 a layoff was implemented in terms of a signed agreement in the section producing
prestressed poles and sleepers (the "longline section", so named because of the technique used for making
these products). A further term of the agreement was that "the company would not address any further
issues regarding the layoff without the presence of the Mr E. Luthuli on site and he undertook to be
available within 3 days of any request by the company". Mr Granier explained that this term was included
because Mr Luthuli had expressed concern that management was communicating directly with the workers.
Mr Granier testified that several attempts were made thereafter to contact Mr Luthuli telephonically, and
written messages were then sent to him on 19 and 20 November 1996 expressing concern at his
unavailability for a further meeting, and requesting him to contact the respondent. Mr Luthuli then
confirmed his availability for 26 November 1996, but another union official, Mr D Luthuli, arrived in his
stead (with an agenda that according to management was new) and confirmed that neither he nor Mr E
Luthuli would be available for a further two weeks. Nothing was achieved at that meeting. According to Mr
Granier, management had conceived its purpose to be the finalisation of a retrenchment procedure which,
along with gievance and disciplinary procedures, had been left for further negotiation after the main
recognition agreement was accepted by both parties in January 1996.
The only official of the first applicant who could meet the respondent before shutdown in midDecember
was a Mr Ntsoane, whos decliend to discuss the proposed retrenchment procedure and
prroposed that the issue be deferred until the new year.
4
On january 1997, the respondent according to its version commenced attempts to contact Mr E Luthuli from
8 January. Having received no reply from the first applicant, the respondent informed it on 14 January 1997
that there was no option "but to consider further steps". It confirmed, however, that they would not be taken
without consultation. A further communication in similar vein was sent on 16 January, and the first
applicant responded with an undertaking to meet on 20 January, which was honoured. At this meeting, the
respondent outlined the history of its orders problem in detail and concluded with the statements "we have
no work [in the poles section]" and "we believe retrenchments necessary". It further set a deadline for a
decision on the retrenchment procedure namely, 16h30 on 21 January 1997. The trade union delegation
then noted that the problem had affected only two departments and asked whether retrenchments would by
"by departments only or company as a whole". After a caucus, the union delegation made three demands:
that shorttime be implemented; that the retrenchment procedure to be speedily finalised; and that
respondent disclose is "books" to a union financial expert. Management indicated its willingness to discuss
the retrenchment procedure and expressed the hope that the issue should be resolved "within days".
The parties continued discussing the retrenchment procedure at a further meeting the next day. Since
matters were reaching a head at that stage, the relevant contents of the minutes of this meeting need to be
dealt with in some detail. The company proposed that the old retrenchment agreement between CAWU and
itself (which had lapsed when the first applicant became the majority union) be used in the absence of a
replacement, which the union delegation rejected as being inapplicable to them. The union delegation is
then quoted as making the following observations: "Better the company discharges all employees of age
from 58 up" ... "those people who are injured should be the ones to leave", and further:
"We propose First In First Out, as the correct way of selecting employees for retrenchment. This is because
the older employees have got good pension funds, and provident funds, and they will be rich if they are
retrenched. They will be able to continue living for a long time on the money they have get from their
retrenchment. The younger employees cannot do this they have very small pension funds and they cannot
survive without their jobs."
Management responded by observing that selection on the basis of age was discriminatory, and asked
whether its proposal of LIFO was the only problem the union had with its proposal. The reply was
ambiguous. According to Mr Granier, he then drew a list of possible selection criteria on a white board and
asked the shop stewards for their view on which were fair and unfair. Their reply was as follows:
"We believe that F.I.F.O. is fair. We are aware that L.I.F.O. will mean that mostly UPUSA members will
lose their jobs, and we are not happy. We think the company is siding with CAWU by insisting on L.I.F.O. 5
and is trying to get rid of UPUSA, and we are insiting on F.I.F.O."
Management, for its part, ended by insisting on LIFO, and it was agreed that whatever selection criteria
were ultimately adopted must be fair and objective and not in contravention of the Act.
The following day (22 January 1997) the company responded to the union's demand for financial disclosure
by saying that financial reports were a record of the past, giving an assurance that the respondent was in no
danger of closing down, and pointing out that the problem underlying the proposed retrenchments related to
the decline in orders alone. It indicated that it was prepared to disclose details of stock on hand, orders on its
books, and current market conditions (which indeed it had already done). Mr Luthuli responded by saying
that he had been instructed not to accept retrenchment without seeing "the financial report". The union
delegation then proposed either a general reduction of working hours, shorttime or a factorywide layoff.
Management agreed to the latter alternative, and undertook to address the workforce.
The layoff was implemented on 24 January 1997, to which the work force responded with an unprotected
strike. Management sought a further meeting with the first applicant on 27 January. At the same time, the
respondent referred the dispute about disclosure to the CCMA. At the factory, management noted various
threats against the lives of persons not affected by the layoff, and expressed its concern to both CAWU and
the first applicant. CAWU responded by saying that its members were unwilling participants in the strike
"due to the high level of conflict between them and their colleagues emanating from this action".
The next meeting between management and shop stewards and officials of the first applicant (including Mr
E Luthuli) took place on 27 January 1997. At this meeting, the union representatives made a strong call for
shorttime across the factory, and management argued for a factorywide layoff based on LIFO. At the
meeting the following day there was a reference to a draft retrenchment procedure which the company
claims to have given to another union representative, Mr D Luthuli, at the meeting of 26 January (this was
strenuously denied by Mr E Luthuli). The latter is, however, quoted in the minutes as saying: "I saw your
draft, but I do not want to discuss it, as I do not agree with it." The company expressed the hope that the
retrenchment procedure would be finalised by the end of that week so retrenchments could commence the
following week.
The union delegation then raised the dispute regarding disclosure of information that had been referred to
the CCMA, and apparently insisted that the respondent desist from any further steps until that issue had
been resolved. This was the last meeting between the parties concerning the retrenchment.
6
On 31 January 1997 the respondent wrote to the first applicant, stressing the urgent need to finalise the
retrenchment procedure so that retrenchments could begin on an agreed basis. On the same day, the
respondent proposed that the terms of reference of the CCMA conciliation regarding disclosure should be
expanded to "a wider issue incorporating the actual contents of the retrenchment procedure". There was no
response from the first applicant. On 4 February 1997 the company again proposed a meeting to discuss the
draft retrenchment procedure in Mr Luthuli's possession, which apparently elicited the reply that Mr Luthuli
would be engaged in the industrial court until 10 February 1997. This in turn prompted the further response
from the respondent after close of business on the same day:
"We wish to remind you of the urgency of this matter, as set out in numerous correspondences (sic),
telephonic discussions as well as numerous meetings at the Brakpan site, and confirm our telephonic request
of today, that you adjust your schedule, or at the very least allow your colleague to continue presenting his
case in order to enable you to attend on this matter.... We record your refusal to do so.
"We record that this delay of another 7 days before negotiations can even begin, and whetever delays are
occasioned by the negotiation process, are unacceptable to the Company for all the reasons clearly laid out
in previous correspondence and in today's telephonic discussions, chief amongst these reasons being the
unnecessary and extreme hardsip caused to those, who because of the delays previously caused by the
Union over this matter, were placed on layoff by the company and who are therefore without income at this
point."
These words were followed by a final ultimatum that if a response was not received by the following day (5
February 1997), "we will proceed to avail ourselves of the options available to us in terms of the Labour
Relations Act". According to a subsequent communication of the same day, the previous letter was followed
by a telephonic conversation between Messrs Granier and E Luthuli in which the latter, according to the
former, accused him of inter alia siding with CAWU in attempting to destroy the first applicant on site and
of seeking to undermine the first applicant by communicating directly with the workers. A further fax of the
same date referred to a message relayed through the CCMA at the previous day's proceedings, and stated
that if Mr Luthuli did not confirm his availability to meet directly with management, it would be assumed
that he intended applying for the intervention of the CCMA. The respondent further noted that should this
happen the layoff would have to be continued.
It did not happen. On 5 February 1997 the respondent accordingly addressed yet another communication
stating that in its view it had now exhausted the process and fully complied with the statutory requirement
of consultation with a view to reaching consensus, and adding:7
"We confirm that as far as the negotiations concerning Retrenchment Procedure to be applied at Grinaker
Duraset on an ongoing basis are concerned, the company remains available and willing to consult with your
organisation. In respect, however, of the need to retrench at Brakpan currently, the company will proceed as
below. The Company remains available to accept contributions from the Union in regard thereto, but failing
the reaching of consensus [emphasis in original] by 16h30 on Thursday 6 February 1997, the company will
proceed as follows:"
What follows is a statement that the retrenchment would be implemented in accordance with the draft
proposals submitted to the first applicant, which included payment of all normal contractual entitlements
and severance pay of one and onequarter weeks' pay for each completed years of service with the
respondent.
The above communication elicited an immediate response from Mr Luthuli, which accused the respondent
of having taken a decision "to retrench or lay off our members without any agreement" and of doing "the
selection criteria alone which shows bad faith and unfair labour practice". This letter ended with a
commitment that senior officials of the first applicant would be available on 12 February 1997 to "discuss
your Draft dated 28/01/1997". The respondent replied that it would be available to discuss the retrenchment
procedure on that date, but added that "the issue of negotiations regarding procedure, and the issue of
retrenchments at Brakpan were separate concerns and were to be dealt with separately". As to the latter, the
deadline of 16h30 on 6 February 1997 was repeated.
Since no reply was received by the deadline aforestated, the respondent advised the first applicant on 7
February 1997 that it had held a meeting the previous day with the available workers at which it had
outlined the history of the proceedings thus far, the package proposed, and the criteria for selection, and
requested them to inform as many of the laidoff workers as possible that a further and final meeting at
08h00 next morning. At that final meeting, the names of those selected for employment were read out. The
first respondent was requested in the final communication to help ensure that those retrenchees who were
not at the meeting would be informed that their severance monies would be ready for collection on 13
February 1997.
The applicants' case
It is on the basis of the above chronology that the merits of the applicants' contention that the respondent
failed to comply with the provisions of the Act must be assessed. Their specific allegations, and the
8
evidence led in relation thereto, will be dealt with seriatim.
a) No reason to retrench
The first is that the respondent had no reason to retrench the applicants in particular, or any of its
employees, in February 1997. The only evidence led by the applicants in relation to this claim were general
statements by its witnesses (and it must be emphasised that in this an all respects I disregard the numerous
factual assertions made by Mr Luthuli from the Bar) that the there was a great deal of work going on at the
factory at the time and that deliveries continued to be made. There was also reference by some of their
witnesses to overtime work being done and additional workers being taken on in one section, Duratank.
Apart from the fact that these claims are vague and unsubstantiated, they do nothing to detract from the
respondent's clear and unequivocal explanation for the redundancy of the positions in the longline section
that ultimately led to the retrenchments. That explanation was simply that the sharp drop in orders from
Eskom had led to a situation where continued production in that section had led to a serious overstocking
situation which was both uneconomical and dangerous: uneconomical because it makes no economic sense
to continue producing products for which there is no demand; dangerous because the weight of the product
required that stock in the speciallyprepared storage areas had to be limited to prevent sinkage and
collapsing of the stacks.
The respondents' explanation, in short, was simply that the imperative to synchronise demand and supply
made it necessary to reduce the labour required to satisfy dwindling demand. There is no indication on the
papers, or in the evidence, that the applicants challenged the respondent's economic rationale for introducing
shorttime or layoffs in late 1996 and early 1997. If one can assume from this an implied acceptance that
there were valid reasons for these expedients, one must in the absence of proof of any improvement in
orders (of which there is none) before February 1997 accept that there was a valid reason for the ultimate
retrenchment.
The only witness for the applicants who testified on this issue was Mr Elson Mashaba, who was at all
material times the chief shop steward at the plant. Mr Mashaba said he concluded from the fact that
deliveries continued to be made that the respondent's claims that orders for poles had fallen off were not to
be believed. When asked whether he had endeavoured to check whether overstocking had occurred, as
management claimed, he replied that he could not because management would not allow him to observe the
stacking areas. Asked by the Court whether the stacking areas were not clearly visible from the factory, Mr
Mashaba answered in the negative. The respondent's tender of an aerial photograph of the site to prove the 9
contrary was resisted by Mr Luthuli for no apparent reason. In the circumstances, I have no option but to
conclude that Mr Mashaba's testimony in this regard was untrue and that he was well aware of the situation
in the stock yards.
The only other basis for the applicant's claim that there was no valid reason to retrench was that some less
drastic alternative would have sufficed, or that the number of dismissals could have been reduced. The
answer to the first possibility is that the respondent had in fact tried shorttime and layoffs over a period of
some four months. It had thus not only considered alternatives, but had actually implemented them over a
lengthy period during which it seems clear that it regarded them as temporary expedients, and informed the
applicants of this view. Moreover, the record shows that the first layoff was accepted by the shop stewards.
That they might, as was claimed in evidence, have agreed thereto reluctantly in order to secure benefits over
the shutdown period does not alter the fact that the consented to it. The respondent's refusal to adopt the
suggestion of "rotation" was adequately explained. In any event, that too would have been a mere temporary
expedient.
In so far as the law requires an employer to have an adequate economic reason for retrenching employees
(see the suggestion to this effect in National Union of Metalworkers of SA v Atlantis Diesel Engines (Pty)
Ltd (1993) 14 ILJ 642 (LAC)), I am satisfied that the this was quintessentially such a case: see Môrester
Bande (Pty) Ltd v National Union of Metalworkers of SA & others (1990) 11 ILJ 687 (LAC) at 688J689B.
b) Failure to provide information
Mr Luthuli made much in closing argument of the respondent's alleged failure to disclose the information
requested by the first applicant, the dispute over which was dealt with at a CCMA conciliation meeting on 3
February 1997. This Court knows nothing of what transpired in that meeting, save that the respondent
resisted disclosure of financial statements on the basis that they were not relevant, and that the dispute was
not resolved prior to the retrenchment of the individual applicants.
The only issue for decision in these proceedings is whether the respondent's failure to comply with the
request for financial statements amounted to a breach of its duty to consult in terms of section 189. In my
view it did not. The duty to provide information in the context of a dismissal for operational reasons arises
from subsections (3) and (4) of section 189, read with section 16, subject to the changes required by the
context. Read thus, section 16 requires the disclosure of all relevant information that will allow the other
consulting party to engage effectively in consultation. Although a dispute over the provison of information
is a matter reserved for arbitration under the Act, its relevancy is material to a challenge to the fairness of a 10
retrenchment in that relevancy is one of the prerequisites to a duty to disclose: see National Union of
Metalworkers of SA v Atlantis Diesel Engines (Pty) Ltd (1994) 15 ILJ 1257 (A); FAWU v Premier Foods
Industries Ltd (Epic Foods Division) [1997] 6 BLLR 753 (LC).
Apart from the duty to provide information regarding the specific matters referred to in section 189(3), an
employer is not obliged to comply with a generalised demand for "information" unless the party making
such demand lays some foundation for its relevance. This is not a case, like NUMSA & others v Comark
Holdings (Pty) Ltd [1997] 5 BLLR 589 (LC) in which the employer had specifically claimed that it was
considering retrenchment because it was in financial difficulties. In the present case, the applicant first
raised a demand for financial disclosure on 21 January 1997 some four months after the respondent had
taken several steps to the detriment of the earning capacity of a number of its employees. When it did, it was
raised in the form of a generalised demand for "the books", which Mr Luthuli conceded simply meant the
amount of money the respondent had in the bank. When asked to explain the relevance such a figure would
have had, he suggested that the respondent could not have fairly retrenched if it had reserves of "millions".
But that is not the test where the employer does not plead poverty which the respondent never did in this
case. As mentioned above, its explanation was simply that the retrenchee's positions had become redundant
due to a reduction of work an explanation which was proferred at several meetings, and a fuller
amplification of which was offered in at least one. The applicants did not appear to be interested in this offer
at that time.
Furthermore, the respondent explained that since its Brakpan factory was not an independent unit, it was
impossible at short notice to produce financial statements peculiar to it. Since the applicants did not
seriously pursue the argument, faintly suggested by Mr Luthuli, that they should have been "bumped" to
other factories, the relevance of the financial state of the group as a whole or its other components appears
highly questionable. Indeed, the closest Mr Luthuli came to justifying the union's demand for the "financial
report" was the following words, as minuted, in the meeting on 22 January 1997: "If you show us the
balance sheet you protect the Union and yourselves in the face of the workforce. I do not want to lose Union
membership by not handling the issue properly." This hardly compelling reason was not elaborated on after
management frankly responded that "the financial statement will show that we are okay and carry on at this
stage".
I therefore conclude that the respondent cannot be faulted for not satisfying the applicants' demand for
financial disclosure between 21 January 1997 and the termination of the individual applicants' employment.
c) Failure to abide by an agreement11
The applicants further allege that the respondent breached the recognition agreement entered in April 1996.
In pursuing this ground, Mr Luthuli referred the Court to subclause 5.4 thereof which states that "[a]ny
agreement reached by the Negotiations Committee shall be reduced to writing and signed by all the
members of the Negotiation Committee at the time of the agreement".
I fail to see the relevance of this clause to the matter at hand. In the first place, the clause is obviously
procedural in the sense that it is aimed at ensuring that any agreements that have been reached should be
formally recorded and signed. Secondly, the clause in which the subclause is situated applies to the
procedures to be followed by the Negotiations Committee, the functions of which are clearly specified as
the negotiation of wages and conditions of service (see subclause 5.1).
Section 189 merely requires an employer to "attempt to reach consensus" prior to retrenching. In the
absence of a collective agreement to the contrary, an employer is not required to actually reach consensus
before deciding on steps pursuant to a retrenchment. As indicated below, I am satisfied that the respondent
did take what steps that could reasonably be expected of it to consult on appropriate measures to avoid the
dismissals or diminish their impact.
d) Failure to consult over selection criteria and severance pay
Apart from the alleged breach of the recognisiotn agreement, the respondent's alleged failure to consult with
the first applicant over the selection criterion it ultimately adopted is the only complaint raised pertinently in
the statement of case. It is true that between the final meeting on 26 January 1997 and the time the final list
of selected retrenchees was read to the assembled employees on 7 February there was no consultation on
this aspect. But mention of the LIFO principle runs throughout the meetings from September 1996.
Furthermore, I accept from his own evidence as corroborated by the documentation that at the meeting of 21
January 1997 that Mr Granier led a discussion on the the fairness or otherwise of various other possible
criteria for selection, including skills, qualifications, age, education, disciplinary records and the like. The
union delegation's response was an insistence on FIFO. Even if the applicants were, as they claim, under the
impression that they were discussing selection criteria for a layoff, it was never stated in evidence or
argument that they would have adopted a different approach had they known that retrenchment was at issue.
For reasons spelled out below, FIFO was their fixed aim, and they persisted in this Court with the claim that
by not implementing it the Applicant had acted unfairly.
I am mindful of the fact that after the respondent decided to convert the layoff into a retrenchment on 26 12
January 1997 the method of selection and severance pay was never discussed with the first applicant. In
Chemical Workers Industrial Union v Johnson & Johnson (Pty) Ltd, an unreported judgment handed down
by this Court on 26 September 1997, the employer was taken to task by this Court for doing just this. In my
view, however, the circumstances of that case are distinguishable in this respect from the present. The
respondent ultimatelu decided to apply a retrenchment procedure that had been given to the first applicant,
and which was based on that agreed upon with CAWU before it was unseated as the recognised union in
January. Nothing turns on whether it was given to Mr E Luthuli on 26 January 1997, as the respondent
claims, or on 28 January, as the applicants claim. The facts are that it was in the hands of the first applicant
when they met on the latter date and that Mr Luthuli told the respondent that he had seen the draft but did
not want to discuss it as he did not agree with it.
In any event, the respondent was not in the circumstances bound to delay the rationalisation caused by the
decline in orders for poles until an agreed retrenchment procedure was in place. I am satisfied that the
respondent's repeated attempts to persuade the first respondent to meet in order to discuss severance pay and
selection criteria amounted in the circumstances to reasonable attempts to reach consensus on these two
issues.
One factual dispute must be dealt with in this regard. The applicants insisted that they were retrenched on 4
February 1997. If this were indeed the case, the respondent's final appeals to the first applicant to meet in
order to discuss selection criteria before the deadline it had set for 6 February would have been a cynical
deception. However, I am satisfied that the retrenchees were given notice of termination of their contracts
on 6 February 1997, which means that the retrenchment was implemented on that day.
e) Adoption of selection criteria that were unfair per se
That the respondent strictly followed the LIFO principle in selecting the individual applicants for
retrenchment (so strictly, indeed, that it abandoned its original insistence on skills retention) is not in
dispute. Instead, the applicants advance the somewhat singular view that LIFO is inherently unfair because
it falls on those who are least able to stand the consequences of retrenchment. While this may be notionally
true, its opposite, FIFO, flies in the face of accepted international norms and labour standards. As the
respondent appears to have been well aware, it could well have faced an action from the longerserving
members had it looked to them before their more junior counterparts. Had the applicants not disingenguosly
disclosed their real motive for preferring FIFO during the trial, it would in any event have been difficult to
resist the conclusion that they supported it for the simple reason that most of the membership of the first 13
applicant was drawn from employees who were recently appointed. That motive was made abundantly clear
by Mr Luthuli when he accused the respondent of seeking to favour CAWU by choosing LIFO, applied
factorywide. Since absolutely no evidence was led to back this claim, I do not deem it necessary to deal
with it further. Nor do I deem it necessary to deal with the insinuation that the respondent was unfair in
confining the application of LIFO to hourlypaid workers and so ensuring that affected only "black"
workers.
f) Further grounds raised by applicants
Some further issues were raised by the applicants in a purported notice of amendment to their statement of
case, which the Court declined to allow at the commencement of the trial, but which Mr Luthuli persisted in
raising with various witnesses or in statements from the bar during the trial. Should I have taken an unduly
strict approach in so deciding, I deal with such matters in passing for the sake of completeness.
The first was that the individual applicants had requested the respondent to hold an "inquiry" and an
"appeal" after their retrenchment, and the respondent had refused. Having complied with section 189, the
respondent was under no obligation to hold further inquiries. The notion of an "appeal" is foreign to a
dismissal of operational requirements.
The applicants further suggest in the purported notice of amendment that the respondent employed casual
workers after telling the applicants that there were no jobs. No factual basis was laid for this claim in so far
as it relates to the period prior to the dismissals of the individual applicants. In so far as it related to the
period thereafter, it pertains to a failure or refusal to reemploy the applicants which, as already mentioned,
forms the subjectmatter of a separate dispute over which this Court has no jurisdiction.
The only relevance that this claim may have to the present dispute is that it might cast doubt on the bona
fides of the respondent when the decision to retrench was taken. However, the evidence presented to the
Court by the applicants affords no basis for a finding that the respondent acted mala fide by dismissing the
individual applicants while it was taking casuals into service.
Summary of the evidence
In summary, the overwhelming impression arising from the evidence as a whole is that the respondent had
compelling operational needs to dismiss 85 employees, that it tried all reasonable expedients over an
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extended period before finally deciding to do so, and that it sincerely attempted to involve the first applicant
in consultations until finally decided it could wait no longer to rationalise its labour force to meet the drop in
orders for poles.
As far as the first applicant is concerned, the impression is that it was willing to consult over measures to
avoid retrenchments until it became apparent that the respondent's proposal to retrench factorywide would
impact heavily on its members and membership. It was only at that stage that it sought to place in issue the
respondent's claim that it had a bona fide reason to retrench, and to insist on the conclusion of the permanent
retrenchment procedure that had been outstanding since April 1996. Had the respondent agreed to these
demands, it is apparent that it would have had to delay the decision to retrench for an undeterminable
period. That it might have been able to do so without financial loss because the the workers who were
ultimately retrenched were on layoff does not mean, as Mr Luthuli suggested, that the respondent acted
unfairly or that it did not have a bona fide reason to retrench when it decided to do so. The obligation to
consult placed on the employer by section 189 places a correlative duty on the other consulting party to co
operate in the attempt to reach consensus before the employer ultimately exercises its right to take the final
decision. A union cannot by claiming its right to information seek to unreasonably delay a bona fide
retrenchment exercise: Danster v D J & Sun Engineering CC (1989) 10 ILJ 435 (LAC); Chemical Workers
Industrial Union of SA v Lennon Ltd (1994) 15 ILJ 1037 (LAC). See also NEHAWU v University of Fort
Hare [1997] 8 BLLR 1055 (LC).
I am satisfied that in the circumstances prevailing at the Brakpan plant in February 1997 the first applicant
was given sufficient opportunity to do so between the time it was made abundantly clear that the respondent
intended to retrench (which was at the latest 27 January 1997) to the time the respondent took its final
decision to proceed unilaterally (5 February 1997).
In the result, I find that the dismissal of the second and further applicants was not unfair.
Costs
There remains the question of costs, which the respondent claimed against the first applicant alone on the
basis of its conduct during the retrenchment proceedings and that of its representative before and during this
trial. The Act permits this Court to make an order for the payment of costs according to the requirements of
the law and fairness and, when deciding, to take into account the conduct of the parties in proceeding with
or defending the matter and during the proceedings. I am conscious of the need, as a matter of policy, to
ensure that wouldbe litigants are not deterred from bringing bona fide cases to this Court by the fear of
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adverse costs orders, and that this Court should exercise reasonable tolerance in respect of delays caused by
the presentation of a case by lay representatives. However, the respondent's principal submission in this
regard is that the nineday trial of this matter would have been greatly shortened had the applicants' case
been more clearly presented at the outset.
As noted above, the statement of case appeared to limit the grounds upon which the applicants relied to two,
namely, noncompliance with the respondent with the recognition agreement and absence of consultation
over selection criteria. The minutes of the pretrial meeting on 12 August 1997 indicate that the aplicants
made no serious attempt to limit the issues, but simply denied all potentially controversial factual averments
made by the respondent (including the subsequently admitted fact that its members embarked on an
unprotected strike in January 1997) and gave notice that it had no questions for the respondent and would
raise any questions at the trial. The result was that the respondent, who on my suggestion in chambers
undertook to begin, had to traverse all aspects of the dispute in their evidence and face lengthy and often
repetitive crossexamination on all its evidence. I am therefore satisfied that this is a case in which fairness
dicatates that the normal rule that costs should follow the result should be applied.
Order
In the result, the following order is made:
1 The second and further applicants are not entitled to the relief sought.
2 The first applicant shall pay the respondent's costs on the ordinary High Court scale.
SIGNED AND DATED AT JOHANNESBURG ON THIS DAY OF DECEMBER 1997.
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