6.8
If parties were to be free to postpone matters and to arrange dates amongst themselves as and when
they wished without the concurrence of the Judge President, it would interfere with the smooth flow of the hearing of appeals by
this Court. It is the duty not only of this Court, but also of counsel and attorneys to uphold the smooth flow of litigation. This
is so, particularly, if one has regard to the nature of the cases with which this Court deals. If litigants were left to the mercy
of the availability of busy counsel one of the primary objects of the Act, namely the effective determination of cases, would never
be achieved. By the same token, if counsel or attorneys were permitted to set down appeals at their convenience without reference
to the Judge President, chaos would soon reign in this Court. The notion that justice delayed is justice denied is of equal application
in this Court as labour cases (including appeals) can only be resolved effectively if they are resolved expeditiously. Accordingly
we were of the view that there was no valid reason for the postponement and the application was accordingly refused.
THE COSTS OF THE POSTPONEMENT ON 27 JUNE 2000:
6.9
At the hearing on 27 June 2000 Mr. Memani, who was briefed to appear for the appellants, did not
appear. It is common cause that prior to the hearing neither the appellants’ attorney of record nor the respondent’s
counsel and attorney of record were informed that Mr. Memani would not appear at the hearing. Accordingly on the day of the hearing
Mr. Memani’s instructing attorney, who had by chance found out that Mr. Memani would not be appearing at the hearing, was obliged
to apply for a postponement based on Mr. Memani’s, at that time, unexplained absence.
6.10
It is common cause that Mr. Memani at no stage informed his instructing attorney that he would not be
able to argue the appeal on 27 June 2000. Mr. Memani’s explanation for this is that his father passed away on 12 June 2000.
When granting the postponement on 27 June 2000 the Court ordered that Mr. Memani furnish an explanation for his conduct.
6.11
His explanation was the following:
“Firstly I wish to apologise to everyone concerned, including the parties and their legal representatives for any inconvenience which
my absence caused.
As it has already been mentioned my absence was the result of my bereavement. My father passed away on 12 June 2000. On 13 June 2000
I telephoned the Group receptionist and informed her that I would be away and would return only after 24 June 2000, the funeral date.
I asked her to inform anyone who phoned.
I anticipated that attorneys including, Mr. Maribana, would phone and would be informed. They would phone me and I would advise them
that I would not be active for at least a week after the funeral because of psychological and traditional factors relating to mourning
practices.
I have learned with surprise that the Group receptionist did not tell Mr. Maribana of my bereavement when he phoned on 23 June 2000.
The situation was compounded by the fact that I lost my cell phone on 23 June 2000 while I was travelling to the Eastern Cape. As
a result attorneys including Mr. Maribana would not get hold of me over the phone. I only got a replacement phone on 30 June 2000.”
6.12
At the hearing of the appeal he was taxed on his explanation and it was indicated that we were considering
an order directing Mr. Memani to pay the costs of the postponement de bonis propriis.
6.13
Mr. Memani requested an opportunity to have representations made on his behalf. A direction was issued
after the hearing giving Mr. Memani leave to file written submissions by not later than 19 September 2000. Subsequently Mr. Memani
was granted an extension until noon 21 September 2000. He filed his written submissions. These submissions take the matter no further.
They do not detract from the fact that Mr. Memani adopted a passive attitude. Whether any of the parties concerned would become aware
of his unavailability, depended on factors over which Mr. Memani had no control. In addition, the steps that he took were based on
a mere assumption that his instructing attorney might phone his secretary. Mr. Memani did not even inform the secretary in which matters he was due to appear during his absence or who
the instructing attorneys were in each case. The only person who was responsible for the appeal not proceeding on 27 June 2000 was
Mr. Memani. Accordingly the appellants should not be burdened with the costs incurred. This is accordingly an appropriate case for
an order that Mr. Memani pay the costs of the postponement de bonis propriis.
FACTS:
[7] I turn to the merits of the appeal. The background facts which gave rise to the appellants’ retrenchment are set out fully
in the judgment of the Court a quo. I do not believe that it is necessary for me to give more than a brief summary of those facts.
[8] During 1997 the respondent experienced financial difficulties due to various factors that were prevalent in the market place. This
resulted in the respondent having to investigate means whereby it could restructure its business to render it financially viable.
[9] This in turn gave rise to negotiations with the union which commenced during September 1997. During these negotiations the reasons
for the restructuring and the rationalisation of the appellants’ activities were explained in detail. In addition, it was indicated
to the union that the process of rationalisation would result in approximately sixty employees becoming redundant. In order to avoid
retrenchments, early retirement and voluntary retrenchment packages were offered to those employees who were interested.
[10] On 11 November 1997 the respondent issued a notice to all employees in terms whereof the final date by which application for the voluntary
retrenchment packages could be made was again stressed. In addition the notice contained the following warning:
“We regret to inform you that should the required number of employees not take this voluntary package, that we will have no other option
but to go the redundancy route, which will be less than the voluntary package.”
[11] Thirty-six employees took the voluntary retrenchment package when the respondent closed for the Christmas recess.
[12] The respondent reopened on 18 January 1998. On 15 April 1998 the respondent received a report from its auditors from which it became
apparent that it would not be viable for the respondent to continue its operations at the production unit.
[13] During the period 18 January 1998 to 15 April 1998 there were ongoing informal discussions between the respondent and the union.
It is common cause that, pending the auditor’s report, it would not have been possible to conduct formal negotiations as that
would have been a self-defeating process.
[14] Upon receipt of the auditor’s report the respondent immediately scheduled a meeting with the union for 20 April 1998. At this
meeting the union was informed of the anticipated closure of the respondent’s production unit at the end of April 1998. The
critical financial position in which the respondent found itself was outlined.
[15] Subsequent to the meeting the respondent wrote a letter to the union stating, inter alia, the following:
“... for a period of some nine months, we have been sharing information regarding the critical nature of the competitive situation
and the financial situation that the company finds itself in, as well as the need to reduce employees. Part of this process to find
solutions, the company embarked on voluntary retrenchments during 1997. Since this period, as you are aware, the economic situation
has deteriorated necessitating further restructuring.
...
As the financial situation of the company is critical, the closure of Active’s production unit will take place at the end of
April 1998. We are available on a daily basis to meet regarding suggestions or alternatives that you may propose.
The package for the employees affected is two weeks per completed year of service capped at a maximum of 10 years or 20 weeks. In
addition, pro rata leave pay and bonuses will be paid out. In terms of the current legislation R30 000,00 of such retrenchment
will be tax free.
...
Furthermore, we undertake that should any vacancies arise at Kohler Corrugated in Brakpan in the future, first option will be given
to our retrenched Active employees, who possess the necessary skills. Our personnel department will assist affected employees to
find alternative skills and will be available to counsel individuals on an ongoing basis.”
[16] This letter was followed by several meetings at which attempts were made to resolve the dispute between the parties. Various proposals
and counter proposals were put forward including an invitation by the respondent that the union appoint its own financial expert
to verify the financial information which the respondent had made available, and to examine the financial statements once the financial
statements of the Kohler Group had been published. In my view it is not necessary to go into these negotiations in any detail. Suffice
it to say that these negotiations were unsuccessful and the employees were dismissed. On 14 May 1998 the union referred the question
of the fairness of these dismissals to the Commission for Conciliation, Mediation and Arbitration (“CCMA”) on behalf
of sixty-seven of its members. Attempts at conciliation failed and on 30 June 1998 a certificate was issued by the CCMA to the effect
that the matter remained unresolved.
[17] On or about 18 August 1998 the thirty-two appellants resigned from the union. Three days later they referred the dispute to the Labour
Court. The matter came before Jali, A.J. who found that the consultative process had commenced as early as September 1997 and not
on 20 April 1998 as contended by the appellants. He also found that adequate financial information had been made available to the
appellants and that the respondent’s refusal to make available financial statements prior to the publication of the Kohler
Group’s results was in the circumstances justified.
[18] This appeal, in essence, lies against the abovementioned findings.
[19] Mr. Memani, who appeared for the appellants, confined his argument to the following:
19.1
that the consultative process should be divided into two separate stages, the one unrelated to the other.
He argued that the negotiations which took place between September 1997 to December 1997 were separate and distinct from the negotiations
which commenced at the meeting of 20 April 1998. Accordingly he argued that inasmuch as the respondent gave notice on 20 April 1998
that it intended closing its production plant at the end of April 1998, a mere ten days were allowed for consultations. Accordingly
he argued that there had not been adequate compliance with section 189 of the Act.
19.2
that the respondent failed to disclose sufficient information to the union about its financial affairs.
I will deal with these two points under separate headings.
WHEN DID CONSULTATIONS COMMENCE:
[20] In my view Mr. Memani’s submission that the consultative process should be viewed as two separate and distinct processes is
artificial and based on a mistaken understanding of the evidence and of the provisions of section 189 of the Act. The wording of
section 189 makes it plain that the section will take effect as soon as an employer contemplates the dismissal of one or more employees. This, self-evidently, means that the consultative process will begin before the final decision to retrench has been taken. This principle has now become trite.
[21] Applying this principle to the present facts it is in my view clear that the consultative process started in September 1997 when
the respondent first realised that it was facing a financial predicament. This fact is demonstrated in clear and unequivocal terms
by not only the oral evidence which was presented in the Court a quo, and which remained largely unchallenged, but also by the documentation. The correspondence indicates that the meeting of 20 April
1997 was called on the premise that it was part of the ongoing consultative process. It is clear that all attempts to make the respondent
financially viable again and thereby to limit and/or avoid further retrenchments had failed, and that this fact culminated in the
decision to close the production unit with the consequential retrenchment of the appellants.
[22] Mr. Memani’s submission that because “nothing happened” between the reopening of the factory in January 1998 and the meeting on 20 April 1998, and that therefore the employees were
entitled to assume that all was well, flies in the face of the evidence that there were ongoing informal discussions between the
respondent and the union throughout this period, during which meetings the union representatives were kept abreast of the respondent’s
position. It was never disputed that the continued operation of the production unit was not brought about by an improvement in the
market conditions, but by a lifeline which was extended by the respondent’s holding company - a lifeline which it was not prepared
to extend once the preliminary auditors report became available.
[23] In view of the aforegoing, the finding of the Court a quo that the ongoing consultative process commenced in September 1997 can, in my view, not be faulted and should be upheld.
WAS SUFFICIENT INFORMATION ABOUT RESPONDENT’S FINANCIAL AFFAIRS DISCLOSED:
[24] The Court a quo found that sufficient financial information had been made available to the appellants. It is common cause that the union was given
an opportunity to appoint their own auditor to verify financial information. In addition an offer was extended to the union to have
their expert examine the financial statements after 7 June 1998, the date upon which the results of the Kohler Group were due to
be published. The respondent was of the view that, as it was a wholly owned subsidiary of a public company, it was incumbent on management
not to release information to individuals prior to the publication of the Kohler Group’s results. Pursuant to this invitation
the appellants appointed a certain Mr. Maurice Wainwright of the Logistics Bureau (Pty) Limited to investigate the respondent’s
financial situation.
[25] The Court a quo
.RTF of original document