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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JS 1027/15

In the matter between:

SUSAN MARGARET VAN DYK                                                                            Applicant

and

ZEDA CAR LEASING (PTY) LTD t/a AVIS FLEET                                           Respondent

Heard:          28 August 2017      

Delivered:    25 January 2018

Summary:    Procedurally unfair dismissal for operational requirements – applicant was faced with fait accompli.

JUDGMENT

NKUTHA-NKONTWANA J:

Introduction

[1] In this lawsuit, the applicant (Ms Van Dyk) seeks an order declaring that her dismissal by the respondent (Avis) is automatically unfair in terms of section 187(1)(f) of the Labour Relations Act (the LRA);^[1] alternatively, that her dismissal is substantively and procedurally unfair in terms of section 189 of the LRA. The issues for determination are as follows:

1.1.          Whether Ms Van Dyk was unfairly dismissed by Avis on the ground of unfair discrimination on the basis of conscience and belief in terms of section 187(1) of the LRA. She alleges that her dismissal resulted from a challenge and grievance lodged against the Respondent’s Business Development Executive, Mr Albert Geldenhuys (Mr Geldenhuys);

1.2.          Alternatively, whether the dismissal of Ms Van Dyk was operationally rational and/or effected in accordance with a fair procedure. She alleges that there was no bona fide reason for her dismissal; and the consultation was deficient, insensitive and rushed in order to deliberately get rid of her.

Factual background

[2] Ms Van Dyk commenced employment with Avis on 13 February 2006. She was promoted to a position of General Manager: Key Accounts on 1 May 2013 reporting to the Executive Director: Sales. Ms Laura Friebe (Ms Friebe) who was appointed as a General Manager: New Business Acquisitions in the same department and same level as Ms Van Dyk. 

[3] As a General Manager: Key Accounts, Ms Van Dyk was supervising a division of the sales portfolio known as “Carers” which, were required to attend to the varying needs and requirements of the clientele once their business had been sought and secured.  On the other hand, Ms Friebe was responsible for the supervision of the sales portfolio known as “Hunters” which was required to seek and secure new business and pass the clientele to the Caring Division. It is common cause that Ms Van Dyk also had Hunters reporting to her but the majority of her portfolio required the supervision of the Caring Division, a bigger division compared to the Hunting Division.

[4] It is also common cause that both Misses Van Dyk and Friebe (the General Managers) were equally competent and had the necessary skills to undertake and execute their duties effectively. However, the General Managers had, on an ongoing and sustained basis, various business related differences.  Mr Edward Enslin (Mr Enslin), Mr Geldenhuys predecessor, had had to intervene in many occasions with a view to resolve the differences of opinion between the General Managers.

[5] It is not disputed that the Sales Division had been financially viable when Mr Geldenhuys took over. That was so despite the considerable differences of opinion between the General Managers. Mr Geldenhuys began to observe the ongoing discord and disharmony between the General Managers and believed that it was not in the business interests of the respondent, neither was it conducive to a proper and effective interaction between the two of them, for this disharmony to remain unaddressed. As a result, the services of an external facilitator, Mr Bruce Weyers (Mr Weyers) were secured to facilitate a conflict resolution session in order to resolve the differences and disharmony between the General Managers.

[6] Prior to the conflict resolution session, on 10 June 2015, Ms Van Dyk had a disagreement with Mr Geldenhuys over a trail of emails between the General Managers that had been escalated by Ms Friebe. She testified that Mr Geldenhuys lost his temper and slammed the table at her. Out of frustration she sought guidance from Mr Enslin on how to handle the situation as she was of the view that Mr Geldenhuys preferred Ms Friebe over her. Mr Geldenhuys conceded that his conduct was out of line but had apologised to Ms Van Dyk. Subsequently they both agreed to a more open conversation.

[7] The conflict resolution session with Mr Weyers was held on 15 July 2015. According to Ms Van Dyk, the intervention was successful but Mr Geldenhuys disputed that and it would seem that Ms Friebe also held a different view. On 13 August 2015, Mr Geldenhuys, addressed a letter to both the General Managers requesting them to set out, in some detail, their view of the status quo and whether they believed that they could effectively and meaningfully interact with one another in the future and whether the situation was, indeed, remediable.

[8] Ms Van Dyk testified that she was surprised by the sudden turn of events because there had been good will gestures by both the General Managers toward building a better relationship.  At that point she also felt that her career was in jeopardy. She was not warned about the adverse consequences in the event the conflict was not resolved. In her response, Ms Van Dyk was adamant that the department was doing well and nothing had changed; that the conflict between the General Managers had no impact on their teams. On the other hand, Ms Friebe was of the view that the teams were operating in silos which was extremely difficult for her to carry on in that difficult environment.

[9] Ms Van Dyk testified that, on 17 August 2015, Mr Geldenhuys came to her office and informed her that had been wrongly advised by HR and, as such, had no intention to take the matter any further. Mr Geldenhuys testified that he had no recollection of this discussion. Nonetheless, Ms Van Dyk thought the matter was put to rest. 

[10] Mr Geldenhuys testified that the option of introducing a new structure that merged the two general manger positions into one was discussed for the first time in a Management Committee (Manco) meeting that took place on 7 September 2015. A possibility to retain both General Managers because of their experience and skills was also discussed and Ms Van Dyk was considered for a position in Operations. His ultimate goal was to grow the market base and business. He also wanted to dive a new brand culture consequent to the Yellowwood initiative which had commenced under the management of Mr Enslin, where different approaches had been mooted and discussed with a view to adapting the manner in which business had been undertaken in order to ensure that Avis remained viable and competitive.

[11] Mr Geldenhuys’ move was also driven by the commission structure which at that time was disproportionate. The National Sales Division’s meeting of 19 August 2015, was spent discussing the commission structure and in particular the discrepancies weighting of commissions between the Hunting and Caring teams. A robust discussion had also taken place with regard to the facilitation and the transfer of clients from Hunters to Carers but although this was robust, direct and very often heated, it remained professional at all times.

[12] On 8 September 2015, Mr Geldenhuys and Ms Van Dyk had a one-on-one meeting. According to Ms Van Dyk it was a standard practice to meet and the agenda for the day had 24 items. Towards the end of the meeting Ms Van Dyk raised the plans in the sales team to allow preparation for the new financial year starting 1 October 2015. Mr Geldenhuys briefly mentioned to her that he was considering some changes to the structure, but would let her know when he had more details. It was then that he asked, in passing, whether Ms Van Dyk would consider another role elsewhere in the organisation to which she replied ‘no’, as believed that she was best as a sales person.

[13] On 10 September 2015, Mr Geldenhuys called a planning meeting with the General Managers. Ms Van Dyk testified that she had enquired about whether there was a need to prepare for the meeting; she was told “no, just bring an open mind”.

[14] Ms Van Dyk’s evidence is that Mr Geldenhuys commenced this meeting by stating that “I don’t know how to say this, but one of you has to go”, an utterance made whilst standing. Then he expressed a view that Ms Friebe was the more natural salesperson and he looks to her for that.

[15] Mr Geldenhuys denied having conducted himself in the manner described above. He testified that he consulted with the General Managers on the proposed structural changes and that the status quo was not something which would work in the future. He also considered a possibility of creating two similar teams with both the Hunters and Carers reporting to the General Managers but that was discounted because of the competition between the General Managers. He then proposed a merger of the two General Manager positions into one with the incumbent managing both teams of Hunters and Carers. Ms Van Dyk testified that she proposed that a Service Level Agreement (SLA) between the General Managers in order to address concerns with regard to the passing of clients between their teams.

[16] The next day, Mr Geldenhuys called Ms Van Dyk to inform her that the SLA proposal was not a viable option to address the structural issues. On 14 September 2015, Mr Geldenhuys held separate meetings with each General Manager. It was Ms Van Dyk’s testimony that, given the manner in which Mr Geldenhuys had conducted himself and having clearly stated that he preferred Ms Friebe, she was of the view that the impending changes were based on personal preferences rather than a business rationale. Hence, she had asked him that if he didn’t want her in the sales environment, he should make her an offer that she could not refuse.

[17] Mr Geldenhuys testified that the next step was to implement the structure and the issue at that time was who would be the best candidate for the new position. On 17 September 2015, he authored a letter which was addressed to the General Managers but furnished to Ms Van Dyk on 18 September 2015. In that letter Mr Geldenhuys addressed the following:

17.1.       The restructuring was as a result of the operational and functional structure of the Sales Division, particularly, of the Hunters and Carers;

17.2.       Another consideration was the ongoing sustained difficulties that had been experienced with regard to the lack of cohesion and interpersonal communication which have arisen and continued to exist between the General Managers.

17.3.       Mr Geldenhuys’ original reservations were reinforced in the facilitation that had been undertaken using the external facilitator and the correspondence he had received on the issue from the General Managers.

17.4.       Therefore, Manco had come to a conclusion that the two positions be merged into one General Manager to supervise both Hunters and Carers. 

17.5.       That the General Managers would be the only candidates for the position concerned given their experience and the fact that it entails consolidations and integration of their current functions and duties.

17.6.       Invitation to express an interest by submitting a detailed application, alternatively and without prejudice, opt for a severance voluntary package to be calculated in terms of the Avis policy. The deadline for the applications was 25 September 2015. The General Managers were also encouraged to record any reservations or concerns with regard to the proposed structure.

[18] On 22 September 2015, Ms Friebe applied for the new position of General Manager Sales: Gauteng. On the same day, Mr Geldenhuys called Ms Van Dyk and asked if she was comfortable with being given a figure of the proposed severance package over the phone and her answer was ‘no’. It was his evidence that there had been a severance package discussion with Ms Van Dyk between 17 and 25 September 2015.

[19] Ms Van Dyk sought legal advice, so she testified. On 23 September 2015, Mr Geldenhuys attempted yet again to discuss the severance package with Ms Van Dyk who was off sick. She was not keen to do that as she was indisposed at that time.

[20] On 25 September 2015, Ms Van Dyk’s attorneys sent a letter to Avis raising concerns about the process and sought to be favoured with the documents that informed the decision to restructure the Sales Division. In another communication sent to Avis on the same date, her attorneys made a separation offer of about R4 000 000.00, “without prejudice”. Avis did not respond to both letters.

[21] Mr Geldenhuys testified that when Ms Van Dyk failed to submit her application on 25 December 2015, Avis was left with no option but to implement the structure as proposed and appoint Ms Friebe. With regard to Ms Van Dyk, a retrenchment process was triggered.  He conceded, however, that he was always alive to the fact that one of the General Mangers was going to be redundant if not successful had both candidates applied.

[22] On 1 October 2015, Ms Van Dyk was served with a notification in terms of section 189(3) of the LRA, dated 30 September 2015 requesting a consultation the following day. On the same day, Ms Van Dyk received a letter informing her of the salary increase for the following year.

[23] Indeed, on 2 October 2015 a consultation process was held. Ms Van Dyk handed Messrs Geldenhuys and Van Zijl her written responses to the issues raised in the letter dated 30 September 2015. It is common cause that she did most of the talking in that meeting. The next consultation was scheduled for 8 September 2015. 

[24] Ms Van Dyk lodged a grievance the same afternoon, on the advice of Pregashnie Naidoo who was the Organisational Development Manager at the time and currently the Executive for Human Resources. The grievance submitted on 2 October 2015 raised various historical concerns about Mr Geldenhuys’ behaviour and pertinently the manner in which he conducted the retrenchment process as a whole.

[25] On 8 October 2015, a further consultation process was held. The main issue discussed was the issue of severance pay. Avis presented an offer in a form of a severance agreement. Ms Van Dyk requested time to take guidance from her legal advisors and husband before making any decision. She was granted the indulgence up until the following Monday, 12 October 2015.

[26] On the same day, Avis sent out a notice to all its staff members titled “Restructure of the Avis Fleet Sales Department” which announced the departure of Ms Van Dyk from 12 October 2015. Ms Van Dyk testified that she deemed it unnecessary to revert back to Avis with regard to the final severance package offer as promised; it was evident that Avis had already made a decision to dismiss her. On 13 October 2015, Ms Van Dyk was served with a formal letter terminating her employment with Avis due to operational requirements.

[27] On 15 October 2015, Ms Van Dyk referred an unfair dismissal dispute to the CCMA. The next day she informed Avis that she did not want to pursue the grievance as she had referred the dispute to the CCMA.

Legal principles and application in relation to operational requirements

[28] One of the issues for determination is whether there was a justifiable reason for the retrenchment or whether the dismissal was operationally rational.  In BMD Knitting Mills (Pty) Ltd v SACTWU,[2] the LAC as per Davies, AJA (as he was then) stated that:

‘The starting point is whether there is a commercial rationale for the decision. But, rather than take such justification at face value, a court is entitled to examine whether the particular decision has been taken in a manner which is also fair to the affected party, namely the employees to be retrenched. To this extent the court is entitled to enquire as to whether a reasonable basis exists on which the decision, including the proposed manner, to dismiss for operational requirements is predicated. Viewed accordingly, the test becomes less deferential and the court is entitled to examine the content of the reasons given by the employer, albeit that the enquiry is not directed to whether the reason offered is the one which would have been chosen by the court. Fairness, not correctness is the mandated test.’ (Emphasis added).

[29] In essence, the enquiry on commercial rationality is to determine whether retrenchment is properly and genuinely justifiable by operational requirements in the sense that it was a reasonable option in the circumstances.

[30] Section 213 of the LRA defines operational requirements as requirements based on the economic, technological, structural or similar needs of an employer. In this case, there were three reasons proffered by Avis for the structural change in the Sales Division. The Yellowwood recommendations; the discrepancies in commission paid between the Hunters and Carers; and the conflictual relationship between the General Managers.

[31] Mr Geldenhuys testified that by creating one General Manager position, he wanted to drive and grow the business by driving a new brand culture that came out of the Yellowood project. This evidence was corroborated by Mr Van Zijl. However, Mr Geldenhuys conceded under cross examination that there were no structural recommendations or changes that emanated from the Yellowwood project. In fact, the Yellowwood, a branding company, was commissioned during Mr Enslin’s time and he had commenced implementing their recommendations.

[32] It is common cause that the commission disparity between the Hunters and Carers has been raised as a subject matter in the conflict between the General Managers for many years. Mr Geldenhuys testified that having one General Manager was a perquisite for the implementation of a new commission structure as it would have been difficult under the circumstances that prevailed at that time because of the General Managers’ interpersonal differences.

[33] Ms Van Dyk was adamant that the interpersonal differences did not affect the operations of the Sales Division as it remained viable, notwithstanding. She testified that the timing of the restructuring was not supported by the reality that prevailed at that time. Mr Weyers’s conflict resolution process had had positive effect, in her view. Also the structure was yielding result and her view was that ‘why fix it if it is not broken’. She was not opposed to the structural changes but had a different opinion and had expressed her misgivings with regard to the procedure that had been undertaken by Avis.   

[34]          It is a common that the source of conflict which had arisen between the General Managers pertained to the handover of clients once the business had been duly secured by the Hunters, supervised by Ms Friebe, to the Carers, supervised by Ms Van Dyk. It is also not in dispute that most of the debate and disagreements between the General Managers stemmed from the extent, duration and basis in respect of which the Hunters would continue to share in the commission which was earned, the proportion thereof and when, ultimately, the hunters would be required to let go of a particular transaction.

[35] To my mind, if the manner in which the hunting and caring teams were constituted was the source of the conflictual relationship between the General Managers, then it would seem the structural change was the only solution. Mr Geldenhuys testified that having both teams reporting under one General Manager has yielded the result because the commission is now divided equally between the teams.

[36] I accept that this may not be a typical reason in retrenchment cases but the ultimate goal was to resolve structural challenges that had been affecting Avis’ operations. It is not for the Court to decide whether it was the best decision under the circumstances, but only whether it was a rational commercial or operational decision, properly taking into account what emerged during the consultation process as stated in SA Clothing and Textile Workers Union and Others v Discreto - A Division of Trump and Springbok Holdings.[3] The LAC stated further that:

‘For the employee fairness is found in the requirement of consultation prior to a final decision on retrenchment. This requirement is essentially a formal or procedural one, but, as is the case in most requirements of this nature, it has a substantive purpose. That purpose is to ensure that the ultimate decision on retrenchment is properly and genuinely justifiable by operational requirements or, put another way, by a commercial or business rationale. The function of a court in scrutinising the consultation process is not to second-guess the commercial or business efficacy of the employer’s ultimate decision (an issue on which it is, generally, not qualified to pronounce upon), but to pass judgment on whether the ultimate decision arrived at was genuine and not merely a sham (the kind of issue which courts are called upon to do in different settings, every day). The manner in which the court adjudges the latter issue is to enquire whether the legal requirements for a proper consultation process has been followed and, if so, whether the ultimate decision arrived at by the employer is operationally and commercially justifiable on rational grounds, having regard to what emerged from the consultation process.”

[37] Ms Van Dyk’s main bone of contention pertained to the procedure that was followed leading to her dismissal. It was contended on her behalf that she was confronted with a ‘fait accompli’.

[38] Section 189(1)(d) of the LRA enjoins an employer who contemplates dismissing one or more employees for reasons based on the employer’s operational requirements to consult with the employees likely to be affected by the proposed dismissals or their representatives nominated for that purpose. Section 189(2) provides that consulting parties must engage in a meaningful joint consensus-seeking process and attempt to reach consensus on the following:

“(a)       Appropriate measures –

i)          To avoid dismissals;

ii)         To minimise the number of dismissals;

iii)        To change the timing of the dismissals; and

iv)        To mitigate the adverse effects of the dismissals;

(b)        The method for selecting the employees to be dismissed;[4]

(c)        The severance pay for dismissed employees.

[39] In SASBO v Standard Bank of SA,[5]  in obiter, the Court stated that:

“It is trite law that when employees are confronted with a fait accompli any subsequent consultations may be fatally flawed.^[6] A fait accompli in the context of retrenchments manifests itself typically when an employer takes unilateral action which forecloses the prospect of meaningful consultation on one or more of the issues in respect of which it ought to consult. Under such conditions a …party that is asked to consult where the employer has taken such action may rightly cry "foul".

[40] In this case, it is important to establish exactly when the consultation process commenced. In Discreto[7] the LAC stressed that one of the requirements of a proper consultation process is that consultation must precede a final decision on retrenchment because it is not easy to forestall what might emerge from the consultation process and to what extent these results might influence a final decision. On the contrary, once a decision is taken without consultation, any representation after the event will be met with the natural reaction to justify the original decision.[8]

[41] According to Avis, the consultation process commenced on 10 September 2015 in a meeting called ‘planning session’. It is not in dispute that the General Managers, or at least Ms Van Dyk, attended that meeting without a pleasure of knowing what was going to be discussed. In fact, she testified that her attempts to solicit the agenda were unfruitful. Instead she was told that she must bring ‘an open mind’. This evidence was not disputed.

[42] The Manco’s decision of 7 April 2015 to restructure the Sales Division was communicated to the General Managers for the first time in that meeting. Clearly, the consultation commenced lurching. The discussion that ensued could not have been meaningful since Ms Van Dyk was not afforded an opportunity to prepare her responses. There is no way that Ms Van Dyk could have been in a position to meaningfully engage on the options that were presented as contended by Avis. Nonetheless, she did not shy away from engaging, for whatever reason, and put forward her views on the proposed changes.

[43] On 11 September 2015 Mr Geldenhuys telephonically rejected Ms Van Dyk’s suggestion that an SLA be considered. Hence, the meeting of 14 September 2014 did not discuss much. The severance package discussion was thrown in by Ms Van Dyk clearly to tease Mr Geldenhuys in order to get him to disclose his intentions. But nothing turns on that as Avis had a duty to consult on alternatives short of dismissal and selection criteria, if at all. That never happened.  

[44] On the contrary, Avis went ahead to implement the new structure, so was Mr Geldenhuys’ evidence. As mentioned above, his letter of 17 September 2015 formally communicated that decision in final terms. The General Managers were also told to apply for the consolidated position, supposedly as a selection criterion.

[45] Mr Geldenhuys testified that the skill and experience base of both General Managers was comparable. The new position was just a merger of the General Managers’ positions with no additional responsibilities. In fact, the General Managers in other regions had always managed both teams of Hunters and Carers. Ms Van Dyk herself was also managing Hunters outside Gauteng. No other person within the organisation was invited to apply.

[46] Avis’ argument that the letter of 17 September 2015 did not reflect a final decision on its part is untenable. Despite an invitation for more input from Ms Van Dyk on the process, her attempts to engage further were ignored. Through her attorneys’ letter of 25 September 2015, she raised legitimate concerns about the consultation process and what had emerged out of it at that time. That was a correct approach in view of SASBO. There is no evidence that there were pressing issues that would have made it difficult to extend the deadline for applications, which was 25 September 2015. The Sales Division was doing well and the customer feedback was positive at that time, this was Van Dyk undisputed evidence. I, therefore, align myself with the following sentiments expressed by Van Niekerk J in Van Rooyen and Others v Blue Financial Services (South Africa) (Pty) Ltd[9]:

‘While from the perspective of substantive fairness this court has recognised an employer’s right to restructure for reasons relating to profitability and increased efficiency as opposed to reasons which threaten the financial viability of the business, it seems to me that in the former case, the obligation to give serious consideration to reasonable proposals made by employees or their representatives, especially in relation to alternatives to retrenchment and the prospects of accommodation in alternative employment is more onerous. This is not a case where any delay in the consultation process would have resulted in unsustainable losses for the respondent, or which might otherwise have justified bringing the consultation process to an abrupt end.’

[47] Even in this case, the consultation process came to a rushed end as Avis went ahead and appointed Ms Friebe without considering Ms Van Dyk’s reservations.

[48] Also, there was no meaningful endeavour on the part of Avis to accommodate Ms Van Dyk in any alternative position. The only time the issue of an alternative position was casually mentioned was before the letter of 17 September 2015. That discussion could not, in any way, be viewed as consultation on meritorious alternatives to avoid dismissal. As it turned out, even the promise of a position in Operations never materialised. No other positions were ever tabled for discussions subsequently.

[49] As mentioned above, seemingly having both teams reporting under one General Manager has yielded the result. In my view, if the option of splitting the teams into two teams of both Hunters and Carers reporting both General Managers was properly considered, it would have yielded the same result and avoided Ms Van Dyk’s dismissal

[50] The consultation meetings on 2 and 8 October 2015 were just a mere formality and could not have remedied procedural defects. Even at that time, Avis was oblivious to its obligation, which was more onerous given the reason for the structural changes, to consult over alternative employment and by all means endeavour to accommodate Ms Van Dyk. Mr Geldenhuys instead accused her of having ‘deselected herself’ from the selection process by not applying for the new position.

[51] Overall, no meaningful joint consensus-seeking process occurred and Avis is the culprit.[10] Avis failed to sufficiently consult on alternatives to retrenchment and selection criteria; and failed to accommodate Ms Van Dyk in an alternative position. I am persuaded that Ms Van Dyk was indeed presented with a fiat accompli. For these reason, her dismissal was procedurally unfair.

Unfair discrimination

[52] Given the findings that I have come to above, ordinarily it would not be necessary to deal with Ms Van Dyk’s claim that she was unfairly dismissed by Avis on the basis of unfair discrimination based on conscience and belief in terms of section 187(1) of the LRA. I do so, though, for completeness sake.

[53] Ms Van Dyk pleaded in her statement of claim that her dismissal resulted from a challenge and grievance lodged against the Respondent’s Business Development Executive, Mr Geldenhuys. However, it was her evidence that she withdrew the grievance on her attorneys’ advice because she had already referred a case to the CCMA. Also the grievance was only lodged on 2 October 2015 and formally on 6 October 2015. Mr Van Zijl testified that he did seek an external person to attend to the grievance but that had to be abandoned due the withdrawal of the grievance. 

[54] Typically, where it is common cause that there was a dismissal, the employer bears the onus to prove that the dismissal was for a fair reason permitted in section 188 of the LRA. However, where an employee alleges that a dismissal was automatically unfair, it is incumbent upon that employee to demonstrate, prima facie, the said claim.[11]

[55] In view of the above, despite having no onus to prove the reason for her dismissal, the applicant failed to discharge the evidential burden by placing sufficient evidence to show that the dominant or ancillary reason for her dismissal was that the respondent discriminated against her based on one or more of the listed grounds in terms of section 187(1)(f).^[12]  Put differently, the applicant has failed to show, prima facie, that ‘but for’ the grievance she had lodged, she would not have been dismissed. If follows that Ms Van Dyk’s claim that her dismissal was automatically unfair must fail.

Relief

[56] Since I have made a finding on procedure only, the relief is only limited to compensation.

[57] Ms van Dyk testified that she is currently employed, a position she secured in August 2016 but is more junior in level and she is paid less than her previous position by half.  She had also spent her provident fund to finance the litigation against the company which had a gruelling impact on her personally.

[58] On the other hand, Avis argued that it had earnestly attempted to settle the matter to no avail. As such an amount of R500 000.00 in lieu of severance pay is placed in its attorneys’ trust account.

[59] In arriving at the amount of compensation Ms Van Dyk is entitled, I have considered the magnitude of the procedural defects committed by Avis, particularly, and a compensation amount that is fair to both parties.[13] Ms Van Dyk was presented with a fiat accompli. Avis efforts to comply with section 189 were extremely inadequate. Even though Ms Van Dyk did not apply for the new consolidated position of a General Manager, she testified that she was interested but had genuinely raised concerns with the consultation process.

[60] Also Ms Van Dyk’s stance during the settlement discussions is understandable and no adverse inference should be drawn against her, especially now that she has successfully vindicated her rights.

[61] The exact amount Ms Van Dyk was earning is in dispute. At the hearing of this matter, both counsels promised to attempt to reach census on this issue to no avail. Both parties were accordingly requested to file supplementary heads of arguments in this regard.

[62] In her written submissions filed on 7 December, Ms Venter for Ms Van Dyk, submitted her remuneration ration should be calculated as follows:

62.1.       Annual guaranteed pay of R1 240 726, including the car allowance of R13 176.36 (calculated monthly at R103 393,83); plus

62.2.       An annualised aggregate commission of R357 524.40 (calculated monthly at R29 793,70).

[63] The total annualised remuneration is R1 598 250.40 (calculated monthly at R133 187,53).

[64] On the other hand, in his written submissions, Mr Soldatos, for Avis, submitted that Ms Van Dyk’s remuneration should be calculated as follows:

64.1.       Annual cost to company package, including a car allowance of R12 951.00, is R1 159 288.32; plus

64.2.       Monthly commission of R16 655.22 which is an average figure of the commission paid to Ms Van Dyk during the three months (13 weeks) prior to her dismissal. 

[65] The total annualised remuneration is R1 359 150.96.

[66] Clearly the parties differ in terms of the calculation of the car allowance and the average commission components of Ms Van Dyk’s total remuneration. The car allowance figure provided by Ms Van Dyk is based on her pay slip. While there is no evidence proffered to support Avis’ figure. Also, with regards to the calculation of the average commission, the figure provided by Ms Van Dyk includes the payment of an amount of R18 393.00 for the commission that had been short paid in September 2015 and confirmed as such by Mr Geldenhuys in his email dated 4 December 2015. As such, Avis’ explanation that this amount did not form part of Ms Van Dyk’s remuneration must be rejected.  

[67] I accept that Ms Van Dyk’s annual remuneration is R1 598 250.40.

Costs

[68] There is no reason why costs should not follow the result. Ms Van Dyk was placed in an unenviable position where she had to use her provident fund to finance this litigation against Avis, a big company, with better resources to resist her claim.   

[69] In the premises, I make the following order:

Order

1.         Ms Van Dyk’s claim that her dismissal was automatically unfair is dismissed.

2.         The dismissal of Ms Van Dyk based on Avis’ operational requirements is procedurally unfair.

3.         Ms Van Dyk is awarded compensation of R1 331 875, 30 (One million three hundred and thirty one thousand eight hundred and seventy five rand and thirty cents.) which is equivalent to 10 months’ remuneration calculated on the basis of the rate of her annual remuneration which is R1 598 250.40 (One million five hundred and ninety eight thousand two hundred and fifty rand and forty cents).

4.         Avis is to pay the costs of this litigation.  

____________________

   Nkutha-Nkontwana J

Judge of the Labour Court of South Africa

Appearances:

For the applicant:                              Advocate T Venter

Instructed by:                                    Bouwer Cardona Inc.

For the respondent:                          Mr A Soldatos

Attorney from:                                   Fluxmans Incorporated

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