Springbok Trading (Pty) Limited v Zondani and Others (PA2/03) [2004] ZALAC 12 (9 July 2004)

[1] On the 14th July 2000 the appellant terminated the respondents’ contracts of employment. Aggrieved by this decision, the respondents took the resultant dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (“the CCMA”) for conciliation. When the dispute could not be resolved through conciliation, it was referred to the Labour Court for adjudication. The matter came before Ngcamu AJ who, after hearing evidence from both sides, found that the respondents’ dismissal was substantively and procedurally unfair. The Court a quo ordered the reinstatement of the respondents on terms and conditions no less favourable to them than those that had governed their employment before their dismissal. With the leave of the Court a quo, the appellant now appeals against that order.

[3] The appellant is a registered company which procures hides and skins in Southern Africa and gets them semi-processed and sells the product on local or overseas markets. The respondents are former employees of the appellant and members of the National Union of Leather and Allied Workers (“the union”) who were dismissed from the appellant’s employment for alleged operational requirements on the 14^th July 2000. Mr Arthur Petrus (“Petrus”) features prominently in this matter. He was the organiser of the union who dealt with the appellant in regard to matters affecting members of his union employed by the appellant including the respondents. Another person who features prominently in this matter is Mr Peter Bell (“Bell”). He was a director of the appellant and also owned a labour brokerage called Prostaff Agency (“Prostaff”). Prostaff provided a group of workers to the appellant and charged the latter a fee for their services.

[6] Bell’s evidence as to what transpired at the alleged meeting of the 23^rd May was detailed. He said that the meeting took place at the appellant’s premises. He said that their discussion was about “grievances and disciplinary issues and stuff.” He said that he was just giving Messrs Petrus and Ndleleni (“Ndleleni”) clarity on some questions. Bell went on to say:.

“One of the issues that came up that I do recall was that they wanted to know how they could get hold of me and how they could complain, because they did have problems and I asked them why they had not raised them up until that point in time, and they seemed to be confused about the fact that I was not on the premises, and I did explain to them how to contact me and that if they had a material issue that needed discussion I would be there for them, and that they need just give me a written grievance and hand it to, I gave them a contact person who was my contact person, because I used to come out every week or twice a week, but I would not bother to go into the store at that point in time if there was no issue that needed to be resolved on a daily basis, and I would drop off the wages with one of the people in the admin office, and I explained to them that they should use that contact, if they wanted to get hold of me, just give a written grievance, or if there was a really pressing matter go to him and make a phone call so that I could get there.”

[7] Bell went on to say that they were discussing “(j)ust a few nitty gritty issues about who was in charge, who should they report to, who could they complain to and so on and so forth and process.” He said that that was the basis of the meeting. Bell said that the meeting did not take long. He said that he did not take minutes of the meeting because he did not believe that there was a need to. He stated that the meeting was “low key”. He testified that he explained to Petrus and Ndleleni how to get hold of him and said that, if there were any issues, he would address them.

[8] Bell further testified that at the end of the meeting he “got into a little bit of a verbal banter, if you wish to start with Mr Petrus, to explain to him what was in fact imminently on the horizon.” He said that he told Petrus that he had had a discussion with the other directors of the appellant and they were finding it rather inconvenient, time-consuming and wasteful to have two groups of employees working “in tandem” because they had to have a “fancy wage system going for [the appellant’s] employees which were separate from [those of Prostaff], the appellant had to have a person ‘constantly on administrative issues of the employees of [the appellant] and effectively I was handling all the labour issues and they just saw it as being the obvious solution to their problem in terms of economics, administration and efficiency to place all the employees that were located in their premises under the obvious place, Prostaff Agency, which at that stage had been working fine.”

[9] Bell went on to say “I took it as an opportune time to discuss it with Mr Petrus at that particular meeting of the 23^rd, and I actually went into it in a large amount of detail because, well, as much detail as was possible for this rather simple matter, a case of this is what [the appellant’s] management perceive, this makes sense, this is what we want to do, this is why we want to do it and this is how it is proposed that we do it, and all of that I went through with Mr Petrus at that particular meeting and I said to him but listen do not worry about it, he did not have any issues or questions, he just shrugged his shoulders or something if I remember again, and I said to him that I will formalise it because in terms of sec 189 it is required that I give him the letter stating the points, the reasons, etc what I propose. So I indicated to him at that point in time that a letter would follow shortly to him.”

Bell’s evidence was that the letter was transmitted by telefax to the union and a fax report slip was put up in support thereof. The respondents and Petrus did not dispute that the letter was sent to, and, received by, the union’s office but Petrus said that it did not reach him. As can be seen from the letter, Bell concluded it by inviting Petrus to contact him so that they could set up a meeting to discuss the matter.

[11] Both Petrus and Ndleleni denied having had a meeting with Bell on 23^rd May. In fact they also denied that there ever was a meeting between Bell and Petrus which was attended by Ndleleni at any stage. Petrus testified that on the 23^rd May he was attending a meeting of wage negotiations at the bargaining council and could produce documentary proof in support thereof. This had been put to Bell under cross-examination but he had persisted in his version in this regard. Petrus was never asked when he gave this evidence to produce the documentary proof of his attendance of the meeting of wage negotiations at the bargaining council nor did Bell or the appellant’s Counsel seek the production of such documentary proof. Petrus denied that he had any discussion with Bell on 23^rd May along the lines testified to by Bell.

[13] Petrus testified that at the meeting of 14^th June he and Bell discussed the issues set out in his letter of the 8^th May 2000 as well as “the wage.” Those issues were reflected in the letter as the “company’s procedural guidelines”, disciplinary code and “grievance Code and Employees.” Petrus said that he also discussed with Bell the appellant’s failure to provide him with documents that he had requested previously. He said that Bell told him that he did not have copies of those documents with him but would supply Petrus with such documents in due course. Petrus testified that he then brought up the question of a wage increase for his union members. He stated that he wanted to know what the appellant’s intentions were in that regard. He said that he asked Bell whether he would have a meeting with him regarding a wage increase for the employees and Bell said that he was in a hurry as he had other commitments and was not prepared to discuss a wage increase on that day.

[14] Petrus was asked whether Bell did not raise the question of retrenchment at this alleged meeting and he said that he did not. It was put to him that it was highly improbable that Bell would not have raised that issue at that meeting if such a meeting had taken place as he had already written the letter of the 30^th May to the union about the issue of a retrenchment. Petrus insisted that Bell did not raise the issue of retrenchment at that meeting. Under cross-examination Petrus emphasised that the meeting of the 14^th June was held at his request and that the issues that he had wanted to be discussed “were brought up, very fast, very quick and off went Mr Bell.” Petrus testified that, after his meeting with Bell, he had a meeting with his members and reported back to them what had transpired at that meeting. Bell denied having had a meeting with Petrus on the 14^th June.

[15] Under cross-examination Petrus testified that, after the meeting of the 14^th June 2000 but before the 19^th June, he drew up wage demands for the union members at the appellant and sent them to Bell. He testified that among those demands he made a 20% wage increase demand. He testified further under cross-examination that he asked for the meeting of the 19^th June to discuss wage demands with Bell. He said that he requested the meeting before the 19^th June and on that occasion Bell mentioned to him that he wanted “to bring up some proposed retrenchment.” Petrus said that Bell was also anxious that they have a meeting about the retrenchment.

[16] Under cross-examination Petrus’ attention was drawn to the fact that in par 6 of the respondents’ statement of claim it was alleged that Bell had telephoned Petrus “on or about 19 June 2000” and asked Petrus to attend a meeting on the appellant’s premises on the 19^th June. Petrus was then asked whether the allegation in the statement of claim was incorrect and that he was the one who had requested the meeting of the 19^th. Petrus answered that the allegation in the statement of claim was wrong as he was the one who had telephoned Bell and asked for a meeting to discuss wages. It needs to be observed that in his evidence in chief Petrus had said that Bell had telephoned him on the 19^th June and asked him to “come out” to the appellant’s premises and he had obliged.

[17] Petrus testified that he did not bring anyone to the meeting. Asked why he had not taken any one of the union members to the meeting, he replied that that was because he did not “want to interfere with the production.” Earlier on Petrus had testified that he had not taken any employee to any meeting with Bell because there was fear that any such employee would be victimised because the only shopsteward for the union who had ever been elected in the appellant, one Raymond, had been dismissed “unfairly” which was perceived as victimisation. Petrus was then asked whether the reason why he did not take any one of the union members to the meeting of the 19^th June was no longer fear of victimisation but a reluctance to interfere with production. To this he answered: “and it is not proper that we take workers to wage negotiations, only shopstewards.”

[18] Under cross-examination Petrus said that the purpose of the meeting of the 19th June was to discuss wages and the first issue that he raised at that meeting was the issue of a wage increase. Petrus said that Bell’s reply to this was that, if the appellant could afford an increase, it would consider giving an increase to certain employees. Petrus said that he then told Bell that “there is no such thing that if the company can afford it that the people must get paid increase.” Petrus testified that Bell “was very short and said [as] he always [said] that you can do what you want. I cannot even threaten him with industrial action because he said he can anytime get a truckload of workers to replace those that are taking part in the industrial action.”

[19] Petrus said that he then told Bell that he would report to the workers that Bell did not want to discuss wages with him. Petrus said that Mr Bell’s answer to this was to say that Petrus could do whatever he liked. As far as the issue of retrenchment is concerned, Petrus said that at the meeting of the 19^th June Bell said that he intended retrenching the workers from the appellant and bringing them over to Prostaff’s payroll. Petrus stated that his answer to this was to ask Bell to put everything in writing and send it to him and they could take the matter further after that. Petrus said that Bell then told him that whether Petrus liked it or not, he was going ahead with the retrenchments. Petrus said that he then asked if he could speak to the workers and Bell told him that he could speak to the workers and tell them what he had said but whether they accepted it or not, that was what was going to happen. Petrus testified further that, after his meeting with Bell, he met with the employees and reported back to them. He said that they were upset. He said that he told them not to sign any documents if Bell gave them documents to sign. Petrus testified that he instructed the workers not to sign any document because, as he put it, “I know how Mr Bell operates.”

[20] Petrus was asked under cross-examination what Bell said to him when he said that, if he wanted to retrench, he should notify him in writing and put his reasons for such retrenchment and proposals in a letter. Petrus answered that Bell’s reaction to his request was that whether he (Petrus) liked it or not, he, (Bell) was going ahead with the retrenchment. Petrus was then asked whether Bell did not at any stage say that he had already done that by way of his letter of the 30^th May. Petrus said that Bell did not mention any such letter. It was then suggested to Petrus that it was highly improbable that Bell would not have referred to his letter of the 30^th May if he, Petrus, had asked him to put this in writing because in effect this would have been asking Bell to repeat an exercise that he had already done. Petrus persisted in his version that no mention of such a letter was made by Bell. Petrus had maintained the same stance in respect of his alleged meeting of the 14^th June. Petrus testified that the meeting of the 19^th June did not even last for half an hour because Bell’s attitude was “whether you like it or not I am going ahead.” Bell denied having had a meeting with Petrus on the 19^th June and insisted that his second meeting with Petrus was on the 29^th June or thereabout. Petrus testified that he then waited to see whether Bell would go ahead with the retrenchment. Petrus said that he thought that Bell might change his mind about retrenching the employees but, if he did not, his plan was to declare a dispute and refer to the CCMA.

[21] Bell was asked during his evidence in chief whether Petrus had contacted him in response to his letter of the 30^th May. Initially Bell answered that Petrus had not contacted him. Bell added that that time was the season for annual wage negotiations for a number of companies in which the union was involved and Petrus was always complaining whenever Bell got him on the telephone about how busy he was “travelling from here to there to Durban…” He said that it was the peak season for annual wage negotiations for the various industries in which the union was involved and “they were busy running from pillar to post.” Mr Bell testified that he eventually spoke to Petrus and they agreed upon a meeting on the 29^th of June. Bell said that this meeting of the 29^th June was convened to discuss the retrenchment. He said that he was 100% sure that Ndleleni also attended that meeting. Bell said that the meeting was held at the appellant’s premises.

[22] Bell testified that the next meeting was on the 29^th June 2000. He said that present at that meeting were Ndleleni and Petrus, on behalf of the union, and himself on behalf of the appellant. Bell gave a detailed version of what occurred at the meeting of the 29^th. He testified that he went through the motivation for the appellant’s proposal. He said that there was no objection or any comment from Petrus and Ndleleni. He said that he then took it upon himself to “talk about practicalities, the details of actually making the change” because he wanted to satisfy the union and the workers that “there would not be any issues.” He said that he wanted to make the transition as smooth as possible for them. Bell went on to say: “So there were no proposals whatsoever from the union, he sat and listened with a mouth full of teeth. I will be quite honest, and he nodded and he did not show any point of disagreement or otherwise, and I specifically looked at issues that I thought could be of concern to workers.” Bell said that he told Petrus that, if the workers were paid out severance pay and they were then employed by Prostaff, they would in such a case be employed as new employees at Prostaff in which case, if there was a retrenchment at Prostaff, they would “bear the brunt of” such retrenchment on the basis of the last in first out (LIFO) rule. Bell went on to say that he had told Mr Petrus that the employees in question were “loyal chaps” and he did not want them to feel threatened in any way that their services would be terminated. Bell testified that he proposed that he would “put a rider into the agreement … that [he] would accept that the service would be counted as service, albeit not for future payment of severance pay, but for length of service.”

[23] Bell also testified that the other matter of concern to him which he raised at the meeting with Petrus and Ndleleni was that he did not want to have “to pay out the bonus and leave accrual or allocations from [the appellant] to the employees [as] it was close to Christmas and [he] did not want them to end up having a situation where they got to Christmas and their bonuses had been paid out in August and they had nothing for Christmas.” Bell said that he proposed that the appellant hold back the bonus and annual leave pay “so that they would not have an affected leave cycle or get their money and blow it before Christmas.” Bell said that he also proposed at the meeting that the employees’ sick leave cycles continuous as their service was to be regarded as continues once they were in Prostaff’s employment. He said that he had already spoken to the appellant about this. He testified that his aim in this regard was to ensure that the employees “would not end up having sick leave that they did not have an entitlement to.” Bell said that “those were the issues” at the meeting of the 29

South Africa: Labour Appeal Court

Springbok Trading (Pty) Limited v Zondani and Others (PA2/03) [2004] ZALAC 12 (9 July 2004)