-
comment on the consultative approach and indicate possible alternatives and [to] know each other and develop a working relationship.”
[13]
The union confirmed its agreement to participate in the project by way of a letter from a Mr Robinson
Mosebi. The letter appears to have been approved by Mrs Molefe who was the chief shopsteward of the union at the respondent. In addition
to advising in that letter of its agreement to participate in the project, the union also made a proposal as to the composition of
“the structure of the Steering Committee.” The union suggested that each steering committee should be composed of:
(a)
one representative from the consultancy;
(b)
two representatives from supervisors/managers
(c)
three representatives of unions or employee organisations.
Mr Marais subsequently wrote to the union to welcome its decision to participate
in the process or the project. He also informed the union that he was accepting its proposal of how the steering committees should
be composed. He said that in fact the union’s proposal on the composition of such committees was the same as his own earlier
proposal. The union then participated in the project and in the steering committees. In participating in the project and being part
of the steering committees, the union was free to raise whatever concerns it had, was free to make any proposals it wished to make
and was free to express any views it had. It was not hampered in any way.
[14]
In a letter dated 21 August 1997 the union, through Mr Robinson Mosebi, advised Mr Marais that the union
was withdrawing from further participation in the project because the minutes of the various meetings that its representatives had
attended did not reflect the contributions made by the union representatives’ in such meetings. However, later on the union
rejoined the process and continued to participate until the end of the process.
[15]
In the September 1997 issue of the University’s bulletin it was explained that, after the establishment
of a steering committee in each one of the support services that had been prioritised, the project team (i.e. the consultants) had
undertaken an independent investigation into each of the various services. It was said that such investigation had focused on the
effectiveness, client satisfaction, cost, efficiency, the opinions of staff, management practices as well as comparisons with the
practices at other organisations.
[16]
It was also stated in the bulletin that at that time the consultancy was presenting two workshops in
respect of each service. At such workshops, continued the bulletin, the consultancy’s analysis of the service, the need for
change as well as the possible alternatives for the future were considered in consultation with the steering committee concerned.
It was stated that, once those workshops had been concluded, the consultancy would make a recommendation to the Executive of the
respondent. It was then written: “These recommendations may coincide with or differ from those of the steering committee.” It was stated that that was where the work of the steering committee would end.
[17]
There was a section in the September 1997 UP Bulletin which dealt with the “road ahead.” In this section it was stated that in October 1997 the consultancy aimed to complete the report-back to the steering committees.
The following also appeared in the bulletin:
“The analyses of the project team will by then have been open to inspection by all interest groups and these groups will have been
able to participate in the process for the consideration of alternatives for the future. After the steering committee process in
respect of each department has been concluded, the project team will make their recommendations, together with views expressed by
the steering committee concerned to the Executive of UP. This means that the Executive may start to take principle decisions regarding the future of the various services during September
and October 1997. Where personnel implications arise, management will have to consult with the parties concerned before a final decision
can be made.”
During October 1997 the consultants submitted their reports in respect of some of the support services to the Executive of the respondent.
In such reports the consultants inter alia identified the problems in the relevant support service areas and made recommendations
on what should be done to address them. The recommendations included that the support services affected in this matter be outsourced.
[18]
The Executive of the respondent furnished copies of the consultants’ reports to all stakeholders
including the union and asked them to give their reactions thereto. In a letter dated 29 October 1997 Mrs Molefe undertook to Prof
Pottas of the respondent that the union would submit its response to the reports of the consultants on the 5th November 1997. This was agreed to by the respondent. In the UP Bulletin of the 7th November 1997 it was announced that on the 1st November a support centre had been installed in the Marketing Services Building “to answer questions from staff about the renewal process at UP.” The investigation undertaken by the consultants was part of the renewal process at the respondent. It was further stated
that the centre would also be “part of general employees’ aid programme managed by the Labour Relations Division.” It was stated that a team of professionals including ministers of religion, social workers, psychologists and staff of the
Labour Relations Division would be available to assist staff. It was also written:
“The centre will assist staff who may be affected by rationalisation to compile a CV, find other work and will also give advice on
financial matters etc. Staff members will still be able to use this one stop service for a limited time after they have left the
university’s service.”
[19]
The union failed to submit its response to the reports by the 5th November 1997. By a letter dated 10 November 1997 the union asked that it be given an opportunity to give a verbal reaction to the
consultancy’s reports and that this be done on either 12 or 13 November 1997. By a letter of the same date Prof de Beer, who
was a vice-principal of the respondent and who was the respondent’s main contact person or representative both in the Support
Services Development Project and in the subsequent sec 189 consultation process that started in November or December 1997, agreed
to the union’s suggestion.
[20]
On the 13th November 1997 a meeting was held between the respondent and the union. Although the union had requested the meeting for the purpose
of giving a verbal reaction to the consultants’ reports, once at the meeting, the union’s Mr Jaftha indicated that there
were a number of questions on which the union sought to have clarification. One such question was whether the process that had taken
place was a substitute for the consultation process required by the Act in the case of a contemplation of a dismissal of employees
for operational requirements. Prof de Beer explained that, once the Executive of the respondent had received all comments on the
reports and all parties had had a chance to discuss them with a view to trying to reach a consensus, the Executive would “take a position in terms of which the provisions of section 189 of the Labour Relations Act might come into play and will be followed
to the letter.”
[21]
After asking another question which was answered, the union’s Mr Jaftha submitted a proposal for
redeployment to Prof de Beer. The document containing the proposal was marked: “NEHAWU’s Redeployment Proposal”. Mr Jaftha commented that such proposal had been used as a model for restructuring at other institutions focusing on a training strategy
for staff with the use of government funding earmarked for such purpose. Mr Jaftha stated that the proposal did not constitute the
union’s reaction to the reports and reserved the “right” to comment later. Prof de Beer undertook to submit the proposal to the Executive for consideration after which a follow-up
meeting would be held to discuss the merits of the submission as part of the comment on the reports. The meeting ended with the union
not having given the verbal reaction to the consultants’ reports as it had undertaken to. It also did not ask for an extension
of time to do so.
[22]
On the 18th November 1997 the respondent gave notice of consultation in terms of sec 189 of the Act and invited various unions including the
union to a meeting scheduled for the 24th November 1997. There was an annexure to the notice. The annexure to the notice stated, among other things, that “the crux of the [consultants’] recommendations, comments and proposals” revealed that “the respondent will have to provide for the discontinuation of service in various ways of some of its employees on the basis of the
University’s operational requirements, should attempts to avoid such staff reduction by the consultation as set out in Section
189 of the Labour Relations Act not succeed.”
[23]
In the second last paragraph of the annexure to the notice it was stated that as a point of departure
the management of the respondent would attempt to enter into discussions with all parties involved regarding, among others, measures
to try and avoid dismissals, to minimise the number of persons who might be considered for dismissal and to mitigate the adverse
effects arising from dismissal as well as information that may be required.
[24]
On the 24th November 1997 the respondent held a meeting with various unions and employee organisations as well as staff who were not members
of any unions. The union had observers at that meeting but arranged to have a separate official meeting with the respondent on the
25th November 1997. The respondent and the union did, indeed, hold a meeting on the 25th November 1997. The management stated at the meeting that since receiving responses to the consultants’ reports from a number
of stakeholders, it had become evident to it that it would have to face realities and contemplate the dismissal of members of staff
on account of operational requirements. The management stated that at that stage there was no indication of the number of employees,
departments or units that could be affected by such a process. It was stated that the purpose of the meeting was to inform the union
of the situation. The management set out certain measures that it thought could help to avoid dismissals or minimise the number of
dismissals.
[25]
The union’s Mr Jaftha expressed the hope that the management would bear the interests of the staff
at heart and not treat the consultation in terms of sec 189 of the Act as a mere formality. According to the minutes he further stated
that there were indications that “this was a mere formality or so-called smoke screen for decisions that had already been made.” The minutes of the meeting reflect that Mr Jaftha “referred to a UP Bulletin of the 7th November 1997 in which it was indicated that a support centre was established prior to the commencement of the process.” Mr Jaftha said that from this it appeared that the decision to dismiss staff had already been made by the management. He
also queried why, if the first phase of the Support Services Development Project had not yet been completed and all comments received,
notice was given of staff reduction in terms of section 189. The minutes indicate that Mr Jaftha pointed out the distinction between
restructuring and a decision to retrench and that the parties involved had agreed to a process of restructuring.
[26]
Mr Jaftha also stated that the union doubted “the sincerity, honesty and commitment of Management” and was not confident that the ideas and proposals it would make would be meaningfully addressed. He said that for this reason
the union’s intention was to “tie the matter up by all possible means in terms of the relevant legislation.” The union said that it had been caught off-guard as it had thought that the meeting was still to deal with the first phase of the
project. Mr Jaftha stated that the union had thought that the notice of consultation in terms of sec 189 of the Act would only be
given after the completion of the first phase. Mr Jaftha proposed on behalf of the union the addition of another item on the agenda
of the meeting. The item is reflected in the minutes as “mitigating the timing of dismissals.” Mr Jaftha said that the union would argue that that was not the time to dismiss employees in the light of the approaching festive
season.
[27]
Mr Jaftha also requested that “section 197 of the Labour Relations Act, regarding the transfer of contracts, also be included in the legal framework.” The management said it was agreeable to this as it considered section 197 as part of the law of the country to which the respondent
was subject. The union reserved its comment regarding vacancies and fixed-term contracts of employment as potential mea
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