---

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case no: JS 903/2008

In the matter between:

UNIMESHAWU obo VINCENT NGUBANE & 6 OTHERS                                        Applicants

And

SMS STEEL AND MAINTENANCE CC                                                                 Respondent

Heard:           20 May 2015

Delivered:     24 March 2016

Summary:     Dismissals on account of operational requirements; the Applicants seeking to be represented by a trade union of their choice after the consultation were concluded with the representative trade union; consultations occurred with the majority trade union of which Applicants were members; Could not show that they were members of the trade union of their choice at the time of the conclusion of the consultation process; No duty to consult with trade union of their choice Dismissal substantively and procedurally fair.

JUDGMENT

WALELE, AJ

Introduction.

[1] The matter came before the Court by way of statement of claim wherein the Applicants challenged the fairness of their dismissals on account of operational requirements. The Applicants sought an order declaring their dismissals substantively and procedurally unfair. The Applicants sought to be reinstated retrospectively. The dismissals occurred in 2008. The claim is opposed by the Respondent.

[2] The matter has a long history. On 2 September 2009, the Applicants obtained a default judgment in their favour and this Court declared their dismissals substantively and procedurally fair. This order was rescinded on 21 October 2010.

[3] There were only two Applicants Vincent Ngubane and Elliot Mbatha before the Court in these proceedings.

[4] The Applicants were employed as machine operators in 2002 and were dismissed on account of operational requirements on 27 October 2008. On 1 August 2008, the Respondent issued notices in terms of section 189 (3) pertaining anticipated dismissals for operational requirements of its employees.

[5] Roger Sue Rajpal, the Chief Executive Officer of the Third Respondent, testified that it commenced operations in the manufacturing of steel profiles during 1996. In 2008, one of its major clients cancelled their contracts as it had been liquidated. The Third Respondent consequently lost major business. As a result, the Respondent was forced to implement short time measures from February 2008 in order to alleviate the financial difficulties that it was experiencing.

[6] This measure had, however, little effect and in the beginning of August 2008, the Respondent contemplated retrenchments. The Third Respondent addressed a letter to this effect to both the registered trade unions in its business, namely, LEWUSA and NUMSA. The Third Respondent had both unionised and non-unionised employees in its business, however, all its unionised employees were either a member of NUMSA or LEWUSA. In addition, the Third Respondent sent out a section 189 (3) letters to all its employees.

[7] On 13 August 2008, the witness addressed all his employees in a meeting. Subsequently, the Respondent also held consultative meetings with the trade union representatives’ of NUMSA and LEWUSA. The Applicants being members of either of these trade unions were represented during the consultation meetings on 25 August 2008. The process was concluded at the end of August 2008 and the parties, by agreement, extended the notice period to end of October 2008. The parties also agreed to LIFO as the selection criteria in dismissing the employees.

[8] On 4 October 2008, UCIMESHAWU addressed correspondence to the Third Respondent informing them that the Applicants have now joined the trade union and, subsequently, in another letter requested that the Third Respondent hold consultation meeting on 16 and17 October 2008. A follow-up letter was received by the Respondent per facsimile dated 14 October 2008 requesting an urgent meeting on either 16 October 2008 or 17 October 2008 and the agenda indicated, in this letter reads as follows:

‘Our members request your company to re- consult with the above trade union concerning the dismissal for operational requirements. Their previous trade unions misrepresent them during the whole process.’ (sic)

[9] It is common cause that the requested meeting by the Applicants did not occur and the Applicants were dismissed. The Applicants referred an unfair dismissal dispute in November 2008.

[10] The Third Respondent denied that there was any obligation on its part to consult with the UCIMESHAWU and claimed that it had complied with its statutory obligations in terms of section 189 (1) (c). There was no duty to consult with the said trade union. The consulting parties had agreed on the principle of LIFO and same was applied fairly.

[11] The Third Respondent had only made deductions in favour of NUMSA and LEWUSA and at no stage was there any request by the Applicants’ or UCIMESHAWU itself to deduct any trade union subscriptions on behalf of the Applicants. The latest trade union levy that was deducted from the Applicants salaries was done on 29 October 2008. In any event the Respondent was not aware that the Applicants had joined or were members of another trade union prior to the commencement of the consultation process.

[12] The Third Respondent took the view that it had no duty to consult with the trade union who was not representing any of its employees or a representative trade union in its premises. The witness indicated that neither NUMSA nor LEWUSA referred any unfair dismissals on behalf of its members signifying that they were satisfied with the process followed. The Applicants in this matter are the only employees that had referred a dispute.

[13] In terms of the Applicants’ statement of claim, the retrenchment process was flawed because the Applicants were not represented by the trade union of their choice and the Third Respondent refused to consult with the said trade union. The Applicants further claimed that the Third Respondent failed to apply the selection criteria of LIFO correctly as the Respondent dismissed the Applicants who had longer service and retained the service of shorter serving employees.

[14] The Applicants, in terms of the pre-trial minute, agreed that it would call two witnesses to show the aforesaid and that it would supply the Court with the names of those employees whose services were retained.

[15] Louis Minnie, the Third Respondent’s general manager, testified that he was part of the consultation meetings referred to above and confirmed that he sent the letter to the registered trade unions representative in the company and that the section 189(3) letters were furnished to the employees. He was present when Vincent Ngubane refused to sign the section 189 (3) letter. He conducted the consultation meeting as the Respondent’s representative with both LEWUSA and NUMSA shop stewards.

[16] Vincent Ngubane, testified that he commenced employment with the Third Respondent in 2002 as a machine operator. He denied having any knowledge of the documents which the Third Respondent tendered as evidence in support of its contention that consultation meetings were held with NUMSA and LEWUSA.

[17] He had learnt that some employees were since re-employed by the Third Respondent. He was unhappy about being retrenched when some employees with less service had been retained. He could not provide any of the names of these employees or who were they. He testified that he was simply told that he was being retrenched during workshop meetings. He claimed that ‘the trade unions LEWUSA and NUMSA did not inform them of anything, they then decided to “jump” (sic) to UCIMESHAWU as they felt that their trade unions were suppressing them in the manner and the way they were dealing with the dismissals’. He conceded that when the Third Respondent received the letter from UCIMESHAWU, it had already concluded the retrenchment process and the decision to retrench had already been taken in August 2008.

[18] He claimed he joined UCIMESHAWU on 5 April 2008 and paid the trade union levies personally to UCIMESHAWU. The letter of 4 October 2008 was the first letter written to the Third Respondent on behalf of the Applicants. It was the Third

Respondent’s problem that they were unaware that he was a member of UCIMESHAWU. He could not provide any proof that he was a member of UCIMESHAWU and replied that even if there was no such proof it was his right to belong to the trade union of his choice.

[19] Elliott Mbatha testified that he commenced employment at the Third Respondent in 2002 as a machine operator. He was a member of NUMSA and had no idea whether the Third Respondent had consulted with NUMSA on his behalf. On 4 October 2008, he attended the offices of UCIMESHAWU and advised them that he was being retrenched and sought their assistance.

[20] Section 189 (1) of the Labour Relations Act 66 of 1995 defines who should be consulted during the process of retrenchments. The section provides as follows:

(1) When an employer contemplates dismissing one or more employees for reasons based on the employer's operational requirements, the employer must consult-
(a) any person whom the employer is required to consult in terms of a collective agreement;
(b) if there is no collective agreement that requires consultation, a workplace forum, if the employees likely to be affected by the proposed dismissals are employed in a workplace in respect of which there is a workplace forum;
(c) if there is no workplace forum in the workplace in which the employees likely to be affected by the proposed dismissals are employed, any registered trade union whose members are likely to be affected by the proposed dismissals;
(d) if there is no such trade union, the employees likely to be affected by the proposed dismissals or their representatives nominated for that purpose.

[21] The hierarchy as set out in terms of the section 189 is clear.

[22] Section 189 (1) (c) is pertinent in this instances and provides that when an employer contemplates dismissing one or more employees for reasons based on the employer’s operational requirements, the employer must consult, if there is no workplace forum in the workplace in which the employee is likely to be affected by the proposed dismissals are employed, any registered trade union whose members are likely to be affected by the proposed dismissals.

[23] In Singh v Mondi Paper,[1] where the employees who were unhappy with the manner in which the trade union had dealt with the consultations the Court held ‘they chose their representation and must stand or fall with it’. It was upon the Applicants to timeously inform the Third Respondent that they sought to be represented by another trade union as they were unhappy with the manner that they had dealt with the consultations.

[24] The Third Respondent only became aware of UCIMESHAWU after it had concluded the consultation process with the representative trade unions. The correspondence between UCIMESHAWU and the Third Respondent showed that it was only at this late stage that the trade union requested that the Third Respondent deduct subscriptions from their salaries. This was during an agreed extended notice period.

[25] In casu, we are not dealing with the situation of a failure to consult with the representative trade union whose members are likely to be affected or a consideration of whether an employer is obliged to consult with a majority trade union only and not with a minority trade union. The Applicants could not show that they were members of a trade union other than the trade union in the workplace namely LEWUSA and NUMSA. The Third Respondent had showed that it had consulted with the representative trade union.

[26] It appears that the Applicants, on their own admissions, were unhappy with the way their trade unions, namely, LEWUSA and NUMSA had dealt with the consultations without indicating any specific circumstances and decided to seek assistance from another trade union namely, UCIMESHAWU. The Applicants main contention was that the Third Respondent failed or refused to consult with the trade union of their choice.

[27] The documents or the lack thereof showed that, at the time of the conclusion of the consultations, they were not members of UCIMESHAWU and the contention that they were members as early as April 2008 is without merit and a fabrication for the purpose of these proceedings. The trade union itself could not present any proof that the Applicants were their members at the time when the consultations were held but only an application that subscriptions be deducted from October 2008. It follows then that there was no obligation for the Third Respondent to consult with the UCIMESHAWU when termination letters had already been given to the employees. There was, further, no obligation to consult with the trade union of their choice subsequent to the conclusion of the process with the registered trade union of which they were members.

[28] For the sake of completion, I will deal with the issue of selection criteria. The Third Respondents showed that, in terms of the minutes of the consultation meetings, the parties agreed on LIFO as the selection criteria. In terms of the pre- trial minute, the Applicants undertook to provide the names of employees whose employment were retained whilst they had shorter service. The Applicants further undertook that they would call two witnesses to prove the aforesaid. None of this occurred during these proceedings.

[29] It is common cause that neither LEWUSA nor NUMSA referred any disputes consequent to the retrenchment process and is telling that the process was deemed fair and acceptable to it on behalf of its members.

[30] In the light of the above, I am satisfied that the Third Respondent has showed that there was no obligation to consult with UCIMESHAWU. The Applicants  could not dispute that consultations had indeed taken place with their representative trade union and the provisions of section 189 were complied with. The Applicants agreed that the consultations process was concluded by the time they had approached UCIMESHAWU. The Applicants did not dispute that a major contract had been cancelled and that they were placed on short time as a result of the ailing business and financial difficulties that the Third Respondent was facing. The selection criteria of LIFO was agreed upon by the Third Respondent and the representative trade union. There is no evidence that the application of the LIFO principle was not a fair and objective criteria.

[31] In the circumstances, the Applicants claim should be dismissed.

Costs

[32] The Respondent sought a punitive costs order against the Applicant (UCIMESHAWU) on the basis that they had to defend a matter that had no merit from the start. Section 162 of the LRA provides that this Court may make an order of payment of costs according to the requirements of law and fairness. The Respondent was brought to this Court and successfully defended the claim. There is no reason in law or fairness for not granting costs against the unsuccessful party. In the circumstances, the Applicant should pay the costs of the Respondent.

Order:

[33] In the premises, the following order is made:

1.            The Applicant’s claim that their dismissal on the grounds of operational requirements was substantively and procedurally unfair is dismissed with costs. [NM1] 

________________

Walele AJ

Acting Judge of the Labour Court of South Africa

Appearances.

For the Applicant:                        Mr M.E. Ngubane

Instructed by:                               Union Official (UCIMESHAWU)

For the Respondent: Advocate:  JP Prinsloo

Instructed by:                              De Villiers Du Plessis Attorneys

---

---

---