Introduction
[1]
This is an appeal from a decision of the Labour Court in a dispute between the appellant, on the
one hand, and the respondents, on the other, on whether the appellant’s dismissal of the second respondent was unfair and,
if so, what relief was appropriate.
The facts
[2]
The appellant is a producer of fresh and frozen chickens. It is based in the Western Cape. Its chickens
are bred, slaughtered and processed in the Western Cape but are distributed throughout South Africa and Namibia. The appellant’s
premises in the Western Cape are at Hocroft where it has an abattoir. It has a large production plant at Epping – still within
the Western Cape. The processing of chickens is conducted at the Epping facility. The Epping facility has two operations, namely,
the fresh food production plant and an operation referred to as the “New Market Cold Store”. The former employs about 450 employees and the latter, 18. It would seem that the New Market Cold Store facility is used
for the refrigeration of both fresh and frozen chickens before their distribution.
[3]
The first respondent is a trade union of which the second respondent is a member. The second respondent,
Mr Clive Jones, was employed by the appellant in 1989 as a packer. In 1991 he was transferred to the fresh produce department at
New Market. There he was employed as what is known within the appellant’s operations as a “new order make-up”. In that capacity the second respondent was responsible for the compilation of orders prior to dispatch.
[4]
In September 1999 the second respondent was promoted to the position of a forklift driver in which
he was required to operate a forklift in various parts of the cold store or to load trucks for delivery to retailers. The appellant
had five forklift drivers including the second respondent. There were three shifts which the forklift drivers worked. These were
the early shift which ran from 06h30 to 16h15, the day shift which ran from 07h30 to 17h15 and the late shift which was from 10h30
to 20h30. The second respondent worked the day shift only whereas the other four forklift drivers alternated between the early shift
and the late shift every fortnight.
[5]
In December 1999 an employee who had been employed as head of one of the departments in the cold
store was dismissed. His dismissal meant that his position became vacant and somebody had to be appointed to that position. The appellant
filled that vacancy by promoting one of the forklift drivers to that position. This meant that there were now four forklift drivers
instead of five.
[6]
On the 9th December 1999 the appellant issued a document that it called “Employee Communique/brief”. For convenience I shall refer to such documents in this judgement simply as memoranda. The appellant used to communicate with its
employees and their representatives in this manner. The heading of the document of the 9th December was: “Notice of the Company’s intention to rationalize the New Market Department.” The document read thus:-
“We refer the (sic) Company’s on-going rationalization of the Company’s operational and business activities in an ongoing
endeavour to try and improve the Company’s competitive advantage and market share, overhead costs structure, productivity,
operational and business related efficiencies, resource utilization and profitability.
In furtherance of the Company’s on-going rationalization, the Company herewith
gives notice of the Company’s intention and proposal to rationalize the Company’s New Market Department, with the view
to re-align the New Market Department’s operational activities with the Company’s other operational and business related
activities, with effect from 01 January 2000.
In the light of the successful internal appointment of one of the Company’s
staggered shift Forklift Drivers to the position of Departmental Head, the Company proposes to reduce the number of Forklift Driver
positions from five to four positions in future.
The Company further proposes to transfer one of the Company’s current day shift
Forklift Drivers onto the Company’s staggered shift arrangement to fill the vacancy created by the recent Department Head promotion.
The Company accordingly invites our employees and their collective bargaining representative,
OCGAWU to consult with the Company on the Company’s rationalization proposal, as set out here above.
Should any of our employees have any queries and/or proposals concerning the contents
of the employee communiqué/brief, please do not hesitate to contact your immediate superior in this regard.
We trust that our employees will find the above in order and look forward to meaningful
consultations in this regard. Thank you.”
[7]
It will be seen from the memorandum that the appellant was proposing to do away with the day shift.
As that is the shift which the second respondent worked, the proposal affected him directly. In the memorandum the appellant invited
the employees as well as the first respondent to consult with it on its rationalisation proposal. The memorandum was put on the notice
board in the company and was faxed to the union. The appellant’s proposal entailed that the second respondent would work like
the other forklift drivers, namely, alternate between the early and late shifts. He refused to work on that basis giving church commitments
that he had in the evenings as the reason why he was not prepared to work the same shifts as the other forklift drivers. The second
respondent was prepared to work the early shift but not the late shift. The difficulty with this was that the forklift driver who
had been promoted and whose position the second respondent had to fill had worked on the basis of alternating between the early and
late shifts.
[8]
From the 5th to the 30th January 2000 certain of the appellant’s employees, including the second respondent, participated in a strike. Apparently the
appellant also purported to lock the striking employees out during the strike. The strike and lock-out came to an end on the 31st January 2000 when the second respondent returned to work. He was the last one of the employees to return to work. During the strike/lock-out
the appellant had operated with four forklift driver. The other three forklift drivers had not participated in the strike. The second
respondent’s position had been temporarily filled by a casual employee who, unlike the second respondent, worked the same shifts
as the other forklift drivers. The system of four forklift drivers had worked efficiently. This was the system that the appellant
had proposed before the strike.
[9]
On the second respondent’s return to work on the 31st January a discussion took place between Mr Coetzee, the second
respondent’s immediate superior, and the second respondent. During this discussion
Mr Coetzee told the second respondent that he expected him to fall into the new shift system the next day. The second respondent
replied that he was not prepared to do so. According to Mr Coetzee, he told the second respondent that the latter would be retrenched
if he did not fall into the new shift system the next day.
[10]
A meeting was held later on the same day which was attended by Mr Coetzee, Mr Visser, who was the general
manager of the appellant’s operations, and the second respondent. In that meeting further attempts were made to urge the second
respondent to agree to work the new shift system but he continued to refuse. Mr Visser repeated to the second respondent the rationale
behind the reduction from five to four forklift drivers. He also told the second respondent that, if he did not accept the staggered
shift system, the alternative that remained was a retrenchment without any severance pay because the appellant had offered him an
alternative position.
[11]
At this stage of the events there is a conflict between Mr Visser’s version and the second respondent’s
version. On Mr Visser’s version he and the second respondent reached an agreement that the second respondent take a week off
on full pay to go home and think about the issue. On the second respondent’s version, Mr Visser told the second respondent
that the latter was suspended until the 7th February which was a date scheduled for a meeting between the appellant and the union to discuss organisational rights. The second
respondent’s version is the one to be preferred in this regard because the appellant’s own memorandum of the 1st February supports his version unequivocally. In that memorandum the appellant referred to the second respondent as having been suspended.
The material contents of that memorandum are quoted in paragraph 13 hereunder.
[12]
On the same day, namely the 31st January, the union sent a letter to the appellant. In that letter the union alleged that threats had been made to the second respondent
on that day to unilaterally change his working conditions and to retrench him. It alleged that those threats were unlawful and urged
the appellant to refrain from carrying them out and to apologise to the second respondent. The union also said that it remained open
for consultation if the appellant wanted to consult it on a need to change the second respondent’s working conditions.
[13]
On the 1st February 2000 the appellant issued another memorandum. The material parts of that memorandum read thus:
“We also refer to the Company’s various notices in this regard with specific reference of (sic) Company’s New Market
Cold Storage Department and the introduction of a staggered shift practice, with effect from 01 January, 2000, as part and parcel
thereof.
We refer to the OCGAWU letter dated 31 January 2000, concerning OCGAWU’s objection
to the Company’s alleged unilateral amendment of the terms and conditions of service of Clive Jones, one of the OCGAWU Shop
Stewards and his refusal to work in accordance with the Company’s new staggered shift practice.
Clive Jones is the only employee in the Company’s New Market Colds (sic) Storage
Department, who has refused to work in accordance with the Company’s new staggered shift practice.
We in the last instance refer to the provisions of the Labour Relations Act, which
allows(sic) an employer to retrench employees, who unreasonably refuse to accept an offer of alternative employment with that employer,
without the benefit of a severance package.
We regret that in the light of the timeous notice of the Company’s intention
to rationalise the operational activities of the, (sic) Clive Jones’s refusal to work in accordance with the Company’s
new staggered shift
system, the Company’s operational and business related requirements and in
the absence of meaningful, viable and/feasible (sic) alternative to the Company’s staggered shift rationalisation measures,
the Company has no real alternative but to formally retrench him, with effect from 01 February, 2000 and without the benefit of a
severance package.
In an (sic) good faith endeavour to assist Clive Jones in finalising his decision
concerning his compliance with the Company’s new staggered shift practice the Company has decided to suspend Clive Jones with
full pay until the collective consultation meeting between the Company and OCGAWU at 10H00 on Monday, 07 February, 2000, concerning
the Company’s rationalisation intentions and proposals.
The Company will further not implement Clive Jones’s retrenchment, subject
to and conditional on the parties’ collective consultation meeting, in accordance with the provisions of the Labour Relations
Act concerning the dismissal/retrenchment of Shop Stewards.
Clive Jones’s services with the Company are therefore proposed to be formally
terminated on 29 February 2000.
The Company however remains firmly committed to continue (sic) to (sic) in good faith
consult on the implementation of the Company’s proposed rationalisation measures, inclusive of Clive Jones’s formal retrenchment,
even after the implementation thereof.”
[14]
In one paragraph of the memorandum the appellant said that, in the light a number of matters which are
set out therein, it had “no real alternative but to formally retrench [the second respondent] with effect from 01 February 2000 and without the benefit of a severance package”. In another it proposed that the second respondent’s services be formally terminated on the 29th February 2000. Indeed, in the last paragraph the appellant said that it remained committed to continuing to consult in good faith
“on the implementation of the [appellant’s] proposed rationalisation measures inclusive of the second respondent’s
formal retrenchment, even after the implementation thereof.”
[15]
A meeting took place between the appellant and the union on the 7th February. At the meeting the union proposed that the second respondent go back to the position of order make-up at a salary rate
lower than the salary he was earning at the time. That position was on a lower grade than that of a forklift driver. The salary was
lower as well. The appellant could not respond to this proposal immediately but undertook to consider the proposal and revert to
the union. It was anticipated that another meeting would be held at which the matter would be discussed further.
[16]
The appellant only responded to the union’s proposal on the 16th February. It did so by way of another memorandum. The
heading of the memorandum was: “OCGAWU’s employee bumping request.” The rest of the contents of the document read thus:-
“OCGAWU proposed that the Company consider the employment of Clive Jones in his previous Newmarket Order Make-up position, as a viable
and feasible alternative to the Company’s proposed retrenchment.
Employees on a higher job grade and wage rate, with suitable skills and longer service,
who have been earmarked for retrenchment, may apply to be demoted to a lower position and wage rate, where the encumbent (sic) of
that position has shorter service, subject to and conditional on the Company’s operational and business related requirements.
Where the Company’s operational and business related requirements allow for
such demotion and bumping of a lower grade and paid employee, the lower grade and paid employee will be retrenched in favour of the
higher grade and paid employee.
In the light of the above and after careful and due consideration of OCGAWU’s
request in this regard and the Company’s operational and business related requirements, the Company has decided to allow Clive
Jones the opportunity to be appointed in his previous position as a New Market Order Make-up and at the associated lower job grade
and wage rate, with effect from Thursday 17 February 2000.
Clive Jones is accordingly required to report for work on Thursday, 17 February 2000
to commence to execute his normal duties and responsibilities as a New Market Order Make-up.
The Company will on a best endeavour basis try to accommodate the New Market Order
Make-up, with shorter service than Clive Jones and who Clive Jones will bump elsewhere in the Company, failing which the Company
will have no real alternative in the absence of meaningful viable and – or feasible alternative to the contrary, but (sic)
formally retrench the employee concerned, with effect on 01 March 2000 and terminate his services on 31 March 2000.
[17]
The second respondent did not report for duty on the 17th February. It is not clear whether he learn’t of the contents of the appellant’s memorandum of the 16th but decided not to report for duty or whether he was not aware of its contents. The union wrote a letter to the appellant in response
to the memorandum of the 16th. In its letter the union accused the appellant of creating “the wrong impression that the union wants somebody from New Market Order make-up to be retrenched to make place for [the second
respondent].” It said that this was untrue. It then stated that the second respondent would accept his old job back at the lower grade and rate
“but not at the expense of another employee.” It urged the appellant “to look again at the situation with the concern (sic) in mind and revert back (sic) to the union.” It also asked whether somebody could not be trained “from New Order Make-up to drive [the second respondent’s hyster]”. The last sentence of the letter was to the effect that the union’s “above comments” were without prejudice “to our pursuance (sic) of the matter through the CCMA, however, we hope an amicable settlement is possible.”
[18]
The appellant replied to the union’s letter by way of a memorandum dated the 23rd February 2000. In the memorandum the appellant stated that it had agreed to a proposal that had been made by the union to appoint
the second respondent in the New Market Order Make-up position but the union had, by its letter of the 17th February, changed its mind on this. The appellant stated that it had agreed to appoint the second respondent with effect from the
17th February. It said that the second respondent and the union “do not want [the second respondent’s] appointment to his previous positing (sic), where his appointment would necessitate
the retrenchment of the employee currently employed in that position”.
[19]
The appellant then stated that the second respondent had accordingly “not accepted the [appellant’s] offer of employment and has not reported for work on Thursday 17 February 2000 or thereafter,
with the (sic) view to execute the duties and responsibilities associated with his previous position.” The last four paragraphs of the memorandum read thus:-
“The [appellant] has undertaken to try and accommodate the employee, who is
currently employed in [the second respondent’s] previous position, elsewhere within the [appellant], failing which, the [appellant]
would have no real alternative, but (sic) formally retrench that employee with effect from 01 March 2000.
In the light of the above and in the absence of any meaningful, viable and/or feasible alternatives to the contrary, the [appellant]
has no real alternative, but to confirm [the second respondent’s] retrenchment with effect on (sic) 01 February, 2000.
[The second respondent’s] services with the [appellant] will accordingly be
formally terminated on 29th February, 2000.
The [appellant] accordingly invites our employees and their collective bargaining representative, OCGAWU, to consult with the [appellant]
on the [appellant’s] rationalization measures, inclusive of [the second respondent’s] proposed retrenchment.”
.RTF of original document