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CEPPWAWU and Others v Price's Daelite (Pty) Ltd (JA39/00) [2001] ZALAC 22 (29 June 2001)
.RTF of original document
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case No: JA 39/00
In the matter between
CEPPWAWU
1ST Appellant
SOLLY MADISHA AND OTHERS
2ND to 54th Appellants
and
PRICE’S DAELITE (PTY)LTD
Respondent
_______________________________________________________________
JUDGEMENT
_______________________________________________________________
ZONDO JP
Introduction
[1]
The respondent is involved in the business of manufacturing candles. Prior to the 28th February 1997 it had three factories from which it operated. The one factory was in Booysens in Johannesburg, another one in Newtown,
also in Johannesburg and the last one in Glen-Annil in Durban. Of these factories the one at Booysens was the oldest. The one at
Newtown was the biggest in terms of its operations.
[2]
The second and further appellants were employed by the respondent in its Booysens factory until
the 28th February 1997 when they were dismissed. They were members of the first appellant, a trade union. The respondent stated that the dismissal
of the second and further appellants was for operational requirements. In proceedings that ensued thereafter in the Labour Court
the present appellants challenged the fairness of the dismissal and sought reinstatement and other relief. The challenge to the dismissal
was that it was both procedurally and substantively unfair.
[3]
The Labour Court, per Pillay J, found the dismissal substantively unfair but procedurally fair.
However, it decided, in the exercise of its discretion, not to award the second and further appellants any relief. It is against
this finding and the Court a quo’s refusal to award the second and further appellants any relief that the appellants now appeal
to this Court. The respondent has noted a cross-appeal against the finding that the dismissal was substantively unfair. The result
of this is that both the substantive fairness as well as the procedural fairness of the second and further appellants’ dismissal
are in issue in this appeal. I consider it necessary, in the light of the issues in this appeal, to set out at some length the events
that preceded the dismissal of the second and further appellants.
The background
[4]
On the 22nd October 1996 the respondent wrote a letter to the union in which it intimated the possible closure of the Booysens factory. It proposed
that the two parties hold a meeting on the 28th October 14h00 in this regard. The union accepted the proposal for a meeting.
[5]
A meeting took place between the respondent and the union on the 28th October 1996. It was a short meeting. Not much occurred other than that the respondent took the union through its reasons for the
proposed closure of the Booysens factory. On the 8th November 1996 the respondent addressed a letter to the union. It informed the union that, due to the surplus and oversupply of goods,
it was forced to work short-time. In this regard it informed the union that the factory would not operate on the 15th and 29th November. The respondent confirmed its availability for a meeting with the union on the 13th November at 14h00 to have wage negotiations and to discuss the issue of short time. On the 12th November 1996 the union replied to the respondent’s letter of the 8th November 1996 and confirmed its availability for the
proposed meeting of the 13th November 1996.
[6]
On the 13th November 1996 a meeting took place between the respondent and the union. At this meeting two of the matters that were discussed were
the proposed closure of the Booysens factory and the proposed working of short-time. With regard to the working of short-time the
union complained that the respondent was not discussing the issue with it but was simply informing it thereof. The union threatened
legal action if the respondent proceeded with the implementation of short-time without the agreement of the union. With regard to
the possible closure of the Booysen’s factory the respondent stated that it was at that stage considering four options. The
options were given by the respondent as being:
(a)
closing the factory and opening a warehouse;
(b)
taking over the market from AC Kotane’s business;
(d)
closing the factory until the second week in February to upgrade machinery and hopefully get AC
Kotane’s business;
(e)
opening the factory in January 1997 and work Saturdays to upgrade machinery: all employees would
work on a roster basis and would be paid overtime.
[7]
The AC Kotane business was also a candle manufacturing business that was based in Kwa Zulu - Natal which the respondent was considering buying. The respondent made it clear that, if the option of buying the AC Kotane business
did not materialise, the respondent would have no option but to close the Booysens factory.
[8]
Three days after the meeting of the 13th November, namely on the 16th November, attorneys who had been instructed by the union wrote to the respondent threatening legal action if the respondent proceeded
to implement short-time. In their letter they also accused the respondent of having failed to supply information that had been requested.
Mr Taylor testified in the Court a quo that no information had at that stage been requested from the respondent. He said that the
union had made somewhat bald statements that they required information but had failed to be specific about what information they
required.
[9]
In a letter dated 20 November 1996 addressed to the union the respondent once again indicated that
it believed that it would be necessary to close the Booysens factory. It attached to the letter a list of 63 employees with information
of how it proposed they should be dealt with “in the future”. Four of these, it said, were pensioners. The respondent proposed: (a) to transfer eighteen of the employees from the Booysens factory
to the Newtown factory; (b) to retrench 38 of the employees, and (c) to place two employees on early retirement. It proposed that
the union place the closure of the Booysens factory on the agenda for a meeting that was scheduled for the 26th November 1996. By agreement the respondent and the union subsequently brought the date of that meeting forward from the 26th November 1996 to the 25th November 1996.
[10]
On the 25th November 1996 a meeting was held between the respondent and the union. The discussion included the respondent’s proposal to
close the Booysens factory and to turn it into a warehouse. At the meeting the respondent explained the reasons for the proposed
closure of the factory. The union does not appear to have responded. Instead it asked for certain information. The information which
the union requested was:-
(a)
the reasons for the proposed closure of the factory;
(b)
alternatives considered by the company before closing the factory;
(c)
number of employees affected and their job categories;
(d)
the “criteria process” for retrenchees;
(e)
time and period for retrenchments to take place;
(f)
proposed severance package payable to retrenchees;
(g)
possibility of re-employment in future;
(h)
the kind of assistance the company is prepared to offer to retrenchees.
[11]
On the 26th November 1996 the respondent addressed a letter to the union in which it gave all the information which the union had requested from
it at the meeting of the previous day. Attached to such letter was the list of employees which the respondent had previously given
to the union with information of what it proposed should happen to them. This included 18 employees that the respondent proposed
to transfer to the Newtown factory. The respondent indicated that the retrenchment was proposed to take effect on the 13th December 1996. On the 27th November 1996 the union wrote a letter to the respondent acknowledging receipt of the respondent’s letter of the 26th November 1996. The union indicated that it was considering the information and would “respond to you in due course”. On the 29th November 1996 the respondent responded to the union and suggested that a meeting be held on the 2nd December 1996.
[12]
By the 2nd December the union had not responded to the respondent’s proposal for a meeting on the 2nd December. No meeting took place on that day. On the same day the respondent sent a letter to the union complaining that the union
had failed to arrive for a meeting. It then suggested the 4th December for a meeting “in order to finally resolve this matter”. That was the closure of the Booysens factory and wage negotiations. This drew a sharp response from the union on the same day disputing
the suggestion that an arrangement had been made for the two parties to meet. The union confirmed in the letter that it was available
for a meeting on the 4th December. The parties could not agree on the time for the meeting. In the end they agreed to shift the meeting to the 9th December 1996.
[13]
A meeting was held between the respondent and the union on the 9th December 1996. During this meeting the union indicated that it did not agree with the timing of the retrenchments as the closure
of the factory should not, according to the union, run concurrently with the employees’ leave. In this regard it needs to be
remembered that the respondent had previously informed the union that it proposed to effect the retrenchment on the 13th December 1996. The respondent replied that its calculations revealed that the closure of the factory had already been necessary in
October. As the meeting progressed, the union and the respondent expressed conflicting views on whether, in consultations, the respondent
required the union’s agreement or whether an attempt to reach consensus was sufficient. The union insisted that agreement had
to be reached whereas the respondent stated that an attempt to reach consensus was sufficient if no consensus could be reached.
[14]
The union also expressed the view that, if the retrenchment was necessary, it should be effected in January
of the following year.
The union then proposed that rather than have a retrenchment, employees should work short-time. The respondent rejected the short-time
proposal reminding the union that, when the respondent proposed short-time before, the union had rejected the proposal and had instructed
an attorney to send a letter threatening legal action. The union’s response to this was that the respondent’s proposal
for short-time had had “strings attached” to it. The union then proposed a lay-off. The union raised the issue of last in, first out to which the respondent agreed. The respondent
asked the union to keep open Friday the 13th December at 09h00 for a possible meeting. At the end of the meeting Mr Taylor indicated that the respondent would respond to the
union’s proposals for alternatives on the 11th December. The meeting closed. Mr Taylor testified that, although at the meeting of the 9th December, the union proposed a lay-off, it did not pursue this proposal any further. He testified that in fact the union later rejected
the notion of a lay-off completely.
[15]
It appears that, apart from the meeting of the 9th December, a meeting was held between that parties on the 10th December as well. This can be gathered from the union’s letter of the 13th December addressed to the respondent in which it purported to confirm what had transpired at such meeting. That there was such a
meeting also appears from a letter dated the 11th December which the respondent addressed to the union. In its letter of the 13th December the union purported to confirm the following as having occurred at the meeting of the 10th December:
“1.
Firstly, consultation proper on this issue started on 25/11/95 and not in October as claimed by your company.
2.
Secondly, we had agreed to have further consultations on this matter on 13th December 1996 (today), and your company failed to attend this crucial meeting without any apology.
3.
Lastly, the writer hereof would be on leave on 13 January 1997 and therefore not available for the proposed meeting. We, therefore,
propose to put this matter in abeyance to the end of January.
4.
In conclusion your response to our proposals regarding the closure is selective, you are therefore urged to forward a comprehensive
response in this regard.
Hoping you shall find the above in order.
Yours faithfully.
(Signed)
JD SELLO”
