Inqubela Phambili Trade Union and Others v Pioneer Foods (PTY) Ltd, Wadeville Beverages (JS 740/2019) [2022] ZALCJHB 314; (2023) 44 ILJ 327 (LC); [2023] 3 BLLR 229 (LC) (10 November 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Of Interest to Other Judges/Reportable

Case No: JS 740/2019

In the matter between:

INQUBELA PHAMBILI TRADE UNION

First Applicant

INQEBELA PHAMBILI TRADE UNION MEMBERS

AS PER ANNEXURE “A”

Second to Further Applicants

And

PIONEER FOODS (PTY) LTD, WADEVILLE BEVERAGES Respondent

Dates of Hearing: 27 to 29 September and 23 November 2021

Date of Judgment: This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down judgment is deemed to be 10h00 on 10 November 2022

Summary: (Trial – Alleged automatically unfair dismissal – S187(1)(c) of the LRA – refusal to accept a demand – Alternative claim of substantively unfair retrenchment – Jurisprudence on tests of assessing evidence in such cases considered - Dismissal not automatically unfair under s 187(1)(c) – Dismissals would not have occurred if employees agreed to work new shift system – New shift arrangement an integral part of a major restructuring of production arrangements and expanded plant capacity – Alteration in working hours not amounting to a unilateral changed of employment conditions – alteration permitted in employment contracts - Dismissal arising from bona fide operational need to change working hours - Belated application to vary pre-trial minute – no special circumstances for doing so - application dismissed with costs)

JUDGMENT

LAGRANGE J

Introduction

[1] The individual applicants (‘the applicants’) in this case, who number 125 in total, claim that they were automatically unfairly dismissed by the respondent (‘Pioneer’ or ‘the

company’) on 28 June 2019, because they refused to agree to a matter of mutual interest, namely a change from a three shift to a four shift system at the beverage plant where they worked. Alternatively, they claim that they were substantively and procedurally unfairly retrenched. Pioneer contends that the change in the shift system was a genuine operational need and the individual applicants were retrenched and the retrenchment was substantively fair. The company also argued that the applicants could not dispute the procedural fairness of the retrenchment because their retrenchment fell under the ambit of section 189A of the Labour Relations Act, 66 of 1995 (‘the LRA’). At the start of proceedings, the applicants rightly conceded that they could not pursue the procedural claim, so the remaining alternative claim is one of substantively unfair retrenchment.

[2] Mr S Chakarakara (‘Chakarakara’), the operations manager at Pioneer’s Wadeville Beverages plant, testified for the company. The applicants’ witnesses were Mr X Maqatywa (‘Mqatywa’), and Mr E Luthuli (‘Luthuli’), a union official.

[3] The parties had agreed to an extensive pre-trial minute. During the course of the trial, one of the common cause facts set out in the pre-trial minute was placed in doubt by the applicants during the cross-examination of Chakarakara and the applicant’s conducted their case on the basis the concession made by them in the minute was wrongly made. It was only at the end of the trial after both parties had led evidence that they applied to have the pre-trial minute amended to record the factual averment in question as a fact in dispute, instead of a common cause issue.

Background and summary narrative of events

The nature of the business and the intended change to a continuous 24-hour operation utilising four shifts.

[4] The applicants were all employed in an operating division of Pioneer, known as Wadeville Beverages. Production at the plant had been organised on a three shift system, in terms of which shift workers

worked 22 days per month. To meet production targets it was necessary for shift workers to regularly work overtime.

[5] To some extent the business is seasonal, it has a peak and off peak season. The peak season being August until February and the off peak being March until July. This is a reflection of juice beverages being

one of its main products. Before the planned changes, there were five production lines for boxed (Tetrapak) beverages and one for bottled beverages. The production proceeds from blending (in tanks) to pasteurising, primary, secondary and tertiary packaging phases.

[6] The company wanted to improve the efficiencies of the plant by introducing a continuous operation, for the following reasons:

6.1 60% of its market (both local and road export) was supplied from Gauteng, yet only 34% of its production capacity was located at Wadeville. This meant that it had to transport products from Ceres to Wadeville which had a cost implication and a lead time implication. It made obvious sense to increase the capacity of the Wadeville plant.

6.2 It was busy investing a huge amount of money in upgrading the Wadeville plant, amongst other things by ensuring that the blending tanks could service all the lines (which would improve efficiency) and installing a new line. SE gave evidence that under the three shift system, between four and five hours on the last shift on a Saturday and the first seven hours on a Monday was spent cleaning and sterilising lines. In the Wadeville plant only 35% of working hours were being utilised to produce product, compared with 65% of working hours at the company’s plant in Ceres. The additional they are locked out cleaning requirements of the three shift system meant that more water, energy and chemicals were used. This resulted in the cost

per litre produced in the Wadeville plant being at least 70% more expensive than the cost of a litre produced at the Ceres plant

6.3 Because of the limitation on operating hours, the plant had to cease production on a Saturday morning and only could restart it on Monday morning. On Saturday the filling lines had to be cleaned by flushing water through them, sterilising the lines and then restarting production on Monday mornings. This led to significant unproductive time and the plant only operated at 36% efficiency (in other words, it only produced product at 36% of the available time). The cost of this amounted to 34c-40c per litre.

Under the existing three shift system, more than 10 hours overtime had to be worked necessitating the company having to apply for exemptions, in the form of ministerial determinations, from the Minister of Labour to work 15 hours of overtime per week. The second

determination was valid for the period of 1 November 2018 to 31 October 2019 and the company had been advised by the Department of Labour that it had to resolve the overtime issue as it would not be granted further indulgence.To address this, Pioneer wanted to improve production efficiencies, invest in new plant to increase production and existing plant utilisation, and to work a 45-hour week so the plant could operate on a more continuous basis. None of this was placed in dispute. In fact, Maqatywa conceded that employees knew the plant was not operating optimally.

[7] However, the benefits of new plant could not be obtained using the existing 40-hour week. Chakarakara claimed that the workforce was reluctant to work overtime except when they needed the money. It was put to him that they had been willing to work overtime but were not being paid properly for overtime. Chakarakara disputed this and

challenged the applicants to substantiate this claim. No evidence to that effect was forthcoming. The only provision dealing with hours of work in employee’s contracts of employment read:

“11.10 Working hours

The Employee’s hours of work are determined by the operating unit where he/she is employed. Hours of work could change in the future depending on the demands of the company’s business. As working hours, times and days differ from one operating unit to another, enquiries in this regard must be made to the Human Resources.”Mqatywa agreed that the provision gave Pioneer the right to change hours of work in each operating unit.

The sequence of events preceding the dismissal

2017

[8] In September 2017 a one-year substantive collective agreement was concluded with FAWU, the majority union in the workplace for the period 1 July 2017 to 30 June 2018. Clause 8 of the agreement stated:

“8. TRANSPORTATION

Parties agree to the 45-hour work week. The implementation is set to commence on 1 November 2017 at Wadeville Beverages Unit, subject to communication to employees in this regard before implementation date. Transportation will be provided for night shift. It is agreed between parties that the union will come up with a reliable transportation and the company will pay a transport allowance of R 300 per month to the affected employee, aligned with the principle that the company will contributed the bigger portion and the employee the lesser portion towards the overall cost.”

(emphasis added)

Mqatywa testified that the 45-hour week did not sit well with workers, but accepted that FAWU had agreed to it.

[9] However, the company and FAWU could not agree on how the working week would be arranged. The previous normal week was a 40-hour week. Maqatshwa, who was present during the negotiations and a signatory to the agreement, confirmed that agreement on a 45-hour week did not imply agreement on a four shift system. He said FAWU, with the agreement of members, had acceded to this to assist the company to address inefficiencies. He testified that labour proposed that nine-hour shifts should be worked during a fiveday week, but could not explain how this would be incorporated in a 24 hour cycle as three 9 hour shifts would take 27 hours to complete. The company wanted to utilise the 45 hour week to run the plant continuously for

7 days a week, which it calculated would amount to 195 hours per month per employee working on a four shift system. Mqatywa claimed

the company never mentioned this figure.

[10] It was put to Chakarakara that the substantive agreement on 30 June 2018 was a one year agreement and therefore the agreement on a 45-hour week also came to an end on 30 June 2018. His response was that when the agreement ended that did not mean that the conditions of employment it contained just fell away. According to Mqatywa, shop stewards were of the view the agreement on the hours had to be renegotiated when the new substantive agreement was concluded for the period starting 1 July 2018. Eventually though, he did concede that previously agreed terms of the agreement normally continued unless changed.

2018

[11] On 27 July 2018 the company issued a written invitation to the shift workers and their representatives to consult with it on 1 August 2018 about the possible implementation of introducing a fourth shift at the plant. The invitation read:

“Dear Employees

INVITATION TO CONSULT ABOUT THE IMPLEMENTATION OF A FOURTH SHIFT

This letter serves as an invitation to meet with the company on 1 August 2018, at Wadeville Beverages to consult about proposed implementation of a fourth shift at the Wadeville Beverages plant.

We record below the information necessary to enable you to make a meaningful contribution during the consultation process. We request that you prepare any representations you may have in advance of the consultation meetings and engage fully in the process.

Need for the fourth shift

1. The businesses (sic) growth requires an increased capacity at the Wadeville Beverages site.

2. To optimise asset utilisation at Wadeville Beverages.

Alternatives investigated and the reason why we believe they are not viable:

3. The implementation of a fourth shift is not something we have considered lightly. However, maintaining the current status quo is not a feasible option as the business currently does not have the capacity to supply the current and the forecasted increase in demand. We have not been able to come up with any alternatives to the proposed introduction of a full shift.

4. We have considered the possibility of continuing to require employees to work overtime, however this is not sustainable. In addition, the projected demand key product lines cannot be satisfied simply by requiring employees to work overtime.

The departments likely to be affected by the fourth shift implementation are:

o Production

o Maintenance

o Quality Assurance Department

o Inbound Logistics

o outbound logistics That

o Other Shared Services

o The period of consultation:

The Company proposes that the consultation process will be finalised by the end of August 2018.

It is important that you have opportunity to make representations and to raise any issues before any decision is taken by the Company in the event that there are any changes to the organisational structure or if there is consolidation of manufacturing processes.

Please be sure that we will keep an open mind throughout the consultation process and would seriously consider any proposals put forward by you.

Yours faithfully

…………………..

Shepherd Chikarakara

Operations Manager”

[12] Chakarakara conceded that, the company had decided to move to a four shift system by that time, and the issue was how it should be implemented, given also that there was already an agreement that a 45-hour week would be worked. This equated to 195 hours per month per shift worker. In Pioneer’s view this would best be achieved using the four shift system, though Chakarakara conceded that a four shift system was not the only way a 45 hour week could be achieved.

[13] Chakarakara agreed that the four shift system had not been mentioned in the collective agreement signed between FAWU and the company in 2018. It was first mentioned in the consultation meeting on 1 August 2018. Mqatywa recalled that workers had a problem with the use of the word ‘implementation’ because all they had agreed upon was a 45-hour week. Commenting on a statement in Pioneer’s answering statement of case, in which it claimed that a review team

had determined in July 2018 that the three shift system was inefficient and proposed a changed to two 12 hour shifts with four

different crews working a compressed working week, Mqatywa said he had never participated in such a process.

[14] Pursuant to the invitation on 27 July, the first consultation meeting between management and representatives of the affected employees took place on 1 August 2018. Salaried employees elected their own representatives and other employees were represented by the unions they belonged to, namely FAWU and ITU. At the meeting it was explained that the fourth shift would create 50 more permanent job opportunities. Further, instead of employees working 22 day months, as they did under the existing three shift system, they would now work 15 to 16 days a month on average. Two shift models were tabled by the company. Employee representatives raised concerns about the fourth shift reducing overtime pay and the transport arrangements

which would be available for the new shifts. A flat shift allowance was discussed as a possibility. Chakarakara maintained that under the new arrangement workers would earn approximately 7% more, despite the reduction in overtime hours. This evidence was not disputed.

[15] Mqatywa testified that agreement was reached on working the 45-hour week but discussions could not be concluded because management changed its stance, when it stated that the 45 hour week would only apply during the peak season from August to April and it would revert to a 40 hour week in the off-season. This was not acceptable to workers who wanted to work a 45 hour week throughout the whole year. Management also told them that the cost to company of the new hours should be the same as the 40-hour week. None of these allegations were tested with Chakarakara.

[16] Another consultation meeting was scheduled to take place a week later. Mqatywa claimed he did attend the meeting on 7 August. It took place the same time there was a deadlock in the annual wage negotiations and the parallel consultations about implementing a four shift system caused a lot of confusion. The meeting broke up without any conclusion. Mqatywa’s account of this meeting was not raised with Chakarakara during his cross-examination.

[17] On 28 August the company wrote to the employee parties in the consultation process asking them to make representations on the proposed shift system at a meeting to be held on 4 September. Both unions rejected the invitation and the meeting did not proceed. On 13 September another invitation was issued for a meeting on 21 September. The unions and other employee representatives attended on that occasion but refused to participate in the consultation process. Despite what was recorded in the pre-tiral minute, a dispute arose during the trial about whether or not they had refused to do unless the company issued a notice to consult over possible retrenchments under section 189 (3) of the LRA. In any event the meeting adjourned. Mqatywa said he attended the meeting but no officials from either union was present. He alleged management was questioned whether it had notified the unions of the meeting and claimed it had, but could not produce proof of doing so. Mqatywa said that ITU shop stewards at the meeting phoned Luthuli, who denied any foreknowledge of the meeting. According to Mqatywa, the shop stewards did not feel they had the knowledge to engage in the consultation. Mqatywa also testified that one of the shop stewards asked the company why it was

talking about section 189 at same time as it was hiring a lot of persons. ITU shop stewards were of the view that people would first be hired and then there would be a retrenchment process. According to him, the HR Director, Ms N Olivier (‘NO’) was insistent that too much time had been wasted on the issue, and s 189 consultations should proceed. Mqatywa claimed he represented FAWU at the meeting and complained that there already had been retrenchments during the previous three years. The ITU shop steward also adopted a similar stance then they both left the meeting.

[18] Mqatywa insisted that none of the union representatives at the meeting demanded that a section 189 process should be followed, though one of the ITU shop stewards did mention s 189 by way of commenting that one could not talk of such a process when the company was employing people. In his view, ITU’s attorneys made a mistake in agreeing that the unions have demanded that section 189 be followed. He could not offer any explanation why one of the management representatives in the meeting with ITU on 12 February 2019 and said that and that “s 189 was not management’s preferred choice.”

[19] Luthuli suggested that it might have been a misunderstanding on the part of ITU’s attorneys when they agreed in the pre-trial minute that ITU and FAWU representatives, who attended the consultation meeting on 21 September 2018, had “refused to participate in the consultation process unless they received a notice to consult in accordance with section 189 (3) of the LRA”.

[20] Chakarakara claimed that until that stage the company had not considered it would be necessary to engage in consultations over retrenchment. In the pre-trial minute, the unions’ stance at that meeting was recorded as part of the common cause facts. However, as the trial progressed, ITU sought to dispute that the unions had made such a demand. At the end of the trial it became the subject matter of an application to vary the pre-trial minute. This is dealt with in more detail in the evaluation of the case.

[21] On 28 September, ITU sent a letter to the company in the following terms:

“Subject: Unilateral changes of conditions of employment of four shift system is denied without any exemption

Dear Sir

I write this letter to oppose and warn the company does not implement the four shift system without any agreement because that will result in a bad impact between the parties. All workers deny the new changes especially because no exemption was granted to the company by the Department of Labour.

Therefore, the law says that the company must apply for the exemption by law at the Department of labour That and send the draft to the union as well so that it can put its position if it so wishes. In that regard, I believe that justice and fairness will prevail in this matter.

Please referred soonest.

E Luthuli (Snr.)”

Luthuli argued that the company’s introduction of a four shift system amounted to a unilateral alteration of conditions of employment and the union expected the company to consult with it, reach an agreement and obtain the necessary exemptions.

[22] On 6 December 2018, FAWU wrote a letter to the Department of Labour confirming that it supported the company’s application for a one year extension of the previous ministerial determination that expired on 30 September 2018. The determination permitted Pioneer to work a maximum 15 hours per week overtime rather than the 10 hours per week permitted under the Basic Conditions of Employment Act, 75 of 1997 (‘the BCEA’). The extended exemption was sought for the period 1 November 2018 until 31 October 2019.

2019

[23] On 31 January 2019, ITU wrote to the company alleging that it was acting in breach of the law by introducing the four shift system. It warned the company that any attempt to introduce the new system before the parties had reached a deadlock in negotiations, noting that they were due to meet on 12 February.

[24] The following day (1 February 2019), the company issued a notice to ITU purportedly issued in terms of section 189 of the LRA, inviting them to consult on 12 February. The content of the letter was identical to the letter previously issued by the company on 27 July 2019, save that the title of the letter now read ‘Notice in Terms of Section 189 of the Labour Relations Act ‘, and the proposed date for finalising consultations was shifted to 1 April 2019. The letter bore no resemblance to the standard notice an employer is required to issue under s 189(3) when contemplating possible retrenchments. Moreover, it did not even refer to the possibility of retrenchment. The explanation for characterising the consultation process under the new heading is apparent from a subsequent letter from the company’s attorneys, discussed below. Luthuli said it was the first time in his life he had received a notice like that from the company. It was confusing because they had been discussing the four shift system. He was adamant that the unions had not requested that a section 189 process should be initiated before they were prepared to engage in consultations.

[25] Mqatywa, who was still a FAWU shop steward at that stage, recalled that a meeting took place on 1 February. He testified that management’s invitation to the meeting on 12 February was only written after labour representatives had refused hold a meeting on 1 February to meet without a formal written invitation to do so. His evidence about such a meeting was not put to Chakarakara. When questioned about the fact that his name did not appear on attendance registers for meetings on 12th and 26 February, 6, 19 and 28 March, and 5 April and 17 May 2019, his response was that he attended the company meetings with FAWU on those dates, though he was an ITU member by 17 May 2019.

[26] In any event, the meeting on 12 February took place, but ITU officials excused themselves on account of a CCMA hearing in Pretoria. Mqatywa explained that the FAWU delegation did not sign the register because it was headed “S 189 Consultation”.

[27] At the meeting, it is common cause that the company explained which departments and positions would be affected by the proposed shift system and asked for feedback from the representatives at the next meeting after they had engaged with their constituencies. Chakarakara testified that ITU requested separate consultations with the company from FAWU. Chakarakara denied that when the meeting started ITU officials queried why the meeting was designated as a meeting under section 189 and disputed that management agreed that consultations would be confined to the four shift system. He insisted that the s189 approach was adopted at the insistence of employees and he could not comprehend how ITU could say it was never invited to s 189 consultations. Nevertheless, he did agree that there was no reference to invoking section 189 in any of the correspondence from either of the unions. In his testimony, Mqatywa claimed that FAWU queried why management was discussing the four shift system when the meeting had been designated as a consultation under S189, but he agreed that they were advised that nobody would lose jobs. Under cross-examination, Mqatywa claimed that it was at this meeting that FAWU representatives first requested the involvement of a facilitator from the CCMA, which is what had taken place during previous consultations under 189A during 2016 and 2017. The parties still agreed that the consultative forum would convene again on 26 February.

[28] At the 26 February meeting, ITU alleged the company was trying to eliminate over time and that it could not implement a fourth shift without a ministerial exemption. However, Luthuli was reluctant to confirm that this was the union’s position throughout all the discussions. ITU also expressed the view that, because the new shift would entail a change to terms and conditions of employment the matter would have to be determined by a court. In addition, the union contended that union members working shifts would receive less salary because they would not be working overtime. Chakarakara disputed this

because he claimed salaries were increased. The union further voiced its suspicion that in two years’ time the company would embark on a retrenchment process because it had employed too many new staff. Without clarifying whether it was the view of both unions, Mqatywa testified that they realised that the company was trying to force the four shift system on them and they told the company they would go to the CCMA. It must be borne in mind that he was still a FAWU representative at that time.

[29] An incident occurred in the ITU meeting with the company, which led to the company barring Luthuli from coming to the premises. Chakarakara did not deal with the incident in his evidence, neither was he cross-examined about it. However, Luthuli gave his own version of the incident at some length, which concerned Chakarakara allegedly showing disrespect towards him. The incident has no material bearing on the issues in dispute.

[30] On 6 March 2019, one more meeting took place. Thereafter, neither union attended any further consultations but other employees and FAWU employee representatives attended meetings on 19 and 28 March, and 2 and 5 April 2019. Mqatywa said that FAWU would not attend further meetings without the involvement of a third party. They were confused about the nature of the process, namely whether it was about the four shift system or section 189. He claimed that the FAWU organiser had asked the company to use a third party, but the company was unwilling to do so. It must be mentioned at this juncture, that neither FAWU, which was the majority union, nor ITU and FAWU acting jointly, formally requested the appointment of a facilitator under s 189A(3)(b) of the LRA.

[31] A memorandum of agreement styled as a “section 189 settlement agreement” was drafted by the HR manager purportedly reflecting what had been agreed between Pioneer and the employee parties who had continued participating in the consultation meetings. The veracity of the unsigned document as a reflection of what had been agreed, was queried under cross-examination. According to Chakarakara, the only thing that had not been concluded was the shift allowance to be paid. Employee representatives wanted a 15% allowance and management was proposing 11,5%, a slight increase on the previous allowance of 11,25 %. This was moved to 12 % later to induce employees to accept the four shift system. In any event, Chakarakara said the majority of employees did not want to move to the new system. Mqatywa conceeded that, in terms of the 2017/2018 collective agreement between FAWU and Pioneer, it was agreed a 45-hour week would be implemented from 1 November 2017

[32] On 8 April, having exhausted the consultation process it had initiated, the company issued letters to the applicants declaring that the consultation regarding the “restructuring exercise” had been concluded at the meeting on 5 April and advised that it intended to implement the new shift system from 1 July 2019. This was common cause in the pre-trial minute, though Mqatywa denied personally receiving such a letter.

[33] Chakarakara disputed that ITU had not been part of the process, pointing out that both unions had attended meetings on 21 September 2018, 12 and 26 February and 6 March 2019. The letter also communicated the changes to various jobs in the functional areas affected and invited employees to apply for any of the positions which would be filled using, as minimum criteria, qualifications, job matching principles, skill and knowledge, and experience. It further cautioned that employees who did not accept a reasonable offer of employment would not qualify for severance pay. According to Chakarakara , there was no reason for any of the affected employees not to succeed in obtaining a suitable job and, as a package, employees could expect to earn 7 to 8% more.

[34] The same day, ITU referred a dispute to the CCMA under section 64 of the LRA and demanded in the referral that the company stop any proceedings that would amount to a unilateral change to the employment contracts of its members pending the resolution of the dispute. A list headed “Employees who do not want 4 shift and 45 hours shift system” and signed by approximately 60 employees was attached to the referral. In a handwritten attachment explaining ‘the result required” from the conciliation process, ITU stated:

“- failing to which the Commissioner to release a protection strike certificate.

- In our understanding if you are to change the conditions of employment, there must be a Department of Labour exemption given to authorise the company to do so, or unilaterally changes this company do.

- In all the company must stop proceeding with these enforced changes till this dispute is discussed before the CCMA.

More advanced evidence will be made before hearing.”

(sic)

[35] On 24 April, letters of appointment were issued to employees confirming their new appointments and that they would be working 1 95 hours per month on the four shift system. Mqatywa agreed that he had received a letter appointing him to a position with a different title, and he was asked to sign it but he refused because he said he would not sign something he did not understand.

[36] On 26 April ITU wrote to the company claiming that its members have been threatened that if they did not agree to work the four shift system they would be dismissed and accused the company of victimising, harassing and intimidating its members.

[37] On 2 May the company’s attorneys wrote to ITU setting out the process which had been followed in implementing the four shift system. Amongst other things the letter stated that the company never contemplated dismissing any employees for operational requirements on account of the restructuring of the shifts and for that reason it was not necessary for it to have adhered to section 189 of the LRA. However it stated that, because the unions had previously indicated they would not engage in a consultation process unless they received a notice under section 189 (3) of the LRA, Pioneer had done that. It must be mentioned that, contrary to what is stated in the company’s letter of 2 May, its letter of 1 February did not say that it did not anticipate dismissing anyone for operational requirements. Rather, it

simply said nothing about any contemplated dismissals.

[38] The letter of 2 May also outlined that there had been two more consultation meetings in March and two in April after the trade unions indicated that no longer wish to participate because they wanted a CCMA facilitator to preside. The letter confirmed that employees had been invited to apply for new positions if their existing one became redundant as a result of the restructuring, but that ITU members had declined to accept the implementation of the new shifts due to commence on 1 July, and had not applied for any of the available positions in the new structure, nor accepted specific positions they were appointed to. It disputed that any ITU members were denied access to the workplace for not accepting the fourth shift but confirmed they had been warned that they were placing their employment in jeopardy by not accepting any positions offered, because the company regarded the positions as reasonable offers of alternative employment. The letter also reiterated that ITU members had been invited to reconsider their position and let the company know by Monday 6 May, if they wanted to be considered for any position, and it urged the union to persuade members to reconsider their stance.

[39] On 6 May at the conciliation of the S 64(4) dispute, the union and company agreed to extend the conciliation process until 20 May 2019. Chakarakara confirmed in a letter the next day that the company agree to consult during the extended conciliation period further with ITU on the implementation of the four shift system and the changes associated with the move to a 195 hour system. The letter reiterated that if no agreement was reached the company would proceed with implementation of the changes as previously advised. The company proposed conciliation on 16 or 17 May and also notified the union that if no consensus was reached the company would continue with its implementation as communicated to employees on 24 April.

[40] On 10 May the company notified the union that it would permit Luthuli to attend a meeting despite him being barred, but on the basis that he refrained from ‘xenophobic or racial slurs or remarks’ and that he treated all employees with respect. On 13 May, ITU sent another letter to the company insisting that the only dispute on the

agenda at the CCMA meeting was about the unilateral change to the four shift system contrary to its members’ existing contracts.

It reiterated the warning that if it attempted to implement the system without a ministerial exemption that would be a violation of its member’s human rights and could lead to an urgent interdict and protected strike. The letter, penned by Luthuli, concluded by calling on “top management” to “interfere and intervene in this matter”.

[41] A meeting was between management and the union which was also attended by the group HR executive member and another HR executive member. Three union officials, including Luthuli, attended. At the meeting Luthuli proposed the appointment of a facilitator because the parties were not in agreement. Management’s response was that no facilitation was required because no dismissals were anticipated and the company was engaged in implementing the agreement reached with FAWU, the majority union. Olivier reiterated that a section 189 process was requested by shop stewards, FAWU, ITU and employee representatives. Nonetheless, the company was willing to try and find consensus and did not intend to dismiss anyone. After a caucus Luthuli explained that employees were not refusing to work a full shift but the law did not permit them to do so. The company needed an exemption. Even though ITU would oppose such an exemption, the matter would be decided by a third party. He argued that the parties should strive for a peaceful solution for purpose of company operations continuing and it was not the union’s aim to strike. After some conciliatory statements from management the meeting adjourned on the understanding another meeting would take place.

[42] Chakarakara’s unchallenged testimony was that attempts were made to arrange further meetings and that Pioneer also offered to engage a private mediator. On 29 May in the absence of a meeting taking place, the company sent ITU a letter in identical terms to the letter sent to individual employees on 2 May, except that it mentioned confirmed it was willing to meet on 4 and 6 June to “unpack the above contents in order to finalise the process”, and expressing the hope that the process be finalised by mid-June. It further anticipated that any notice of termination of employment on account of an employee not accepting an alternative offer of employment would be effective from 1 July and such an employee would not be eligible for severance pay.

[43] No further meeting took place between ITU and Pioneer. ITU then referred a second dispute over unilateral alteration of terms and conditions to the CCMA, but stated in the referral that the dispute originated on 4 April, which was the day after the first referral. The solution required by ITU was that the company would not force members to work the four shift system contrary to the LRA and against their wishes. On 12 June, the company responded saying did not understand the reason for the second referral and confirmed that it had offered alternative positions to the affected employees and that it was going to proceed to implement the changes from 1 July 2019. It also pointed out that it had improved the monetary package which it would convey to the employees. Around 18 June letters were sent to employees advising them of their appointment in new positions to commence on 1 July. The letters also advised that appointments which were not accepted as reasonable offers of alternative employment

would result in notices of termination being issued on 28 June or thereafter. Chakarakara claimed that when workers were given the letters they simply returned them, Letters of termination were sent to employees who did not accept one of the offers of alternative

employment. The letters stated that, in the absence of accepting suitable alternative employment, the termination of their services

was “unavoidable”. Chakarakara denied that workers were told on that day that if they did not sign the new contract of employment there would be dismissed. Rather, he maintained that the company pleaded with them to reconsider their failure to accept one of the positions. He stated that employees who were on leave were still given the option of accepting one of the appointments on their return. As with other correspondence directed to individual employees, Mqatywa denied ever receiving a letter confirming his appointment in the new structure, but could not comment on whether other persons in his shift had received such letters.

[44] The union responded in a letter on 20 June. The thrust of the letter was to dispute that the union had ever been invited to consultations over retrenchments under section 189 of the LRA and reaffirmed that the dispute concerned a unilateral change of conditions of employment, but it was nonetheless willing to consult over retrenchments if invited to do so. It also claimed ITU was now the majority union. The letter further warned Pioneer that if the company did not suspend its actions “serious unrest” would follow “without further notice.” The company’s lawyers responded on 25 June, in which it argued that it had consulted with the union since initiating consultations in July 2018 but that on 6 March 2019, ITU withdrew from the process because it wanted a CCMA facilitator to preside, but never made a request under section 189A (3)(b) for the appointment of one, which parties representing the majority of employees were entitled to do before 12 August 2019.

[45] On 27 June 2019, a last-ditch effort was made by management to persuade employees who did not want to work the four shift system to accept the change. All shifts were addressed by the managing director, the HR director and the manufacturing executive, as well as the operations manager. Extended time was given to workers until 10:00 on 28 June reconsider. However, only about a dozen accepted appointments on the new four shift system. Mqatywa remembered the meeting and that management had explained that it had ‘sat with them’, but now it had taken a decision and that workers needed to choose between the job offer or the termination of their employment. Chakarakara had said they had been given an opportunity, but Mqatywa disputed this. He claimed this was the first time that he realised he would be dismissed if he did not accept a position in the new structure. He denied ever seeing one of the individual notifications issued to workers on 8 April 2019 which invited workers to apply for any suitable positions and warned that anyone who failed to accept a reasonable alternative would be given notice of termination and would not receive severance pay. The non-receipt of these important letters was not part of the applicants’ pleaded case.

[46] Mqatywa alleged that when they arrived at work on the following day they were met by fully armed security staff. They were given the option of signing the documents or collecting their belongings and leaving. People were upset, including Olivier herself. At that point workers phoned ITU. Luthuli tried to comfort them as the “reality dawned on them”. He said he would fix things.

[47] It was put to Mqatywa that the termination letter did not say employees were dismissed because they did not accept the four shift system. He agreed but said that it was because Pioneer wanted to implement the four shift system and this was implied in the letter. He claimed that the job he was offered was the same one he was doing and that it was only a change in the title of the job that was involved. Go to sleep

Application to amend pre-trial minute

[48] The approach to an amendment of pre-trial minutes in labour court proceedings is usefully summarised in Telkom SA SOC Ltd v Van Staden & Others (2021) 42 ILJ 869 (LAC):

“[21] The two minutes concluded by the parties were contracts entered into consensually between them, from which, in the absence of special circumstances, neither party can resile. This is so in that, as was stated in Filta-Matix:

‘To allow a party, without special circumstances, to resile from an agreement deliberately reached at a pre-trial conference would be to negate the object of Rule 37 which is to limit issues and to curtail the scope of the litigation. If a party elects to limit the ambit of his case, the election is usually binding. No reason exists why the principle should not apply in this case.’ (Footnotes omitted.)

[22] There is no reason why the same should not equally be applicable to the rules of the Labour Courts. In Driveline Technologies, this court made it clear that ‘a party would be able to resile from such an agreement on the same basis as he would be able in law to resile from any other contract’. In Rademeyer v Minister of Correctional Services, the court indicated that for special circumstances to exist such as to allow the court to exercise its discretion in favour of a party seeking to resile from

the agreement:

‘Three requirements must be met: firstly, the defendant must furnish an explanation sufficiently full of the circumstances under which the concession was made and why it is sought to be withdrawn; secondly, he should satisfy the court as to his bona fides; and thirdly, show that in all the circumstances justice and fairness would justify the restoration of the status quo ante.’

[23] Yet, in CEPPWAWU the Labour Court differed, taking the view that —

‘setting the test for special circumstances as being substantially equivalent to the test for the grant of condonation (as Rademeyer does) is too lenient and does not take account of the fact that a pre-trial agreement equates to a contract between the parties. Once this is accepted, then special circumstances in the present context should, in my view, be understood as meaning that, in order to resile from the agreement (or part thereof), the applicant must establish a basis for doing so in the law of contract’.

[24] Given the status of a pre-trial agreement as a contract entered into between the parties, I am satisfied that the approach taken in CEPPWAWU is correct. No special circumstance has been shown such as would allow the respondents to resile from the agreement. In any event, the respondents raise the issue in argument on appeal for the first time which is impermissible.”

(emphasis added, footnotes omitted)

[49] As already mentioned, during the trial the applicants sought to distance themselves from one of the agreed facts in paragraph 19 of the pre-trial minute. Paragraph 19 read:

“On 13 September 2018, invited ITU and FAWU to consult with it at a meeting on 21 September 2018. ITU and FAWU and the other employee representatives attended the meeting on 21 September 2018. They however refused to participate in the consultation process unless they received a notice to consult in accordance with section 189 (3) of the LRA. The Respondent adjourned the consultation process”.

[50] The applicants applied to remove the underlined sentence in clause 19 from the common cause facts and record it instead as one of the facts in dispute. The application was launched belatedly after the evidence was completed. The applicants’ attorney of record deposed to an affidavit in which he claims that designation of the averment in question as an agreed fact was solely due to a bona fide error on his part and was contrary to his instructions that it should be recorded

as a fact in dispute. He contends that the evidence led during the trial by both parties clearly demonstrated that it was a matter of dispute.

[51] The company opposed the application. It argues that the grounds advanced by the applicants do not constitute the type of special circumstances under which a party may resile from a pre-trial minute. It also notes the lack of detail about how the instruction was communicated and by whom. To that one might add that no explanation was provided why the contested averment appeared where it did in the pre-trial minute narrative. If it is excised from paragraph 19, the reason why the respondent then adjourned the meeting on 21 September ceases to be apparent.

[52] The affidavit falls far short of what a sufficiently full explanation of the circumstances leading to the alleged error entails. It also sheds no light on when and how it became apparent that the alleged error had been made. The explanation is colourless and lacking in substantive. There was no suggestion during the trial that this error was brought to the attention of the respondent’s representatives before the contrary proposition was put to Chakarakara under cross-examination and no explanation is provided why that was not done. I am also sceptical that it was a concession made in error, except in the sense that the applicants might have perceived later in preparing for the case that it could be prejudicial to their contention that they were dismissed for not agreeing to a demand on a matter of mutual interest.

[53] In this regard, it is significant that there was no attempt by ITU to dispute the claim when it was made in the 2 May 2019 letter of the company’s attorneys. The now contentious portion of clause 19 is also a more consistent with the evidence that the unions were calling for third-party intervention in the consultation process. Mqatywa made the point that this had occurred twice before when consultations under section 189A had taken place. In addition, it was his own evidence that both unions had refused to engage in s 189 discussions with the company on 1 February without a formal invitation to do so, which tends to support that the company’s

version that the unions wanted a formalised s 189 process.

[54] ITU also argued that amending the minute would not cause any prejudice to the respondent because the applicants had led evidence and cross-examined Chakarakara as if the concession had not been made. This misses the point that if the company had known that the issue was going to be a contentious one, it would have prepared for trial on the basis that it needed to prove the truth of the statement instead of being surprised by the applicants’ new version which they only advanced during evidence. The prejudice to the applicants of the amendment not been made is that it tends to support an inference that at the time they believed that the company ought to be engaging in retrenchment consultations under section 189A, which might undermine their claim that they believed they were dealing with a simple unilateral alteration of conditions of service. In view of the analysis of the evidence which follows below, I am not persuaded that removing the concession materially affects their prospects of success in any event.

[55] In the circumstances, the application to amend the pre-trial minute must fail.

Evaluation

Were the dismissals automatically unfair?

[56] In National Union of Metalworkers of SA & others v Aveng Trident Steel (A Division of Aveng Africa (Pty) Ltd) & another (2021) 42 ILJ 67 (CC) the highest court was regrettably equally divided on which test should be used to determine the reason for dismissal in cases of alleged automatically unfair dismissals. Prior to that case, the test adopted for some years was that enunciated in SA Chemical Workers Union & others v Afrox Ltd (1999) 20 ILJ 1718 (LAC)[1],

namely that a court must first determine if the dismissal would not have occurred but for the happening of the event which has to be established in order to prove a claim of automatically unfair dismissal. In the case of an alleged dismissal for embarking on a protected strike, the question is whether the dismissals would have occurred if a protected strike had not taken place. In casu, the question would be whether the dismissals would have occurred if the applicants had not refused to take up any of the available positions, which also entailed working the four shift system. If the answer to the first question is that they would not have been dismissed but for that their refusal, then the next question is whether that reason was most probably the “only real or proximate cause” of the dismissals[2]. This approach was preferred in the Aveng judgment penned by Mathopo AJ.

[57] The alternative approach, taking its cue from the decision in Chemical Workers Industrial Union & others v Algorax (Pty) Ltd (2003) 24 ILJ 1917 (LAC), was adopted in the judgment of Majiedt J, namely that the true reason for the dismissal in the face of two conflicting versions had to be determined by the conventional method of deciding the question on a preponderance of probabilities, without recourse to two phase enquiry envisaged in Afrox[3].

[58] Despite the differing approaches to the evidentiary assessment, the Constitutional Court was unanimous in dismissing the appeal of the employees against the decision that they were not dismissed for rejecting a demand on a matter of mutual interest contrary to s 187(1)(c). In view of the absence of majority ratio in the Aveng case, the Labour Appeal Court reaffirmed in Securitas Specialised Services (Pty) Ltd v Kabelane (2021) 42 ILJ 833 (LAC) that the approach in Afrox still applies.[4]

[59] It is noteworthy in Aveng that Mathopo AJ expressed doubts about whether the two tests are in fact incompatible[5]. Indeed, it is difficult to see how a court applying the ordinary test to determine the true reason for a dismissal on a preponderance of probabilities could conclude that employees were probably dismissed for the prohibited reason, without indirectly finding that they would not have been dismissed if the event in question (e.g., embarking on a protected strike or refusing to accede to an employer’s demand to change working conditions) had not taken place. To put it differently, a court could hardly find on a balance of probabilities that workers were dismissed for embarking on a protected strike, without also implicitly accepting that they would not have been dismissed if they had not embarked on the strike. The use of the Afrox approach as an heuristic tool in determining the true reason for a dismissal in cases where there is always a dispute about the

real reason for the dismissal and where the employer’s own rationale is often multifaceted does commend itself as an aid to analysis, even if the analysis can be conducted without expressly acknowledging that it a necessary part of any finding that a dismissal was most probably for the illegitimate reason, to hold that it would not have happened otherwise. It helps to separately identify if both the necessary and sufficient conditions for a finding that a dismissal was automatically unfair have been met.

[60] Turning to the facts in this case, the first point that needs to be made is that ITU was not a party to 2017/18 substantive collective agreement in which it was agreed to alter the hours of work to 45. Nonetheless, it was undisputed that the agreement reached with FAWU, as the majority union, applied to ITU members in the bargaining unit as well.

[61] Even though an agreement had been reached on the new hours of work, it is clear that neither union was happy with the proposal that a four shift system be implemented. One reason for this was that it would entail working on weekends, when previously this was only done on an overtime basis and was voluntary. Chakarakara’s evidence that it was difficult to get staff to work overtime, except when they needed the money, was disputed. It was put to him that workers were in fact willing to work overtime but were not being paid properly for doing so. No evidence was provided to substantiate this claim.

Another apparent reason for the unhappiness with the new shift system, was a concern that employees would earn less because of the loss of overtime work. The company was at pains to demonstrate that overall they would earn more under the four shift system once all the allowances and increases were taken into account. This evidence was not seriously challenged.

[62] However, I accept it does not mean that there was not a genuine suspicion amongst workers that they would be worse off working for shifts. The fact that the four shift system would allow the company to employ approximately 50 more people was of no interest to them if it meant any deterioration in their own conditions. In fact, the increase in employment was used by labour representatives as a point in argument to challenge the company’s characterisation of the consultation process as a section 189 process, which normally concerns a loss of jobs.

[63] The crisp question to be determined is whether the applicants’ dismissals were on account of operational reasons or simply because they refused to accede to a demand by Pioneer to work the four shift system. Pioneer argued that it had no alternative but to retrench them because they would not accept suitably alternative positions in the restructured shifts.

[64] There can be no doubt that if the applicants had been willing to work on the four shift system in the restructured production process, they would not have been dismissed. Their refusal to accept the new positions meant they also refused to accept the four shift structure of working hours, and was undoubtedly an integral part of the reason for their dismissal. The critical question is whether Pioneer established that this was only one aspect of the reason for their dismissal and that the primary reason for their dismissal was not simply for the purpose of forcing them to accept the shift changes but because the shift changes were integral to the restructuring and reflected a bona fide operational need.

[65] Chakarakara gave detailed evidence of the cost pressures resulting from the underutilisation of the Wadeville plant operating with its existing lines and hours of work. Its costs per litre of beverage were significantly higher than the Ceres plant and it could not produce the volumes required to serve the bigger portion of the beverage market which was more accessible the main market than the Ceres plant. If the company increased its plant capacity and ran a continuous operation, which would reduce downtime spent on cleaning plant, it would materially improve the efficiency of the Wadeville operation, reduce waste and reduce costs per litre produced. This evidence was not challenged in any meaningful way. No evidence was led of how Pioneer could have achieved the same objectives by alternative measures. The four shift system made it possible for Pioneer to achieve these objectives coupled with the capital expenditure on new plant and introduction of some new job functions. The existing three shift system was not compatible with a continuous operation because of the excessive overtime hours it would entail which the Department of Labour made clear it was no longer prepared to permit.

[66] It is clear that the imperatives driving Pioneer to change the shift system originated in the context of these overarching operational objectives. The company sought to implement the four shift system as an integral and necessary component of a reorganised production process which enable it to operate continuously and increase production volumes.

[67] The company went to great lengths, firstly to persuade employees and the unions through consultations about the merits of the four shift system for achieving operational objectives and that overall their remuneration would improve. It altered the shift allowance it intended paying as a result of those discussions. The unions decided to boycott the process. The primary reason for doing so appears to be that ITU believed the existing three shift system was a binding contractual arrangement, which could not be altered unilaterally by the employer. Hence ITU invoked s 64(4) in referring disputes to the CCMA. A secondary reason was that ITU believed that the four shift system would also require a ministerial exemption for overtime hours worked. Why it believed this to be the case was not explained in evidence. Moreover, it is hard to understand why the union thought a ministerial exemption would be necessary for the four shift system, when Pioneer had made it clear that the four shift system was also intended to avoid having to obtain such an exemption, because the Department of Labour had advised Pioneer to resolve its problem of excessive overtime hours. Nonetheless, the union believed its members were legally protected against any alteration of their working hour arrangements, for one reason or another.

[68] The flaw in ITU’s reasoning on the contractual entitlements of its members to a three shift system was that it failed to consider that clause 11.10 of their employment contracts[6] expressly acknowledged that the determination of working hours at the plant was a matter for the employer to decide. Accordingly, a change in those hours did not require an amendment of their contracts of employment and, concomitantly, did not entail to a unilateral change of their contractual obligations, contrary to ITU’s understanding. Perhaps ITU leadership actually did understand this, because even though it issued repeated threats it would embark on strike action or go to court about the alteration, it never did.

[69] A consequence of this is that, even though the four shift system entailed a significant change in the pattern and extent of working hours, management’s requirement that the new hours be worked as part of the restructuring did not amount to requiring the applicants to do something they were not already obliged to do, namely to work the hours determined by the operating unit.

[70] Once Pioneer concluded that consultations over the implementation of the four shift system had been exhausted, the company also went to similar lengths to persuade the applicants and the unions that the employees should apply for the various positions, and if they did not, should at least accept their appointment to the new positions designated by the company, to avoid retrenchment. The company’s evidence that everyone could be accommodated in the restructuring was

not disputed. It is understandable that the company did not envisage that anyone would lose their job as a result of the changes. It also explains why Pioneer was reluctant to issue a notice of possible retrenchments and institute retrenchment consultations. It contemplated implementing a reconfigured production process in which all the existing employees and a significant number of new staff would be engaged. It was not part of the applicants’ case that the positions they were invited to occupy or were appointed to were unsuitable or entailed demotion from their previous posts, except obviously that the appointments went hand-in-hand with the four shift production hours.

[71] What is questionable though, is whether the s 189 consultation process that Pioneer claimed to implementing when it reluctantly issued the supposed 189(3) notice on 1 February 2019, resembled anything like a consultation over possible retrenchments. Even if Pioneer never initially envisaged or intended any job losses might arise from the restructuring, by the time it issued the notice, it must have been apparent that there could be resistance by employees to accept positions which required them to work the new working hours. It followed, if no other solution could be found, that such employees might face retrenchment. Accordingly, it is arguable it should have initiated consultations in accordance with section 189(3), even if it felt retrenchments ought to prove unnecessary. Nonetheless, because ITU refused to accept that the consultations after the notice was issued on 1 February 2019 were supposed to be retrenchment consultations, it never called on the company to comply with the requirements of such consultations. As a result it also never approached the court on an urgent basis under s 189A (13) , as it was entitled to do, if it had believed the 189(3) consultations were a sham.

[72] What emerges from the above is that Pioneer’s genuine operational needs reasonably justified moving to a four shift system as part and parcel of a restructured production process which aimed to reduce inefficiencies and increase production volumes, and in which there were suitable jobs for all existing employees. Hence management saw no need for anyone to be unemployed as a result. It needs to be emphasised that, the economic drivers of increased efficiency and production were the primary reason for re-arranging the production process at Wadeville. That entailed significant capital expenditure on new plant as well as a re-arrangement of existing product lines. The new working hours were needed to achieve the overall objectives of the restructuring. The alteration of working hours was not a separable standalone measure. In any event, a change would have been necessary as the minister’s patience in granting exemptions for excess overtime hours was running out.

[73] However, because so many employees refused to accept the new positions as it meant that they would now have to work under a new schedule of working hours, then the company faced a dilemma of how it could accommodate them and still implement the other changes it wanted to make. No evidence was advanced how it could have accommodated them in their existing jobs, or other alternatives, while they continued to work their previous hours, yet the entire production process would be running on a continuous basis using a four shift sysetm. Their existing positions on a three shift system were plainly operationally incompatible with the same or similar positions established within the restructured production process.

[74] Mqatywa’s had testified that even Olivier was in tears when the applicants still rejected the alternative appointment on the brink of their termination of service. Indeed, it was a tragedy that it came to that, but it could have been avoided if the applicants had decided otherwise. Chakarakara had testified that the company wanted to retain the applicants because of their skills and experience and believed that it should have been unnecessary to retrench them, but their unwillingness to agree to work in the restructured work arrangements under the four shift system made it unavoidable.

[75] In the circumstances, I am satisfied that the company was trying to address bona fide economic objectives, entailing inter alia a change in working hour arrangements, and employees who wanted to continue working on the basis of working arrangements which were incompatible with the restructured process could not be accommodated. The main reason the applicants were dismissed was because Pioneer their positions and old working hours did not fit in with the implementation of the new work arrangements which Pioneer was lawfully permitted to institute, and they refused to accept suitable alternative positions. Even if workers perceived it differently, the practical change in working hour arrangements did not alter their obligations under their employment contracts, but only changed the manner in which their existing obligations were to be fulfilled. The company’s insistence on implementing the new working arrangements did not amount to demanding an amendment of the applicants’ legal conditions of service.

[76] Accordingly, on a preponderance of probabilities the real reason for the applicants’ dismissals was for bona fide operational reasons and not for the illegitimate reason of dismissing them because they refused to comply with a demand, which they believed entailed and unlawful alteration of their conditions of service. Put differently, even though their failure to accept appointments because of the change in working hours was part of the reason for their dismissal, the main reason was that the company could not implement the rest of its production restructuring plan and retain workers who would only work in terms of old working arrangements.

[77] Consequently, I am not persuaded that the applicants were dismissed contrary to s 187(1) ( c) of the LRA.

In the alternative, were the retrenchments substantively unfair?

[78] I have already dealt to a considerable extent with the legitimacy of Pioneer’s operational needs above. A few additional points need to be added.

[79] This is a case where it was not disputed that the operation of the Wadeville plant was not efficient and could be improved. Secondly, there was no criticism levelled at the company for seeking to restructure the production process. Thirdly, there was no evidence of a viable alternative to the four shift system being raised in the consultations, nor was evidence placed before the court of such an alternative. The only suggestion of an alternative to the four shift proposal that Mqantywa claims was proposed by labour representatives was of that the 45 hour week be implemented during Mondays to Fridays inclusive. However, no explanation could be provided how this could have been achieved using three shifts each working these hours within a five-day period. Quite apart from that, such a proposal did not deal with the problem of costly downtime required to clean production

lines if production was not conducted on a more continuous basis.

[80] Further, no evidence was tendered to show that the alternative appointments that they were offered were not suitable alternatives to their dismissal in the sense that the terms of those positions were materially prejudicial when compared with their existing jobs. Accordingly, the applicants’ retrenchment was also substantively fair.

Costs

[81] These types of dispute are reasonably complex and have vexed the constitutional court. ITU appears to have been misguided in its appraisal of its member’s legal rights, but I am not persuaded this was not a bona fide assessment. What is less justifiable is the belated attempt to vary the pre-trial minute without providing any substantial justification for doing so. The application was opportunistic and unwarranted and a cost award is made as a sign of the court’s displeasure.

Order

[1] The Second to Further Applicants’ dismissals by the Respondent were not automatically unfair dismissals in terms of s 187(1) (c) of the Labour Relations Act, 66 of 1995.

[2] The Second to Further Applicants’ dismissals were substantively fair dismissals for operational reasons.

[3] The Applicants’ application to amend the Pre-trial minute is dismissed with costs.

Lagrange J

Judge of the Labour Court of South Africa

Appearances:

For the Applicants:

E Masombuka, instructed by Mathopo Attorneys.

For the Respondent:

H Niewoudt ,instructed by Cliffe Dekker Hofmeyr

[1] At paras [31], [32], [46] and [47].

[2] At para [47].

[3] At paras [125] and [127].

[4] At para [12].

[5] At para [90].

[6] See paragraph [7] above.