Association of Mineworkers And Construction Union (AMCU) and Another v Manganese (J332 /16) [2016] ZALCJHB 105 (18 March 2016)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA

JOHANNESBURG

Case No: J332 /16

DATE: 18 MARCH 2016

Not Reportable

In the matter between:

ASSOCIATION OF MINEWORKERS AND

CONSTRUCTION UNION (AMCU).............................................................................First Applicant

AMCU MEMBERS AS PER

ANNEXURE “PDMS”..............................................................................Second to further Applicants

And

TSHIPI E NTLE MANGANESE

MINING (PTY) LTD.............................................................................................................Respondent

Heard: 1 March 2016

Delivered: 18 March 2016

Summary: Application in terms of the provisions of section 189A (13) of the Labour Relations Act. Dispute of fact. Referred for oral evidence.

Judgement

PRINSLOO, J

Introduction:

[1] The Applicants approached this Court on an urgent basis in terms of the provisions of section 189A(13) of the Labour Relations Act[1] (LRA) seeking the following relief:

a. An order compelling the Respondent to comply with a fair procedure which procedure includes engaging in proper and meaningful consultation with the Applicants on means to avoid retrenchment and on selection criteria;

b. Interdicting the Respondent from retrenching the individual Applicants until such time the Respondent has complied with a fair procedure;

c. Directing the Respondent to re-instate the individual Applicants until such time the Respondent has complied with a fair procedure;

d. Alternatively, that the Respondent be ordered to make payment of 12 months’ compensation.

[2] The application is opposed.

Brief history:

[3] It is common cause and appears from the documentation attached to the Applicant’s founding affidavit that on 4 and 10 November 2015 the Respondent issued an invitation to consult notice in terms of section 189(3) of the LRA to its employees and the First Applicant (‘AMCU’). Attached to the said notice was a list of job categories likely to be affected.

[4] On 9 November 2015 the Respondent submitted a request for facilitation to the Commission for Conciliation, Mediation and Arbitration (‘CCMA’) and four facilitated consultations were held at the CCMA in Kimberley between November 2015 and January 2016 and three unfacilitated consultations were held in Kathu during the same period.

[5] Between 4 to 8 February 2016 the individual applicants were dismissed and on 23 February 2016 AMCU filed this application in terms of the provisions of section 189A (13) of the LRA.

[6] The crux of the application is that the Respondent failed to comply with section 189 read with section 189A of the LRA during the retrenchment process in that the Respondent failed to engage the Applicants in proper and meaningful consultation in respect of means to avoid retrenchment and selection criteria.

[7] The Respondent raised two points in limine namely that the Court lacks jurisdiction and that the Court is precluded from adjudicating the dispute in that the dismissal of the employees was neither invalid nor a nullity and that there is a dispute of fact that is not only material, but also foreseeable, thus the Court is precluded from dealing therewith without referral thereof to trial or oral evidence.

[8] The Respondent further opposed the relief sought by the Applicants on the basis that the positions previously occupied by the individual Applicants whose notices of termination were issued on 4 February 2016, have ceased to exist in accordance with the Respondent’s revised operating structure. It would accordingly make little sense to reinstate individuals to positions that do not exist anymore and by granting such relief the Court would be recreating positions that ceased to exist.

[9] The Respondent submitted that the selection criteria it used was rational and fair and that a dispute around selection criteria concerns a substantive aspect and not a procedural issue, as the Applicants’ case is not so much that the criteria used was unfair, but the selection of employees by application of the criteria, which is a substantive issue. Substantive issues cannot be

adjudicated and decided in terms of the provisions of section 189A (13).

[10] In my view selection criteria could give rise to substantive or procedural disputes as it could relate to the fairness of the criteria, the fairness of the application of the criteria or consultation on the proposed method for selecting which employees to dismiss.

[11] The Applicants’ case in the application before me however is not based on the fairness of the selection criteria or the manner in which it was applied, but the fact that the Applicants were not consulted on the selection criteria. This would resort under a dispute in respect of the procedural fairness of the retrenchment.

The purpose of section 189A (13)

[12] Section 189A(13) reads as follows:

'If an employer does not comply with a fair procedure, a consulting party may approach the Labour Court by way of an application for an order —

(a) compelling the employer to comply with the fair procedure;

(b) interdicting or restraining the employer from dismissing an employee prior to complying with the fair procedure;

(c) directing the employer to reinstate an employee until it has complied with the fair procedure;

(d) make an award of compensation, if an order in terms of paragraphs (a)–(c) is not appropriate.'

[13] It is evident from the wording of section 189A (13) that where an employer does not comply with a fair procedure, the Labour Court

may be approached by way of an application. This is so even where a dispute of fact is foreseen.

[14] In Banks and another v Coca-Cola SA - A Division of Coca-Cola Africa (Pty) Ltd[2] the Court summarized the role of the Court in a section 189A(13) application as follows:

‘In short, the conclusion to be drawn from the wording of s 189A is that this court appears to have been accorded a proactive and supervisory role in relation to the procedural obligations that attach to operational requirements dismissals. Where the remedy sought requires intervention in the consultation process prior to dismissal, the court ought necessarily to afford a remedy that accounts for the stage that the consultation has reached, the prospect of any joint consensus-seeking engagement being resumed, the attitude of both parties, the nature and extent of the procedural shortcomings that are alleged and the like. If it appears to the court that little or no purpose would be served by intervention in the consultation process in one of the forms contemplated by s 189A(13)(a), (b) and (c), then compensation as provided by para (d) is the more apposite remedy’.

The urgent application

[15] The Applicants approached the Court on an urgent basis in terms of the provisions of section 189A (13) of the LRA, seeking the relief as set out in their notice of motion.

[16] The Respondent took issue with urgency. I do not intend to dwell much on the issue of urgency as any application brought in terms of section 189A(13) must be brought 'not later than 30 days after the employer has given notice to terminate the employee's services or, if notice is not given, the date on which the employees are dismissed'.

[17] An application contemplated by section 189A (13) is an application sui generis and in most instances, certainly where the remedies contemplated by section 189A (13) (a) to (c) are sought, the time periods contemplated by the rules of court in relation to applications would inevitably not apply. There is little point in affording an applicant the remedy of an interdict or an order directing an employer to reinstate an employee until it complies with a fair procedure, unless the application is accorded a degree of urgency and dealt with on that basis. Given the nature of the relief claimed by the Applicants in their notice of motion, I will deal with this matter as an urgent application.

[18] AMCU identified two broad complaints namely that the Respondent failed to engage the Applicants in a proper and meaningful consultation in respect of means to avoid retrenchment and selection criteria.

[19] The affidavits filed in support of and in opposition of the application are pertinent in deciding this matter.

[20] The Applicants’ case is that they sought to engage in meaningful consultation on means to avoid forced retrenchment and that they inter alia proposed that the Respondent consider the termination of certain contractors’ services or insourcing of such services. When the Applicants sought to consult on this, they were simply advised that the Respondent’s business was premised on an outsourced business model, that the Respondent did not have the capital and internal capacity to insource and manage core activities and the option of terminating contractor’s services were outright rejected and there was no attempt to explore the possibility or discuss the proposal further.

[21] The Applicants submitted that the Respondent’s refusal or failure to engage in proper consultation, thwarted the Applicants’ efforts to reach consensus on means to avoid retrenchment and that rendered the process unfair.

[22] The Respondent’s case on the other hand is that it consulted on the alternatives proposed, it provided the required information and stated the reasons why the proposal relating to termination of contractors was not feasible. The Respondent stated that the Applicants intended to drag out the consultation process to prevent the conclusion of the consultation process. The Respondent submitted that the Applicants refused to consult and thereby frustrated further consultations on outstanding issues.

[23] The second main issue raised by the Applicants relate to the Respondent’s failure to consult on the selection criteria.

[24] The Applicants’ case is that on 4 February 2016 the parties attended a further unfacilitated consultation meeting where the Respondent presented a document titled “Human Resources Update – Post consultation process to date – 25 January 2016” and from the said document it is evident that the selection process was to be undertaken by a panel and the document set out who should be represented on the panel and how the panel would apply the selection criteria.

[25] The Applicants took issue with the fact that the Respondent already retrenched employees on 4 February 2016, before the proposed process could be implemented and that the selection process in fact took place before 4 February 2016. The selection process followed differed from what was proposed in the Human Resource Update. The Applicants’ case is that no consultation took place in respect of the selection criteria and selection process as employees were retrenched on the same date or shortly after the proposed process was tabled.

[26] The Respondent on the other hand submitted that the Applicants refused to consult on selection criteria before finality was reached on the VSP process and avoidance measures and in the Respondent’s view, those issues were not and ought not to be used as impediments or hurdles in the way of proceeding with consultations on other equally important topics. The Applicants’ refusal to consult frustrated further consultations. The Respondent’s case is that had AMCU engaged on selection criteria instead of refusing to participate in consultations on the issue, the issues could have been raised and dealt with at that stage.

[27] It is evident from the facts as set out in the affidavits before Court that there is a material dispute of fact. On the one hand the Applicants contend a willingness to consult that is met by an employer that refuses to consult on the issues of measures to avoid retrenchment and selection criteria. On the other hand the Respondent contend not only willingness to consult, but also actual attempts to consult on the said issues, which is met by the Applicants who are set to frustrate and prolong the process.

Appropriate relief

[28] The four remedies established by section 189A(13) afford the court a wide discretion. The first two remedies namely a compliance

order and an interdict against dismissal clearly contemplate intervention by the court before a dismissal takes effect. The latter

remedies of reinstatement until there is compliance with a fair procedure or monetary compensation contemplate intervention after an employee has been dismissed. This provision is to be read with the time-limits established by section 189A(17). These contemplate

intervention by the court at a time that is appropriate given the circumstances of the case, and having regard to the particular remedy that is sought.

[29] Section 189A generally envisages that the court may be asked to intervene at any appropriate stage during a consultation process that has been initiated, or even prior to that.

[30] The conclusion to be drawn from the wording of section 189A is that this Court appears to have been accorded a proactive and supervisory role in relation to the procedural obligations that are attached to operational requirements dismissals. Where the remedy sought requires intervention in the consultation process prior to dismissal, the Court ought necessarily to afford a remedy that accounts for the stage that the consultation has reached. If it appears to the Court that little or no purpose would be served by intervention in the consultation process in one of the forms contemplated by section 189A(13)(a), (b) and (c), then compensation as provided by para (d) is the more apposite remedy.

[31] The individual applicants were dismissed with effect from 4 to 8 February 2016. The Applicants approached this Court on 1 March 2016 for the relief set out in the notice of motion. By the time this application was set down for hearing the individual applicants were dismissed for a period close to one month.

[32] In my view the horse has indeed bolted and the remedies provided for in section 189A (13)(a) and (b) are no longer feasible. The purpose of section 189A will not be served if I were to grant an interdict against dismissal and issue directions to compel the Respondent to comply with a fair procedure at this late stage. These remedies are inappropriate where the retrenchment process is completed.

[33] The Constitutional Court recently held in Steenkamp and others v Edcon Limited and others[3] that where an employer already dismissed employees without complying with a fair procedure, the consulting party may apply for an order reinstating the employees until the employer has complied with a fair procedure. In my view and based on the facts before me it will serve little purpose at this late stage to reinstate the individual Applicants until such a time that the Respondent complied with a fair procedure. This I say because the Applicants challenge the procedural fairness of their dismissal only in limited respects namely failure to consult on measures to avoid retrenchment and selection criteria. Where the fairness of the entire process is not challenged reinstatement would not be an appropriate remedy after the dismissals took effect.

[34] The process is concluded and the only remedy that remains and that is potentially available to the Applicants is an award of compensation as provided for in section 189A (13)(d).

[35] The alternative relief sought by the Applicants is indeed for maximum compensation.

[36] In casu there is a serious and material dispute of fact.

[37] Ms Collet for the Applicants argued that the dispute should be referred for oral evidence.

[38] Mr Lengane argued that the application should be dismissed as the Applicants should have foreseen a dispute of fact yet persisted with an application.

[39] To apply the normal rules as they are expressed in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd[4] may prejudice the Applicant, since it is not possible for the Court to grant final orders when material disputes of fact are disclosed on the papers. The Applicants had to file an application as provided for in section 189A (13). In Steenkamp v Edcon the Constitutional Court confirmed that: “Disputes about procedure under section 189A cannot be referred to the Labour Court by statement of claim, but must instead be brought by the speedier means of motion proceedings.” In view of the prescribed statutory application procedure, disputes of fact must be addressed in an alternative way, especially where I have found that the remedies provided by section 189A (13)(a) -(c) will be inappropriate.

[40] This Court is not in a position to make a finding on the papers as to whether or not the parties discharged their procedurally related obligations in terms of section 189 of the LRA in respect of consultation on measures to avoid retrenchments and selection criteria. I am not in a position to decide whether the retrenchment of the individual Applicants was procedurally unfair for the lack of consultation on the said issues and whether compensation should be awarded to them.

[41] The dispute about procedural fairness would be best determined by viva voce evidence.

[42] Rule 7(7) of the Rules of the Labour Court provides that the Court must deal with an application in any manner it deems fit, including referring a dispute for the hearing of oral evidence.

[43] I intend to adopt an approach similar to that applied in Banks and to require that the substantive and procedural aspects of this dispute be dealt with simultaneously, in a trial action. Should the Applicants not refer a dispute concerning the substantive fairness of their dismissal to this Court, this application may be re-enrolled on the trial roll for the hearing of evidence and adjudication.

Order

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

44.1 The application in terms of section 189A(13) is referred to the trial roll in terms of Rule 7(7) for hearing of oral evidence in relation to the procedural fairness of the Second and further Applicants’ dismissal in respect of whether the parties engaged in proper and meaningful consultation on means to avoid retrenchment and selection criteria;

44.2 The Registrar is directed to enrol the application in terms of section 189A (13) for hearing simultaneously with any action that the Applicants may institute in relation to the substantive fairness of their termination of employment. Should the applicants not institute action in this Court in relation to the substantive fairness of their dismissal, they may enroll the application in terms of section 189A (13) on the trial roll as contemplated by paragraph 44.1 supra;

44.3 The costs of this application are reserved.

Connie Prinsloo

Judge of the Labour Court

Appearances

For The Applicants: Advocate Collet

Instructed by: Larry Dave Attorneys

For The Respondents: Advocate Lengane

Instructed by: ENSAfrica Attorneys

[1] Act 66 of 1995.

[2] (2007) 28 ILJ 2748 (LC).

[3] Unreported case number CCT 46/15, 22 January 2016.

[4] [1984] ZASCA 51; 1984 (3) SA 623 (A)