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IN THE LABOUR COURT OF SOUTH AFRICA

HELD ATJOHANNESBURG CASE NO: J5470/00

In the matter between:

SELINAH MOSOETSA First Applicant

THEMBI RADEBE Second Applicant

and

EAST RAND CLEANERS (PTY) LTD Respondent

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JUDGMENT

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JAMMY AJ

1. The Applicants, until the termination of their employment by the Respondent on 1 September 2000, were employed by it in capacities which varied from time to time.

2. They allege that on 1 September 2000, they were retrenched and that that retrenchment was both substantively and procedurally unfair, in that no commercial rationale existed to justify it and that neither they nor their trade union, the National Entitled Workers Union were consulted on any basis which satisfied the requirements of Section 189 of the Labour Relations Act 1995.

3. The sole director of the Respondent, Mr M Bhana, was its only witness. The alleged unfairness of his termination of the Applicants’ employment was denied by him. Their selection for retrenchment was in the context of a broader retrenchment exercise implemented by him at the time and necessitated by a radical downturn in business which occurred as a result of the cancellation of a laundry contract with his company by the Glynwood Hospital in Benoni, that institution being his principal and largest customer.

4. The identification of the two individual Applicants, was made in the context of their respective states of health, which had been a cause for concern in relation to the discharge of their employment functions, for some considerable time. Some time before he received notification of the cancellation of the Glynwood Hospital contract, the First Applicant had indicated to him that she only wished to work until the end of the year 2000 in order to pay off certain debts which she had incurred. She was a severe asthma sufferer and in the light of that impediment, which limited the areas in, and functions which, she could perform in her work environment, it made sense to retrench her rather than to apply the normal LIFO criterion which would have resulted in someone with less service but in good health and multi-skilled, being laid off in her place.

5. The Second Respondent, Thembi Radebe, was a union shop steward and party to the retrenchment consultations which he held with his staff prior to the implementation of the programme. She also suffered from ill health, resulting in frequent absenteeism from her workplace to obtain medical treatment and precluding her from functions within his company other than the operation of pressing or ironing machines. She had agreed, when the question of retrenchment arose, to the termination of her services and it was arranged that she would work until the end of July 2000. In the result the termination of the hospital laundry contract was deferred for one month and she worked until the end of August at which time she requested, and was paid, her salary, leave pay and severance and provident fund benefits.

6. It was not true Mr Bhana continued, that the retrenchments in question had been effected without consultation. Notice of cancellation of the hospital contract had been received by him towards the end of June 2000 and he immediately addressed a circular to his staff members recording that fact and the result, that the retrenchment of certain staff would be unavoidable and that those remaining would be compelled in the circumstances to work short time, either on the basis of a shorter working week of shorter daily hours. Alternatives would be sought and, the memorandum continued “any suggestions from members and staff and shop stewards will be most welcome for consultation purposes, even though management’s hands are tied”. Management, it was stated, “shall endeavour by all means to be as fair as possible. Although LIFO (“last-in-first-out”) is the most fair and objective criterion to utilise, this may not assist fully with unfortunate selection, in that certain skills may be needed by those with less service”.

7. Comprehensive consultations were held in that context and in the company of his labour consultant, on 22^nd June and 13 July 2000. In the course of the first of those meetings the staff were informed that six members of staff principally involved in the Glynwood contract work, would need to be retrenched. These comprised the two Applicants who, it was recorded, were in ill-health and adversely affected by steam and dust, an employee named Driver and another employee who was pregnant. Driver and the Second Applicant were requested to inform the union regarding the impending retrenchment on the basis that the union might wish to enter into discussions on the issue.

8. In the second meeting he was able to inform the employees that an extension of the Glynwood Hospital contract for one month had been procured. It was no longer possible for the First Applicant to work until the end of the year as had originally been contemplated but in any event her illness precluded this. The Second Applicant was in the same position. This was regretted as she and Driver had often assisted in discussions and with representation in disciplinary enquiries. The Second Applicant was once again requested to ensure that the union communicate with him, should they wish to do so.

9. He heard nothing from the union however, Mr Bhana concluded. The limited opportunities for alternative employment within the company for the employees to be retrenched were emphasised by the loss of a major contract and in the end result, five personnel and two casual labourers were retrenched. These included the two Applicants, selected as he had stated, for health reasons, a foreman, an employee who was in any event about to go on maternity leave and the employee, Driver, who was due for retirement.

10. As far as he was concerned, said Mr Bhana, he had endeavoured to comply as far as practicably possible in the circumstances with the equity requirements of Section 189 of the Labour Relations Act and the eventual selection for, and the procedures applied, in the retrenchment exercise, had been fair in all respects.

11. The Second Applicant, in her testimony, stated that, “on a certain day” – she could not give the date, Mr Bhana had called a meeting of all staff and informed them that the Glynwood Hospital was to relocate, its laundry contract was to be cancelled and it had accordingly become necessary for him to retrench staff. He did not indicate who was to be laid off but stated that there would be six or more persons affected.

12. “After a few weeks”, she said, Mr Bhana called her and the First Applicant to his office and informed them that he would now be proceeding with their retrenchment. They were handed letters indicating that their services would terminate at the end of July. They were unhappy at this development, she said, denying that she had ever agreed to be retrenched because of ill-health. She was never given any opportunity to suggest alternatives or to discuss the selection criteria and no proof was exhibited to them of the cancellation of the hospital contract.

13. Her illness, she said, had not caused any concern as far as she was aware. There was only one department in the company which was unsuitable because she had kidney problems and the temperature was too warm. On receipt of a doctor’s report to that effect Mr Bhana had moved her to another area where however she developed tonsil problems. She produced a doctor’s certificate and he then moved her back to the original area. There were however, she said other areas in which she could have worked. She did not identify them.

14. She was, said the Second Applicant, a shop steward and believed they were being unfairly treated. She reported this to the union and a union representative came to one meeting with her employer. She expected the union to intervene at that stage but nothing further developed in that regard.

15. The First Respondent could add little in her testimony to the evidence of the Second Respondent. She did not at any stage agree to be retrenched, she said and at the time of their dismissal there were casual employees working in the business. There had been no consultation at which alternatives had been discussed and they had never been requested to involve the union. She had produced a doctor’s certificates regarding her state of health, which precluded her working in certain areas, and requested to be moved to others. This request was ignored by Mr Bhana notwithstanding that there were other places within the business where she could work. These were not identified by her.

16. The last witness called by Mr G Mangani, the union official representing the Applicants, was the employee Driver Magatlane. He too, he testified, was a shop steward and had been in the employ of the Respondent until March 2001. At the time of the Applicants’ dismissal there were casuals employed and they were also there until March 2001. He had never been requested by Mr Bhana to inform the union about the retrenchments and had not done so himself. There were no consultations in which he had been involved and he had not been shown any proof of cancellation of the Glynwood Hospital contract.

17. Questioned by Mr Bhana he denied having been involved in two consultation meetings, notwithstanding that the minutes were presented to him. He repudiated these because he had not signed them. He did not seriously dispute Mr Bhana’s submission to him that the casual employees to whom he had referred were only employed in the laundry or dry cleaning sections over weekends and that that had been necessary because one permanent employee had left and another had died.

18. He had not seen the notice of the 28^th June distributed to employees by Mr Bhana, he said.

19. The determination of this dispute, in my view, is severely hampered by the unsatisfactory and inadequate testimony of the witnesses on each side. Some degree of explanation for this state of affairs might be that, in the absence of legal representation, the employer, Mr Bhana, represented himself and the Applicants were represented by a union official who, with due respect, lacked a degree of familiarity with the nuances of examination and cross-examination.

20. The disputes of fact which emerged in the course of the hearing are apparent and can only be resolved on a balance of probabilities, assessed on the conspectus of the evidence presented. It seems to me, in that context, that Mr Bhana’s version of the events preceding the retrenchment was the more compelling, and indeed certain material aspects of his testimony were not disputed or challenged – for example the apparent willing acceptance by the Applicants of their remunerative benefits at the time that they ceased working.

21. The extent to which the requirements of Section 189 of the Act were satisfied in the exercise, is a moot point but regard must be had in that context to the comments of this court in Sikhosana and Others v Sasol Synthetic Fuels (2000) 21ILJ 649, at page 655

“A court determining the fairness of retrenchment must consider, in addition to the matters for which the section provides, whether the employer really needed to retrench, what steps it took to avoid retrenchment, and whether fair criteria were employed in deciding whom to retrenchment. Compliance with Section 189, in short, is nether a necessary nor a sufficient condition for the fairness or unfairness of the applicable act of retrenchment. The section gives content and colour to fairness in retrenchment and its significance as such should not be underrated; but ultimately it provides only a guide for the purpose, and cannot be treated as a set or rules that conclusively disposes of the issue of the fairness”.

22. An objective assessment, from that platform, of the testimony adduced in this matter, does not persuade me that the Applicants have established, on a balance of probability having regard to the factual aspects in dispute, either the substantive or procedural unfairness for which they contend. I reiterate that the vague and sometimes confused evidence presented by them, and to some extent by Mr Bhana, hampers a precise judicial analysis thereof, but in the end result, my finding is that their case has not been proved.

23. This does not seem to me however to be a matter in which the conventional principle that an award of costs will ordinarily follow the result, is appropriate and the order which I accordingly make is the following:

    1. The application is dismissed;

    2. There is no order as to costs

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B M JAMMY

Acting Judge of the Labour Court

29 November 2001

Representation:

For the Applicants:

Mr G Magani: Union Official

For the Respondent

In person

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