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United People's Union of South Africa and Others v Grinaker Duraset (J221/97) [1997] ZALC 11 (1 December 1997)

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Section 189 provides, in summary, that when an employer contemplates dismissing employees for 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 re-employ 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 re-employ 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

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 cut-back in production was necessary. Alternatives placed before the meeting by management ranged from early leave, through short-time 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 lay-off until the annual shut-down in December. The employee delegation indicated a preference for short-time on a factory-wide 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 one line. The implementation of this system was preceded by an assurance by management that the working of short-time would not affect leave and bonus benefits due at the year-end.

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 short-time 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 short-time 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 lay-off was implemented in terms of a signed agreement in the section producing pre-stressed poles and sleepers (the "long-line 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 lay-off 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 shut-down in mid-December was a Mr Ntsoane, whos decliend to discuss the proposed retrenchment procedure and

prroposed that the issue be deferred until the new year.

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 short-time 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. 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, short-time or a factory-wide lay-off. Management agreed to the latter alternative, and undertook to address the workforce.

The lay-off 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 lay-off, 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 short-time across the factory, and management argued for a factory-wide lay-off 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.

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 lay-off 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 lay-off 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:

"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 one-quarter 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 laid-off 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 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 long-line 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 over-stocking 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 specially-prepared 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 short-time or lay-offs 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 over-stocking 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 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 short-time and lay-offs 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 lay-off 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 shut-down 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 688J-689B.

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 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 agreement

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 sub-clause 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 sub-clause 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 sub-clause 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 lay-off, 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 lay-off into a retrenchment on 26 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 longer-serving 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 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 factory-wide. 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 hourly-paid 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 re-employ the applicants which, as already mentioned, forms the subject-matter 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 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 factory-wide 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 lay-off 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 would-be litigants are not deterred from bringing bona fide cases to this Court by the fear of 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 nine-day 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, non-compliance with the respondent with the recognition agreement and absence of consultation over selection criteria. The minutes of the pre-trial 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 cross-examination 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.

______________________

J G GROGAN, ACTING JUDGE

Dates of hearing: 1-5, 8-11 December 1997

Date of judgment: * December 1997

For the applicant: Mr E Luthuli of UPUSA

For the respondent: Adv N Willis, instructed by Webber Wentzel Bowens

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