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IN THE LABOUR COURT OF SOUTH AFRICA

(HELD IN JOHANNESBURG)

Case number: JS415/05

In the matter between:

THEKISO, JOSEPHINE Applicant

And

IBM SOUTH AFRICA (PTY) LTD Respondent

______________________________________________________________

JUDGMENT

______________________________________________________________

Freund A.J.:

INTRODUCTION

1. The Applicant, a black woman, was employed as an asset administrator by the Respondent in its asset management division. That division rendered services to a few key clients of the Respondent. When the contract with one of those key clients came to an end, the Respondent formed the view that this rendered the Applicant’s post – and those of several of her colleagues – redundant. The Applicant and the other affected employees were invited to apply for a more complex, asset administrator post. A white man, one Mr B van der Merwe, was selected by the Respondent to fill the post. The Applicant was retrenched. The fundamental question to be determined is whether her dismissal was unfair. A feature of this case is the Applicant’s contention that the Respondent’s failure to consider certain requirements imposed by the Employment Equity Act No 55 of 1998 (as amended) (“the EEA”), when making the aforementioned decision, rendered her dismissal unfair.

THE EVIDENCE

2. The Respondent called two witnesses, Mr S McLean and Ms N Bispath. The Applicant did not testify and called no witnesses. The case therefore falls to be decided on the basis of the evidence led by the Respondent. As Ms Bispath’s evidence related only to certain very limited issues, the case turns fundamentally on the evidence of Mr McLean.

3. Mr McLean testified that the Respondent’s asset management division forms part of its integrated delivery centre. The task of the asset management division is to maintain and to keep up to date clients’ data bases in respect of computer assets (such as servers, desktop computers, etc). From approximately August 2004, Mr McLean was the service operations manager of that centre.

4. The asset management team had, in the period preceding the relevant retrenchment exercise, only three clients, with the overwhelming majority of its work coming from Anglo Gold Ashanti Limited (“Anglo Gold”) and the City of Johannesburg (“the CoJ”).

5. In or about October 2004, Anglo Gold announced that it did not intend to renew the Respondent’s contract with it that was due to expire at the end of February 2005. This work was to be taken over by BCX Business Connection Limited (“BCX”). 87 of the Respondent’s employees (most of whom were not employed in the asset management division) spent the majority of their time working on the Respondent’s Anglo Gold contract.

6. Mr McLean explained that, for budgetary purposes, part of the time of the six employees in the asset management division was expected to be time which could not be charged for, and that taking this into account, he had 5.67 “persons” available to perform the chargeable work of the division. Of this, the time of 3.4 “persons” was budgeted solely to perform work for Anglo Gold and 2.27 “persons” to perform work solely for the CoJ.

7. Mr McLean referred to a schedule setting out the average percentage of employees’ hours rendered on the Anglo Gold contract. On average over the period January to August 2004 the figures were as follows:

T.A. Botha: 48%

J.Z. Helberg:   1%

H.F. Lang: 41%

M. Petronio 72%
B van der Merwe 46%

The Applicant: 36%

8. The Respondent and BCX entered into an arrangement in terms of which BCX would interview and consider employing staff of the Respondent who had previously spent more than 50% of their time on the Anglo Gold account. This ultimately resulted in 80 or so employees becoming employed by BCX.

9. Thereafter, the Respondent formed the view that it might need to effect retrenchments. Its initial view was that all those employees who spent more than 50% of their time on the Anglo Gold account should be informed that retrenchments were likely and that consultations should be conducted with them in terms of Section 189 of the Labour Relations Act No 66 of 1995 (“the LRA”).

10. However, Mr McLean formed the view that this was not an appropriate approach to apply within the asset management division. The loss of the Anglo Gold contract would imply a loss of the majority of the work performed within that division. If he were to apply as the selection criterion those employees who spent more than 50% of their time on the Anglo Gold account, only one person would be affected. He would not have work sufficient for the remaining five people. He formed the view that the division only needed to retain two employees. First, it should retain one Mr Petronio, who had, since before August 2004, been assigned out of the asset management team and had been working as part of a separately managed and separately funded “configuration and asset management project”. This was a technical task requiring information technology skills which the other five asset managers did not have. (In terms of a pre-trial minute, it is common cause that this position is “a highly technical position for which the Applicant was not qualified”.) Second, he was of the view that a new “asset administrator” position should be created, which required greater technical skills than had previously been required and which was linked to the new work method proposed by the “asset and configuration” project. The asset manager concerned would essentially service the CoJ. His view was that the employee whose skills best matched the skills required for this new position should be selected for the position.

11. On the morning of 30 November 2004, a letter was furnished to five of the six employees in the asset management division (but not to Mr Petronio). The letter referred to the loss of the Anglo Gold outsourcing agreement and the fact that this work was due to be taken over by BCX. It stated that the Respondent regretted to advise that retrenchments might be necessary. It stated that, before making any decisions with regards to any potential retrenchments, the Respondent wished to consult with the employees “in an attempt to reach consensus on the following:

1. possible ways and appropriate measures:

   1. to avoid the potential retrenchments;

   2. to minimise the potential retrenchments;

   3. to change the timing of the potential retrenchments;

   4. to alleviate or lessen the adverse effects of the potential retrenchments.

2. Selection criteria; and

3. Severance package.”

The letter then set out information in relation to the issues listed in Section 189(3) of the LRA. Under the heading “Proposed Selection Criteria”, the letter stated:

“In view of the fact that the outsourcing agreement between the Company and Anglo Gold is coming to an end at the end of February 2005, the demand for staff required to support the remaining Outsourcing Contracts is less than the current composition. The Company proposes to use as selection criteria all those permanent employees who made up the Asset Management team at the time of notice by Anglo Gold that they wished to discontinue services with IBM. As there will still be a need for the Asset Management support function, selection criteria (for the reduced head count requirements) will be based on the required skill set going forward.”

The letter concluded by informing the recipients that the Respondent wished to meet with them “in order to consult with you and to give you an opportunity to make representations on any aspects of this letter”. It continued “Please be assured that the company will in good faith keep an open mind throughout the consultation process and seriously consider any proposals put forward by you.”

12. The Section 189(3) letters were handed to four of the five affected employees at a meeting held with them by Mr McLean and his manager, Ms. Amelia Basson. Mr McLean testified that Ms. Basson explained that as a result of the loss of the Anglo Gold contract, the Respondent unfortunately needed to initiate a consultation process in respect of possible retrenchments. She explained, however, that this did not necessarily mean that the employees present would be retrenched.

13. In the course of the same day Mr McLean met with the Applicant for a consultation meeting. Mr McLean went into that meeting with an agenda of items that he intended to discuss (which was not handed to the Applicant). The items which he intended to discuss were the items on which Section 189(2) of the LRA requires consultation.

14. Mr McLean testified that at the outset of the meeting, he told the Applicant that the meeting was part of a process required by the LRA and that a final decision would only be taken once the process was complete. He told her that that meeting and any further meetings were intended to be a meaningful, joint consensus seeking process in order to reach consensus on certain issues which he then referred to. Those issues were the issues referred to in items “A”, “B” and “C” of a minute which Mr McLean subsequently prepared, the accuracy of which Mr McLean confirmed in his evidence. The items listed in item “A” are the various items referred to in Section 189(2)(a) of the LRA. Item “B” pertains to selection criteria (as contemplated in Section 189(2)(b)). Item “C” relates to the severance package, the issue contemplated in Section 189(2)(c). In other words, according to Mr McLean, the Applicant was informed by him that he wished to consult with her on all the issues on which consultation is required in terms of Section 189(2).

15. In relation to the issue of selection criteria the minutes show, and this was confirmed by Mr McLean in his evidence, that the Applicant was informed as follows:

“- As a result of the outsourcing agreement between IBM and Anglo Gold coming to an end at the end of February 2005, the Company for operational reasons used as the selection criteria all those permanent employees who made up the Asset Management team at the time of notice by Anglo Gold that they wished to discontinue services with IBM.

- As there will still be a need for the Asset Management support function, selection criteria (for the reduced head count requirements) will be based on the required skill set going forward.”

16. Mr McLean testified that he explained these selection criteria and the fact that the Respondent believed that these were necessary having regard to the way that the asset management team had operated. He had no recollection that she responded and testified that she did not indicate disagreement with these selection criteria. The minutes reflect, in respect of this item, the following:

“Josephine [i.e. the Applicant] happy with the explanation given. No question raised. CLOSED”

17. Mr McLean referred to the severance package which would be payable and testified that the Applicant had raised no questions and had been happy with the explanation given. This matter too was considered “Closed”.

18. Mr McLean testified that most of the discussion which took place related to the question of alternatives to retrenchment. He had encouraged the Applicant to make use of the “best person for the job tool”, which - translated from the language employed by IBM employees - means that he had encouraged her to apply for available positions within the Respondent. The Applicant had indicated that she was most interested in finding an alternative position in the field of human resources and Mr McLean undertook to investigate this possibility within the Respondent. The Applicant also undertook to make investigations in this regard, both within the Respondent and externally. The Applicant was also invited to think about alternative suggestions that she might wish to put forward to a committee established by the Respondent dealing with the problems of employees formally utilised for the Anglo Gold contract.

19. According to Mr McLean, other than the discussion which took place in respect of possible alternative positions, the Applicant had been happy with the explanation given by him in respect of the issues he had raised, had asked no questions and had made no counter-proposals. He therefore considered these issues “Closed” and focused after this meeting on the discussion around alternatives.

20. All five of the existing asset managers, including the Applicant, were invited to apply for the new asset manager position. Four of them applied, including the Applicant. They were all invited to assess their own abilities against the published skills required (i.e. to state in respect of each listed skill whether they rated themselves as a “zero” (no skill), “one” (skill acquired without practice), “two” (skill acquired and applied), or “three” (skill mastered)). They were also interviewed by Mr McLean. Ultimately he selected as the person best qualified for the job, Mr B. van der Merwe, a white male. He said that he selected Mr van der Merwe essentially because Mr van der Merwe’s self assessed scores were the highest and, having regard to his knowledge of the various applicants, he thought that the self assessed scores were not out of line with his own assessments.

21. It was part of the Applicant’s case, at the commencement of the trial and at the time that Mr McLean gave his evidence in chief, that the Applicant was directly discriminated against on grounds of race and gender when she was selected for retrenchment. In his evidence in chief, Mr McLean denied that the Applicant’s race or gender had been taken into account. He testified that neither race nor gender were regarded as a relevant consideration.

22. Mr McLean testified that, in addition to the meeting of 30 November 2004, he had consultation meetings once or twice a week for many weeks with each of the affected employees in the asset management division, including the Applicant. Many of these meetings were informal and none were formally minuted but he had kept notes of some of the meetings with the Applicant. Those notes pertain to a number of discussions with the Applicant during December 2004 and relate essentially to the question of progress in the search for alternative positions for the Applicant. The notes show that on 19 January 2005 Mr McLean informed the Applicant that her retrenchment would take effect on the 4^th of March 2005. By that time the Applicant had applied for two positions (business process consultant and change consultant) and it was not clear whether the Applicant might be appointed to one of those positions. He said that it later transpired that the requisite approval for the creations of the posts could not be obtained and no one was appointed to the posts.

23. On 1 February 2005, the Respondent addressed a letter to the Applicant referring to the consultation which had taken place and formally notifying her that she would be retrenched with effect from 4 March 2005.

24. Thereafter Mr McLean had requested the Applicant to fill in or sign a standard batch of retrenchment related documents, one of which was headed “Undertaking”. That document confirmed that the Respondent had consulted with the Applicant in accordance with the provisions of Section 189 of the LRA; confirmed the terms upon which she was to be retrenched and recorded that the payments to be made to her were “…full and final settlement of all and any claims that I have or may have against IBM, its directors, employees, holding and subsidiary companies whether arising in contract, delict, statute or otherwise”. Mr McLean testified that the Applicant approached him in respect of this document and asked what its effect would be if she signed it and a position later became available for her within the Respondent. She asked for an assurance that it would not preclude her from obtaining such a position. Mr McLean gave the requested assurance and confirmed this by e-mail. After receipt thereof she had signed the “undertaking” document. She did so on 18 February 2005 before Mr McLean also signed the document. (The document purports, clearly erroneously, to have been signed on 4 April 2005, a date after the Applicant had left the Respondent’s employ.) The Respondent did not contend during argument that, by signing the document, the Applicant waived her claim against it and I am therefore not called upon to determine this question.

25. Mr McLean testified that, in accordance with the notice given to her, the Applicant’s employment terminated on 4 March 2005.

26. Mr McLean was subjected to a lengthy cross-examination which, in my view, did not shake his evidence in respect of the points set out above. However, the following further points emerged during cross-examination.

27. Mr McLean admitted that, shortly after he took over the asset management division, he had removed the Applicant from the position she had previously occupied as team leader. He said he did this because he did not believe that that function was required at all. All the staff reported directly to him and fully understood their functions and there was no need for a team leader.

28. It was put to Mr McLean that it was inappropriate for him to have consulted with the Applicant on the very day that she had received the Section 189(3) letter. Mr McLean disagreed and stated that the Applicant had not objected or asked for more time.

29. Mr McLean accepted that he had chosen the selection criteria which were applied. He said that he had explained these criteria in the consultation meeting with the Applicant on 30 November 2004. It was put to him that he had not tried to reach consensus on this issue, and he agreed. He also admitted that he had not asked for other suggestions regarding the selection criteria to be applied. It should, in my view, be borne in mind, however, that he also testified that the Applicant had not objected to the intended selection criteria which he had disclosed to her. I also think it relevant that he testified that his purpose in raising the issues which he raised with the Applicant was that he “wanted to initiate the process”.

30. As regards the application of selection criteria, it was put to him that if the original selection criteria considered (employees who spend 50% or more of their working time on the Anglo Gold account) had been applied, the only employee who would have been retrenched was Mr Petronio. It was also put to him that he had changed the selection criteria in order to allow him to retain Mr Petronio and Mr van der Merwe. He disputed this.

31. Mr McLean accepted that the Applicant, Mr van der Merwe and Mr Petronio were all grade 7 employees (a relatively senior grading). He accepted that the Applicant had been the team leader but he disputed that this detracted from the validity of his decision to select Mr van der Merwe rather than the Applicant for the asset manager position. He disputed that he had any inappropriate motive in removing the Applicant from the position of team leader in August 2004.

32. Mr McLean also elaborated during cross-examination on the process which led to his decision to select Mr van der Merwe and not the other applicants for the position. He said that they had all been requested to rate themselves in respect of the advertised requirements for the position. He then sat with each of them and went through their self-assessment forms. Asked if he had simply accepted the employees’ own assessments of their skills, he said that he had, but he made the point that he had worked with them in the past and that, in his view, there was “nothing glaringly wrong” in their self-assessment scores. It was then put to him that he had made a “subjective decision” and he said that his decision had been “subjective” in that he had concurred with their self-assessments.

33. During the course of Mr McLean’s cross-examination, the Applicant applied to amend her statement of claim and I permitted this amendment. The Applicant abandoned her contention that she had been directly discriminated against on the grounds of race and gender and introduced an allegation that the Respondent had failed to consider certain requirements of the EEA when determining parties for retrenchment or redeployment. When questioned on this issue, Mr McLean admitted that, at the time of the retrenchment consultations and the interview for the asset manager position, he had not been aware of the affirmative action obligations created by the EEA and that he had therefore not given any consideration to those provisions. He asserted, however, that the Respondent did have a policy to address the issue of diversity but he was unfamiliar with its details and suggested that they should be raised with a different witness.

34. In cross-examination, Mr McLean was also asked about one Mr PJ Grobbelaar, and it emerged that, by the time the retrenchment of the Applicant took effect, the Respondent had become the employer of Mr Grobbelaar, who was also an asset manager. He became an employee of the Respondent as a consequence of the Respondent acquiring an outsourcing contract with Dow Chemicals. Mr Grobbelaar was transferred from Dow Chemicals to the Respondent and worked exclusively on the Dow Chemicals contract, based at Sasolburg. According to Mr McLean, Mr Grobbelaar was not in the employ of the Respondent on 30 November 2004 when the retrenchment consultations commenced but was employed by the Respondent by January or February 2005, ie before the termination of the Applicant’s employment took effect. Being based in Sasolburg he was not regarded by Mr McLean as part of the asset management division at the time of the retrenchment. According to Mr McLean, the manner in which Mr Grobbelaar did his work was quite different from the way the others, who used the Respondent’s standard tools, worked. It was much more “hands on”.

35. The evidence of Ms Bispath pertained to the small role that she had played in passing on the Applicant’s CV to the managers who were considering making appointments to two other positions for which the Applicant had expressed interest. These were a change management consulting position and a BEE administrative post. In respect of the change management position, the Applicant had not been selected because her CV showed that she lacked the required skills. In any event, a hiring freeze had shortly thereafter been imposed, and no-one had been appointed to the position. The BEE assistant’s position was never created because the requisite “regional” approval could not be obtained.

WAS THERE ADEQUATE CONSULTATION?

36. Mr Riley, who appeared on behalf of the Applicant, submitted that on Mr McLean’s own version, the Respondent failed to discharge its consultation obligations, as required by Section 189(2) of the LRA. He submitted that the discussions which took place at the meeting on 30 November 2004 were inadequate and that, in any event, it had been unfair to expect the Applicant to consult on the very day on which she had been notified that the Respondent was contemplating her retrenchment. Although Mr Riley did not confine his criticism to the consultation in respect of the issue of selection criteria, this was the principal focus of his argument. Mr Ngcukaitobi, who appeared on behalf of the Respondent, submitted that the Respondent had discharged its consultation obligations.

37. Before dealing with the meeting which took place on 30 November 2004, it is, in my view, appropriate to draw attention to the Section 189(3) letter handed to the Applicant earlier that day. The Applicant is a university graduate, who would have had little difficulty in understanding what was set out in the letter and the potential implications thereof for her. Furthermore, the content of the letter was also conveyed orally to the Applicant, and the others in her position, by Ms Basson (in the presence of Mr McLean). The letter set out the Respondent’s views on all the relevant issues pertaining to the Applicant’s possible retrenchment and made clear that the Applicant was invited to make whatever representations she wished to make on any aspects.

38. I do not think that it was unfair for Mr McLean to convene what was intended to be a first consultation meeting with the Applicant on the day that she received the letter informing her that she might be retrenched. There is no evidence to suggest that the Applicant objected to the timing of this meeting or contended that she had been prejudiced thereby. She did not testify before me and therefore did not allege any prejudice in this respect. In my view, Kotze v Rebel Discount Liquor Group, [2000] 2 BLLR 138 (LAC), relied upon by Mr Riley, is distinguishable. It is true that in that case, Mogoeng, AJA, stated as follows:

“Implicit in the requirement of a fair opportunity to make meaningful proposals is the duty to give employees reasonable notice of the proposed retrenchment. Such notice must allow them time and space to absorb the shock brought about by the daunting prospect of losing their jobs. As a general proposition, no employee can reasonably be expected to constructively and effectively engage the employer on such a serious matter from the very minute the bad news is broken to him or her. He or she must be afforded the opportunity to come to terms with the situation, to reflect on the matter, to seek advice and prepare for consultation and only then can a fair and genuine consultation begin. What constitutes such reasonable time would depend on the circumstances of each case.”

If the meeting which was held on 30 November were to be the only opportunity to be given to the Applicant for the purpose of consultation, I would have little hesitation in concluding – consistently with the views quoted above - that this would be unfair. But, unlike in the Kotze case, that is not what happened in the present case. In the present case, the Applicant was informed, both in the letter and at the meeting on 30 November, that no decision had yet been taken and that the Respondent would keep an open mind throughout the consultation process. She was told that the meeting of 30 November was intended to be the first of several meetings and, in fact, several further discussions took place between the Applicant and Mr McLean pertaining to her contemplated retrenchment. It must have been obvious to the Applicant that it was open to her to raise, at any time before the retrenchment decision was taken, any issues which she wished to raise. As regards the issue of alternative job opportunities, she explored this issue in quite some detail in consultation with the Respondent. On the other issues, she made no representations. Her silence in this regard is, in my view, indicative that she had no other representations to make. In my view, she was not prejudiced by the fact that the first consultation meeting took place on the day that she was informed that she risked dismissal. The timing of this meeting did not, in my view, render the dismissal (which finally took place several months later) unfair.

39. As referred to above, the prime criticism on the adequacy of the consultation which took place on 30 November was the manner in which the proposed selection criteria were dealt with. Whilst I accept that the consultation which took place on this issue was brief, I do not think that it was insufficient. The Respondent had informed the Applicant in writing as to the criteria that it proposed to apply. Essentially, these were that all the asset managers were regarded as redundant. They were free to apply for the new asset manager position which would be created and for which the selection criteria would be based on “the required skills set”. The Applicant was told that this issue was one of the issues on which Mr McLean wished to consult with her. She had nothing to say on the issue. Mr McLean inferred from this, in my view quite reasonably, that the Applicant had no objection to the proposed selection criteria. He therefore regarded this aspect as resolved. Whilst it is true that Mr McLean’s minute of the meeting (which he did not give to the Applicant) recorded the selection criteria issue as “closed”, nothing precluded the Applicant from raising any concerns which she might have had regarding the selection criteria at any time up to the time when she was given notice to terminate her employment. She did not do so. In my view, the inescapable conclusion is that she had no proposals which she wished the Respondent to consider in relation to the issue of selection criteria. She acquiesced in the Respondent’s proposed selection criteria and, in effect, agreed thereto. (The same conclusion must, in my view, be reached in respect of all the other issues raised by Mr McLean at the meeting on 30 November 2004 to which the Applicant raised no objection at that meeting or thereafter.)

40. Mr Riley also submitted that consultation with the Applicant ought to have commenced well before 30 November 2004 because, so he argued, the Respondent must have “contemplated” retrenchments by October 2004, when it learnt of the loss of the Anglo Gold contract. This issue was not pleaded by the Applicant and was therefore not squarely addressed in the evidence led on behalf of the Respondent. In any event, on the evidence before me, I am satisfied that there is no merit in the point. In NEHAWU & Others v University of Pretoria [2006] 5 BLLR 437 (LAC), Zondo JP stated as follows (in para [51]}:

“The obligation placed upon the employer to consult only arises in terms of Section 189(1) of the Act when a situation has been reached where he “contemplates dismissing one or more employees” for operational requirements. In other words, before he reaches such stage, he is under no obligation to consult and is within his rights to try and deal with the problem on his own, with such assistance and advice as he may in this discretion feel he needs, which need not be that of consulting parties envisaged in Section 189(1). This is because the employer is entitled to deal with the problems of his business without consulting the parties envisaged in Section 189(1) as long as he is not contemplating the dismissal of any employees for operational requirements.”

As I understand the facts, it was only after BCX had decided which employees it wished to employ that the Respondent squarely considered the question of the need to retrench. This took place shortly before the consultation process commenced.

THE AFFIRMATIVE ACTION ISSUE

41. Although the Applicant pleaded reliance on other subsections of the EEA, in argument, Mr Riley ultimately relied only on Section 15(2)(d)(ii). His contention was that, when determining whether or not the Applicant should be retrenched rather than Mr van der Merwe (who was selected for appointment to the new asset management position), the Respondent was obliged to consider the requirements of this section. This obligation existed, he submitted, whether or not the issue of affirmative action was raised by the employee in the course of retrenchment consultations. (It is common cause that the Applicant did not raise the issue in the consultation process.)

42. Section 15 of the EEA must be read together with Section 13(1) thereof, which imposes on every designated employer the obligation to implement affirmative action measures for people from designated groups. Section 15(1) provides that affirmative action measures are:

“measures designed to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels in the workforce of a designated employer. “

This is the setting in which Section 15(2)(d), the provision relied upon by the Applicant, appears. That provision provides as follows:

“(2) Affirmative action measures implemented by a designated employer must include –

4. subject to subsection (3), measures to –

(i) ..…

(ii) retain and develop people from designated groups and to implement appropriate training measures, including measures in terms of an Act of Parliament providing for skills development.” (my emphasis)

43. Mr Riley submitted that, if the Respondent was intent upon retrenching employees in the asset management division, Section 15(2)(d)(ii) obliged it to retain the Applicant (a black woman) in preference to any white male, provided she was “suitably qualified” for the available position. I understood him to rely on Section 20(3) in this regard, which provides that a person may be suitably qualified for a job inter alia if she has the “capacity to acquire, within a reasonable time, the ability to do the job”. In other words, I understood it to be Mr Riley’s contention that if the Applicant had the capacity, within a reasonable time, to acquire the ability to do the new asset management job, the Respondent was obliged to select her for that position in preference to a white man such as Mr van der Merwe. Mr Riley made clear, however, that inasmuch as his client’s complaint before me was that her dismissal was unfair in terms of the LRA, he confined his argument for present purposes to a submission that the Respondent had been obliged to consider its obligations under Section 15(2)(d)(ii) when making the relevant decision. He submitted that this obligation to consider arose in terms of Section 189(2)(d) of the LRA (which requires consultation on the method for selecting the employees to be dismissed), Section 189(2)(a)(i) (which requires consultation on appropriate measures to avoid the dismissals), Section 189(3)(b) (which requires disclosure of the alternatives that the employer considered before proposing the dismissals, and the reasons for rejecting each of those alternatives) and Section 189(3)(d) (which requires disclosure of the proposed method for selecting which employees to dismiss).

44. In my view, the argument advanced by Mr Riley as to the meaning and effect of Section 15(2)(d)(ii) of the EEA is incompatible with the judgment of this court in Dudley v City of Cape Town (2004) 25 ILJ 305 (LC). In that case, Tip AJ held that the provisions of chapter III of the EEA on which Mr Riley relies do “not bring about an individual right to affirmative action” (at para [76]). The learned Judge went on (at para [78]) to accept the following “key contentions” raised by the employer in the case before him:

“…. namely that the EEA does not establish an independent individual right to affirmative action and also that there is no right of direct access to the Labour Court in respect of any such claim.”

The following portion of the head-note to the report of the decision in the Industrial Court Journal (at 306 G) also conveniently summarises an important finding by the learned Judge:

“By contrast, the structure of chapter III is such that, by definition, it is intended to and can be brought into operation only within a collective environment. This is inherent in the nature of the duties of an employer outlined in Section 13(2). These are consultation, analysis, preparation of the employment equity plan and reports to the Director-General on progress in the implementation of the plan. …… It is very clear from a survey of the provisions of chapter III that its essential nature is programmatic and systematic. Importantly, its methodology is uncompromisingly collective.”

45. Mr Riley submitted that Dudley was wrongly decided and that I should decline to follow it. I do not accept that there is any basis upon which I could conclude that the decision in Dudley was clearly erroneous and I therefore regard myself as bound by it. I note in this regard that Dudley was recently followed by this court in Public Servants Association, on behalf of I Karriem v SA Police Services & Another (unreported Case No C435/04).

46. In my view, it is implicit in Dudley that a retrenched employee cannot pursue a complaint before this court in terms of chapter III of the EEA alleging that her retrenchment constitutes a breach by her employer of its affirmative action obligations. Not only does the EEA not provide any mechanism for pursuing such a complaint, but, in my view, on a proper construction thereof, there is no legal obligation on an employer when taking any particular appointment or dismissal decision to give preference to suitably qualified employees from a designated group. In my view, Section 15(2)(d)(ii) does not impose an obligation on an employer contemplating retrenchments to retain black employees in preference to white employees it believes better meets its needs. Whilst chapter III of the EEA (including Section 15(2)(d)(ii)) plainly imposes legal obligations, those obligations are, in the language of Tip AJ, “programmatic and systematic”. They require consultation on, and the implementation of, an employment equity plan but they do not confer legal rights to preferential treatment on individuals in respect of particular appointment or dismissal decisions.

47. If this is correct, I do not see how an employee who has no right to rely directly on the EEA, can nevertheless have a right to rely thereon indirectly by means of an allegation in an unfair dismissal case brought in terms of the LRA that the employer has failed to consider its obligations under the EEA. If an individual employee has no enforceable right under the EEA, it is my view that no failure on the part of the employer to consider it obligations under the EEA can render a dismissal decision unfair. I simply do not accept Mr Riley’s submission that the subsections of Section 189 of the LRA to which he referred (see paragraph Mr Riley submitted that, if the Respondent was intent upon retrenching employees in the asset management division, Section 15(2)(d)(ii) obliged it to retain the Applicant (a black woman) in preference to any white male, provided she was “suitably qualified” for the available position. I understood him to rely on Section 20(3) in this regard, which provides that a person may be suitably qualified for a job inter alia if she has the “capacity to acquire, within a reasonable time, the ability to do the job”. In other words, I understood it to be Mr Riley’s contention that if the Applicant had the capacity, within a reasonable time, to acquire the ability to do the new asset management job, the Respondent was obliged to select her for that position in preference to a white man such as Mr van der Merwe. Mr Riley made clear, however, that inasmuch as his client’s complaint before me was that her dismissal was unfair in terms of the LRA, he confined his argument for present purposes to a submission that the Respondent had been obliged to consider its obligations under Section 15(2)(d)(ii) when making the relevant decision. He submitted that this obligation to consider arose in terms of Section 189(2)(d) of the LRA (which requires consultation on the method for selecting the employees to be dismissed), Section 189(2)(a)(i) (which requires consultation on appropriate measures to avoid the dismissals), Section 189(3)(b) (which requires disclosure of the alternatives that the employer considered before proposing the dismissals, and the reasons for rejecting each of those alternatives) and Section 189(3)(d) (which requires disclosure of the proposed method for selecting which employees to dismiss). above) impliedly impose an obligation on an employer contemplating a possible retrenchment to consider its obligations under the EEA. In essence, those provisions require disclosure of the employer’s views and intentions and consideration by the employer of any views or submissions raised in response thereto by the affected employees. None of them expressly oblige the employer to consider any provisions of the EEA and I do not think that they do so by necessary implication either.

48. I stress that it is common cause in this case that neither the employer nor the employee contended, during the consultation process, that affirmative action considerations should play any role in the retrenchment selection process. I am therefore not called on to consider whether the Respondent would have been entitled, rather than obliged, to take race or gender into account when selecting the employees to be dismissed. Nor am I called upon to consider what the legal position may have been if the Applicant had, in the consultation process, raised the contention that she should be given preference on the basis of her race or gender in the selection process.

49. The Respondent drew my attention to the following statement, in the recent judgment of Revelas J in Robinson & Others v Price Waterhouse Coopers [2006] 5 BLLR 504 (LC) at para [22]:

“Affirmative action is not and never has been legitimate ground for retrenchment.”

This statement was made in the process of rejecting an employer’s argument that a retrenched, white employee had been fairly selected for retrenchment. That is not the situation in the present case. However, if it was the learned Judge’s intention to assert that the EEA does not impose an obligation on an employer who employs both black and white employees to retrench white, rather than black, employees, I respectfully concur with her.

UNFAIR APPLICATION OF SELECTION CRITERION

50. It was submitted on behalf of the Applicant that Mr McLean’s decision to appoint Mr van der Merwe, rather than the Applicant, to the new position was “subjective” and rendered the selection process unfair. I do not agree. The criterion of “required skill set going forward” was, as I have found, acquiesced in and therefore agreed to by the Applicant (see Section 189(7)(a)). Furthermore, the criterion was, in my view, fair and objective (as contemplated in Section 189(7)(b)). Inevitably, a measure of judgment is called for in determining which of two employees best fulfils a “required skill set”. I see no reason to find fault with Mr McLean’s judgment on this issue. Whilst he was considerably influenced by the two employees’ own self-assessments, he knew the employees and regarded their self-assessments as consistent with his own views. Mr van der Merwe’s rating of his own abilities in terms of the required skills considerably exceeded the Applicant’s rating of her own skills. Mr McLean regarded the decision that Mr van der Merwe was the best qualified as a simple one. Whilst I accept that it would be unreasonable and unfair to rely solely on the self-assessments by competing employees, because this would arbitrarily tend to favour the immodest over the modest, I am satisfied that Mr McLean also applied his own judgment and that no evidence before me demonstrates that he acted unfairly in applying the selection criterion and in preferring Mr van der Merwe to the Applicant.

51. Mr Riley drew my attention to the decision of the Industrial Court (in terms of the 1956 Labour Relations Act) in Jones v KPMG Aiken & Peat Management Services (Pty) Limited [1995] 3 BLLR 49 (IC) and submitted, on the basis of this authority, that the decision to prefer Mr van der Merwe to the Applicant for the relevant post was unfair because the Applicant had not been confronted, during the consultation process, with the reasons for regarding Mr van der Merwe’s skills as superior to her own. In my view, decisions by the Industrial Court in terms of the 1956 Labour Relations Act on the application of selection criteria must be treated with caution because the law has, to some extent, been altered by Section 189 of the 1995 Labour Relations Act, in particular by Sections 189(3)(d), Section 189(2)(b) and Section 189(7). Furthermore, I regard it as significant that, in the present case, the “skills” selection criterion was applied not for the purpose of determining which of several employees doing the same job should be selected for retrenchment, but for the purpose of determining which of several redundant employees should be selected for appointment to an alternative post. In the present context I do not think that fairness required that every applicant for the new post had to be confronted with the relative merits and demerits of every other applicant’s application before a decision could be made. So long as the interviewing process was fairly conducted, the Respondent was, in my view, entitled to apply its own judgment as to which applicant was best qualified for the alternative post. The evidence before me did not disclose any unfairness in the interview and selection process.

52. Mr Riley also suggested in argument that the selection of the Applicant for retrenchment, whilst Mr Grobbelaar was not retrenched, rendered the Applicant’s dismissal unfair. My fundamental difficulty with this argument is that it was not pleaded and therefore not fairly and properly ventilated. At the pre-trial conference, the Applicant was asked to state which employees should, in her view, have been selected for retrenchment in her place. She relied only on Mr van der Merwe and Mr Petronio in this regard. When Mr Riley raised the issue of Mr Grobbelaar during the cross-examination of Mr McLean, I asked him whether it was the Applicant’s case that Mr Grobbelaar should have been retrenched and the Applicant retained. His response was that Mr Grobbelaar should not have been employed, and it was on this basis that I allowed the cross-examination to proceed. In these circumstances, I consider it unfair to the Respondent for the Applicant at this stage to advance the case that the Respondent acted unfairly in not considering Mr Grobbelaar as a candidate for retrenchment and in not offering Mr Grobbelaar’s position to the Applicant. Furthermore, such evidence as there is in relation to Mr Grobbelaar, does not, in my opinion, go far enough to show that the Applicant’s retrenchment was rendered unfair by virtue of the fact that Mr Grobbelaar was not also retrenched. It appears that Mr Grobbelaar was transferred from Dow Chemicals to the Respondent very shortly before the retrenchments took effect, on the basis that he would work exclusively on the Dow Chemicals contract and would be based at Sasolburg. The Applicant and the other members of the asset management team were all based in Johannesburg. Mr Grobbelaar also apparently performed his function in quite a different manner to that of the other asset administrators, like the Applicant. I do not think that Mr McLean was unreasonable in not regarding Mr Grobbelaar as part of the asset management division at the time that the decision to retrench was taken.

53. Mr Riley also sought to make something of the Respondent’s failure to retrench Mr Petronio. There is, in my view, nothing in this point. As referred to above, it is common cause that the Applicant was not qualified to do the job done both before and after the retrenchment by Mr Petronio.

CONSIDERATION OF ALTERNATIVES TO RETRENCHMENT

54. Mr Riley submitted that the Respondent did not give fair and proper consideration to alternatives to retrenchment. In my view, there is no merit in this point. In the course of his cross-examination of Mr McLean, Mr Riley commented that the Respondent had made “commendable efforts to seek other employment” for the Applicant. I agree. Mr Riley argued, however, that inadequate attention had been given to alternatives such as short time, pay cuts and the like. I cannot agree with this. In the situation in which the Respondent found itself, I do not think that the Respondent was obliged to consider alternatives which quite obviously would not address the problems it faced. Furthermore, there is no evidence to suggest that the Respondent was unwilling to consider any alternatives proposed by the Applicant.

CONCLUSION

55. My conclusion is, therefore, that the dismissal was both substantively and procedurally fair.

56. The parties were in agreement that costs should follow the cause and I agree that this is fair and reasonable.

57. Mr Riley submitted that a special costs order should be made in favour of the Applicant arising from a postponement which I granted during the trial. That postponement followed the belated amendment made by the Applicant and was directly caused by the illness of a witness (Ms Bispath) who the Respondent stated it wished to call to deal inter alia with the issues raised by the amendment. As it turned out, she was not led in evidence on these issues, though she did testify on other issues. I am not persuaded by Mr Riley’s contention that the Respondent acted in bad faith in this regard. In my view, the costs of the postponement should be costs in the cause.

58. I make the following order:

The application is dismissed, with costs.

FREUND, AJ

DATE OF HEARING: 15 – 19 May 2006; 2 October 2006

DATE OF JUDGMENT: 18 October 2006

APPEARANCES:

FOR THE APPLICANT: ADV N RILEY

INSTRUCTED BY: ANTHONY HINDS, ATTORNEYS

FOR THE RESPONDENT: MR T NGCUKAITOBI

OF BOWMAN GILFILLAN INC

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