IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
REPORTABLE
   	                                                	   			CASE NO: JS 117/08
In the matter between:       
NOMALUNGELO THOBEKA MOYO	 		APPLICANT
and
KNIGHT WATCH SECURITY 				RESPONDENT                                                               
                                                           JUDGMENT            

molahlehi J
Introduction
[1]	The Applicant Ms Moyo, a former employee and security officer of the Respondent was dismissed for operational reasons on 18th October 2007. Initially the Applicant claimed that the dismissal was both substantively and procedurally unfair but later through her legal representative conceded that the dismissal was substantive fair. 
[2]	The Applicant had also sought reinstatement as a relief but now seeks only the maximum compensation for the alleged procedurally unfair dismissal. 
[3]	Thus the issues for determination concern firstly the procedural fairness or otherwise of the dismissal and compensation in the event that it is found that the dismissal was indeed procedurally unfair as alleged by the Applicant. 
[4]	In the statement of case the Applicant claimed that her dismissal was both substantively and procedurally unfair. The pre-trial minutes requires the Court to determine whether:
(a)	The Respondent had valid reasons to retrench the Applicant.
(b)	The Applicant was one of the poor performing employees.
(c)	The Respondent recruited new employees.
(d)	The Respondent consulted the Applicant on the 18th October 2007.
(e)	The Applicant was consulted by the Respondent and if not whether the Respondent was required to consult her.
Background facts
[5]	The Respondent is a security company providing services in the security sector. Its case in brief is that the retrenchment of the Applicant was due to loss of contracts from three of its major clients. As a result of this a number of positions became redundant resulting in the need to retrench employees. The number of employees who were initially affected and were supposed to have been retrenched were 66 (sixty six) but the number was reduced to 46 (forty six) during the consultation process with the representative union, SATAWU. 
[6]	It would appear that in order to reduce the number of the employees who were affected by the retrenchment SATAWU agreed to poor work performance as selection criteria through which to chose employees who were to be dismissal. It was according to the Respondent this selection criteria that brought down the number of employees who were affected by the retrenchment from 66 (sixty six) to 46 (forty six). Those of the employees who were selected for retrenchment including the Applicant were chosen on the basis of the poor performance record.
[7]	On the 11th October 2007, the Applicant was issued with the letter which reads as follows: 
	“Dear Surprise
	CONTEMPLATE TERMINATION OF SERVICE
The company has lost several sites during the last two months and as a result the management of Knight Watch Security is contemplating terminating your service with the company due to operational requirements.
It should be emphasised that the company has been consulting with SATAWU regarding the loss of sites and the financial impact on the company.
The selection criteria were based on the performance records of employees over a six month period. The records indicated that your attendance records have been extremely poor during this period. This has created several major problems for the company (Loss of contracts) and the financial burden on the company due to your frequent absenteeism has been exceptional high. The company have to bear the costs of a replacement every time that you were absent.
The company is thus unable to provide with continued employment as a result of the above.”
[8]	The letter then went further to set out what the Applicant was entitled to in terms of payment including the issue of re-employment. The letter states in this respect that the re-employment prospects were remote.
[9]	The two shop stewards of SATAWU who testified on behalf of the Respondent confirmed its version concerning both the reason for the retrenchment and consultation process. 
[10]	The first witness Mr Issac Madanya, testified that they were called to a meeting by the Respondent and informed about the problem encountered by the Respondent regarding the loss of security contracts it had and that as result there was a need to retrench 66 (sixty six) employees. In order to reduce the number of employees who would have been affected by the retrenchment, they agreed to the use of poor performance criteria to select those who would be retrenched. According to him when informed about this approach the Applicant indicated that she was not interested because she had her own attorney who would assist her. It was for this reason that they ignored her when they saw her on the 15th October 2007. This version of Mr Madanya was confirmed by the second witness of the Respondent Mr Sibiya, another full time shop-steward of SATAWU. 
[11]	The case of the Applicant is that she was summoned to the workplace on the 17th October 2007 and on arrival the shop-stewards were summoned to an office and it would appear after a short meeting between them and management the Applicant was informed that her employment was terminated. She was then issued with the letter of termination. She further testified that the first time she came to hear about the problems of the Respondent losing contracts was on that day. She also testified that she was told that the reason for dismissal was because of her absenteeism.
[12]	The Applicant went back to the workplace on the 18th October 2007, and according to her, she found a number of people filling in application forms for employment. She testified that she was informed when she enquired from Mr Oxford of the respondent, as to what those people were doing at the workplace that they were applying for employment because there was a shortage of staff.
[13]	As concerning her work performance the Applicant testified that she was good at her work and that she had previously effected arrests of offenders as part of her duties and further that there had never been reports of break-ins in properties that she guarded.
[14]	In relation to her absenteeism the applicant testified that she developed an eye problem at the time she was working in the camera room. She then went to consult with a medical practitioner about her eye problems. It would appear when she went back to work and informed the Respondent about the problem with her eyes, she was told to produce medical certificate. The Applicant further indicated that the other five days for which she was accused of being absent was when she was in the operating room and the Respondent was according to her aware of this. She testified during cross examination that she did hand in to the Respondent her medical certificate which was rejected on the ground that she had exhausted her sick leave days. 
Analysis and arguments
[15]	Although in the statement and also in the pre-trial minute the issue of substantive fairness was raised by the Applicant, her legal representative unwisely, in my view, conceded during his closing argument that the dismissal was substantively fair. This concession in my view limits the issue for determination to the issue of procedural fairness. 
[16]	However, I need to mention in passing that the evidence before me indicates very clearly that the dismissal of the Applicant was substantive unfair. The Respondent did not deny that it employed new employees the very next day after the dismissal of the Applicant but contended that those employees were employed on a casual basis. This means the Respondent dismissed the Applicant when it still had some work available. In King v Doughlasdale Dairy (Pty) Ltd [2009] JOL 23092 (LC) (at page 10), this Court relying on the Labour Appeal Court decision in the case of Andre Johan Oosthuizen v Telkom SA Ltd (2007) 28 ILJ 2531 (LAC) held that:
“An essential consideration when faced with retrenchment in a restructuring exercise is whether there is work available which the affected employee can perform. If there is, then fairness would require the employer to offer such a position to the affected employee. In a case where a position is available but the employee lacks skills to perform in that position, the employer is obliged to consider any additional training that may assist the employee in achieving the level of performance required.”
[17]	If the argument of the Respondent was to be accepted that the only positions which were available were only for casual employees, then fairness would have required that the Applicant and other retrenched employees should have been offered those positions. However, I have already indicated that the Applicant’s attorney conceded that the dismissal was substantively fair and for that reason I will not take this issue any further. 
[18]	In as far as procedural fairness is concerned the Applicant contended that she was not consulted prior to her dismissal. The Respondent on the other hand contended that it consulted with SATAWU on the selection criteria and the Applicant was chosen for retrenchment based on her work attendance record. There is also mention by the Respondent that it did consult with the Applicant at some point.
[19]	Section 189 of the Labour Relations Act 66 of 1995 (the LRA) governs dismissals based on operational requirements of the employer. Section 189(1) of the LRA provides as follows:
	“Dismissals based on operational requirements
	(1)  	When an employer contemplates dismissing one or more employees for reasons based on the employer’s operational requirements, the employer must consult –
		(a)	any person whom the employer is required to consult in terms of a collective agreement;
		(b)	if there is no collective agreement that requires consultation–
			(i)	a workplace forum if the employees likely to be affected by the proposed dismissals are employed in a workplace in respect of which there is a workplace forum; and
			(ii)     	any registered trade union whose members are likely to be affected by the proposed dismissals;
		(c)	if there is no workplace forum in the workplace in which the employees likely to be affected by the proposed dismissals are employed, any registered trade union whose members are likely to be affected by the proposed dismissals; or
		(d)	if there is no such trade union, the employees likely to be affected by the proposed dismissals or their representatives nominated for that purpose.”
[20]	In Maluleke & Others v Johnson Tiles (Pty) Ltd (2008) 29 ILJ 2606 (LC), the Court held that in terms of the hierarchy governing consultation process as set out in s189 (1) (a)–(d) there is no obligation in law for the employer to consult with any other union nor with individual employees when there is a collective agreement relating to retrenchment. In this respect Basson J had this to say: 
“[26]	The court in Mahlinza & others v Zulu Nyala Game Ranch (Pty) Ltd F [2004] JOL 12459 (LC) at 3 confirmed that it is only where there is no collective agreement in existence which regulates consultations in respect of a retrenchment , that the employer is under an obligation to consult with another registered union or individual employees:
“[13] In this regard, section 189(1) of the Labour Relations Act sets out with whom an employer must consult concerning retrenchments. In this matter there is no evidence of a workplace forum in the workplace and the only thing that could excuse the respondent from consulting with SACCAWU, a registered trade union which, to the knowledge of the respondent had members in its workforce, is the existence of a collective agreement requiring the respondent to consult with the other party to the collective agreement about retrenchment. There is not such collective agreement. What the respondent relied upon was the agency shop agreement that it had concluded with NUFACE but that collective agreement imposes no obligation on the respondent to consult NUFACE about retrenchments. 
[14]	For all of the above reasons the respondent was therefore obliged to consult SACTWU or at least the individual applicants about their retrenchment. It did neither and the respondent's whole case falls into a vacuum.” 
[27]	It is therefore concluded that where an employer (and more in particular the respondent in this case) consults, in terms of agreed procedures with the recognized union (BCAWU) in terms of a collective agreement which requires the respondent to consult with it over retrenchment, the employer (in this case the respondent) has no obligation in law to consult with any other union nor with any individual A employee. This is what happened in this case. Furthermore, if the consultations culminate in a collective agreement which agreement complies with the requirements of a collective agreement, non-union members are bound by the terms thereof. This is exactly what happened in this case.” 
[21]	In SACCAWU & another v Amalgamated Retailers (Pty) Ltd [2002] 1 BLLR 95 (LC), the Court held at para 26 that:
“The identification of a consulting party by applying the criteria established in s 189(1) (a), (b) and (c) might confer exclusive rights on the partner with first claim in relation to other potential partners listed in those paragraphs, but it does not relieve the employer of an obligation to consult in terms of subsection (d) with affected employees or their representatives nominated for the purpose if those employees are not represented in some manner or form by a collective bargaining agent, workplace forum or registered trade  union respectively.”
[22]	Although the facts in Amalgamated Retailers were distinguished from those in the Labour Appeal Court case of Oostehuizen v TELKOM SA LTD (2007) 28 ILJ 2531 (LAC), the above was quoted with approval by the Court. In that case the Labour Court found that even though the employer had decided to initiate and conduct a separate consultation with non-union members it had not discharged the onus of establishing that the consultation process complied with the requirements of s 189 of the LRA. The employee in the TELKOM Ltd case was a member of a union whose members were likely to be affected by the proposed dismissals and for that reason the Court found that s 189(1) (c) of the LRA was applicable.
[23]	In the present instance there is no evidence of the existence of a collective agreement regulating consultations in respect of a retrenchment and therefore the Respondent was under an obligation to consult with the Applicant including in respect of the selection criteria. On the Respondent’s version only SATAWU was consulted regarding the selection criteria. The Respondent failed to comply with the requirements of s189 of the LRA in failing to consult with the Applicant regarding the retrenchment and more specifically regarding the selection criteria.
[24]	In the light of the above reasons I find the dismissal of the Applicant to have been procedurally unfair. In the circumstances of this case I am of the view that the Applicant is entitled to compensation equivalent to 9 (nine) months’ salary.
[25]	In the premises the Respondent is ordered to pay the Applicant 9 (months) salary calculated at the salary earned at that the date of her dismissal. The said amount is to be paid within 14 (fourteen) days of date of this order.

_______________
Molahlehi J
Date of Hearing	:	31st October 2008
Date of Judgment	:	29th April 2009
Appearances
For the Applicant	:	Mr Mabaso of Legal Aid Board
For the Respondent:	Mr D Malan (in person)