South African Commercial Catering and Allied Workers Union v Massdiscounters (Pty) Ltd t/a Game and Another (J675/21) [2021] ZALCJHB 156 (29 June 2021)

In the labour court of South Africa, JOHANNESBURG

Not Reportable

case no: J675/21

In the matter between:

SOUTH AFRICAN COMMERCIAL CATERING

AND ALLIED WORKERS UNION

Applicant

and

MASSDISCOUNTERS (PTY) LTD T/A GAME

First Respondent

MASSMART HOLDINGS LTD

Second Respondent

Heard: 25 June 2021 (via videoconferencing)

Delivered: 29 June 2021 (via email to the parties)

Summary: Section 189A (13) application – alleged breach of an agreement reached at a consultation process. Such a breach does not amount to non-compliance with a fair procedure. Nevertheless such an alleged breach not proven. Where a consulting party compromises a facilitated process, such a party may not complain about non-compliance with a fair procedure. A facilitated process is consensual in nature and the Labour Court cannot compel another party to be part of it, in the circumstances where the complaining party abandoned a facilitation process. In order to succeed in a section 189A (13) of the LRA application, a party must demonstrate substantial and material breach of statutory obligation to comply with a fair procedure. Substantive fairness complaints like alleged unfair application of a selection criterion are to be dealt with in a section 191 of the LRA referral or power play. Hearing a matter as one of urgency requires a judicious exercise of discretion taking into account the interests of justice and the imperatives of

effective dispute resolution. Held: (1) The application is heard as one of urgency (2) The application is dismissed. (3) The applicant to pay the costs.

JUDGMENT

MOSHOANA, J

Introduction

[1] Of late the urgent Court is not an urgent Court if a section 189A (13) of the Labour Relations Act[1] (LRA) application does not feature on the urgent roll. The immediate question is: are those applications justified or not? In my view, 80% of such applications are not justified. That being my view, what then must the Labour Court do with regards to an award of costs, regard being had to the recent expressions by the Constitutional Court on the issue of costs awards in the Labour Court. Lately, the Constitutional Court in NUM obo Masha and Others v SAMANCOR Ltd (Eastern Chromes Mines) and Others[2] sternly rebuked the Labour Appeal Court (LAC) for not heeding the rule of practice that costs follow the result does not apply in labour matters.[3] Nevertheless, I shall in due course demonstrate that a costs order is warranted in this matter.

[2] An interdict is an extraordinary remedy issued where someone needs protection of his or her rights against unlawful interference or threat of unlawful interference. As a matter of law, no employee has a right not to be dismissed. An employee only has a right not to be dismissed unfairly. Section 189A creates a special dispensation for employees facing what may conveniently be termed a “mass retrenchment”. That dispensation compels an employer to comply with a fair procedure before effecting a dismissal. Should an employer not comply, a consulting party may obtain a remedy similar to a mandamus and or an extraordinary remedy of an interdict.

[3] In the present motion, the trade union South African Commercial Catering And Allied Workers Union (SACCAWU), is a consulting party. It consulted with Massdiscounters (Pty) Ltd (Game) over a mass retrenchment of employees. It seeks a declaratory relief, akin to an interdict to the effect that a consultation process initiated on 6 July 2020 is procedurally unfair. Further, it seeks an order setting aside a dismissal notice issued on 11 June 2021, dismissing its members, together with an order of reinstatement of those dismissed members. Notably, it seeks an order compelling the respondents to comply with a ‘fair procedure’ by complying with an agreement achieved at the very consultation process that it seeks this Court to declare as being procedurally unfair. Additionally, it seeks an order directing a reconvention of an abandoned section 189A of the LRA facilitation process. If the Court does not reinstate the dismissed members, to order the respondents to pay them compensation. It also prayed for an order as to costs. The

application is duly opposed by the respondents. Owing to the Covid-19 lockdown restrictions, the Court heard this application virtually

through a zoom application.

Background

[4] Facts pertinent to this application are to a very large degree common cause. For the purposes of this judgment, a full rehash of the facts is not necessary. It suffices to state that in July 2020, Game proposed to implement a significant change of the organisation of its stores. That change was branded “new store model” which entailed a widespread reorganisation of jobs and roles of its employees.

[5] Game realised that the implementation of this model may lead to a number of its employees being impacted and potentially face dismissal for operational reasons. The law, in particular section 189 (1) of the LRA, exalts it to commence a consultation process under those circumstances. Indeed, as exalted, on 6 June 2020, Game commenced the consultation process by issuing a written notice within the contemplation of section 189 (3) of the LRA.

[6] Section 189A (3) of the LRA provides that the Commission must appoint a facilitator if an employer has in its section 189 (3) notice requested facilitation. Game in its section 189 (3) notice requested facilitation of the consultation process. Indeed and as requested a facilitator was appointed to facilitate the consultation process. On 22 July 2020, the first consultation meeting was convened and facilitated. Three other facilitated meetings were convened for 30 July 2020; 13 August 2020; and 28 August 2020 respectively. Notably, a consensus was reached infra those facilitated meetings. That was that the facilitation process is canned and replaced with what became known as “high-level

direct consultations”. This agreement was reached on the fourth facilitated meeting of 28 August 2020. It is common cause that on 30 July 2020, SACCAWU did not attend the scheduled virtual meeting as it insisted on a physical meeting, this notwithstanding the Covid-19 restrictions and impact on health and safety.

[7] On 11 September; 9 and 29 October and 16 November 2020 respectively, high-level direct consultations were scheduled and held. Out of these consultation meetings, an agreement was reached regarding the selection criterion and implementation process. Allegedly included in this agreement was the working hours’ reduction from 45 to 40 hours. This is disputed by SACCAWU. At a point, SACCAWU considered this as a unilateral change of the terms and conditions of employment – a matter of mutual interest –

and referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). Having failed to resolve the dispute through conciliation, SACCAWU resorted to issuing a strike notice calling its members to participate in a protected strike action in support of the demand to restore the alleged unilaterally changed terms and conditions of employment. Game launched an application seeking to interdict the strike action. My sister Mahosi J issued an order, without providing reasons, dismissing the application by Game. It was agreed in one of the high-level consultation meetings that the legislated 60 day period will be extended to 31 January 2021, at which time dismissal for operational requirements may take place. Allegedly also agreed was the acceptance of the “new store model” which was predicated on the implementation of the 40-hour contracts.

[8] At these high-level consultation sessions a steering committee (steercom) was constituted. Its role was to sign-off on the selections which would thereafter be implemented. Delegates of SACCAWU on the steercom allegedly became uncooperative and refused to engage in the process to ensure the signing off of the mapping selection. Owing to the alleged uncooperative stance of SACCAWU, Game implemented the process. About 6 177 employees were mapped. 5 533 employees successfully secured positions. The remaining 335 employees were offered positions but failed to accept the mapped positions.

[9] Of the 335 there were members of SACCAWU as set out in annexure “Y” of the notice of motion. The reason why these employees rejected the offers to be mapped is that SACCAWU directed them to refuse. Having refused to accept the mapped positions on 11 and 12 June 2021, Game issued a notice of dismissal in terms of section 189A (7) (a) of the LRA.

[10] On or about 17 June 2021, the present application was launched to be heard on 25 June 2021. As indicated above the application is duly opposed by Game and the holding entity, Massmart Holdings Ltd.

Evaluation

[11] The irony that belies this matter is that SACCAWU seeks an order that declares the consultation process that commenced in July 2020 to be procedurally unfair, yet out of the said “flawed” process an agreement was achieved which SACCAWU now seeks an enforcement of. Generally, if the process is flawed anything achieved out of it is null and void. The saying of throwing the baby out with the bath finds expression.

[12] SACCAWU cannot approbate and reprobate at the same time. In the not so distant past, the deponent for SACCAWU testified in the strike interdict proceedings that the parties were not ad idem and that an agreement was not concluded. In the present motion SACCAWU contends that Game deviated unilaterally from an agreed placement and deployment of employees. This stance is paradoxical to the one adopted in the strike interdict motion.

[13] Nevertheless, in an application of this nature, in order to succeed a consulting party must allege and demonstrate a substantial and material departure from complying with a fair procedure. The statutory obligations of an employer are to commence a consultation process and to invite parties for consultation. There is no dispute that Game commenced consultations and issued a notice in terms of section 189 (3) of the LRA. Of momentousness, Game requested a facilitation process. The position adopted by this Court where a facilitator is appointed was rehashed by Van Niekerk J recently in the matter of NEHAWU v Minster for Trade, Industry and Competition and Another[4]. He aptly and firmly stated the following:

“[17] The question then is whether the second respondent has failed to comply with the process-related requirements of sections 189 and 189A. At the outset, it should be observed that where a facilitator is appointed to chair the facilitation process, the broad powers and duties of a facilitator conferred by both section 189A and Regulation 4 of the Facilitation Regulations, would ordinarily leave little scope for criticism of employer conduct in relation to procedure. The structure of section 189A and the powers and duties conferred on facilitators ought to have the result that facilitators manage the process and ensure that the statutory requirements of procedural fairness are observed. Put another way, one of the primary obligations of a facilitator is to exercise the powers afforded [to] him or her to ensure that the employer complies with a fair procedure.”

[14] I plentifully agree with the above sentiments, having said so myself before[5]. I might add, a facilitator acts as a police person of a fair process. In casu, SACCAWU had a police person of a fair process but chose to prematurely fire the police person as it were. Crudely put, a facilitator enters the shoes of an employer in so far as process-related fairness is concerned. In facilitating the process, a facilitator performs statutory functions which are reviewable in terms of section 158 (1) (g) of the LRA. I agree with Van Niekerk J in NEHAWU that if a consulting party is unhappy with any ruling dished out by a facilitator, such a party may approach this Court on an urgent basis to seek a review. I hasten to mention that this statement is not intended to open the floodgates for interlocutory applications

seeking to take all procedural rulings made in terms of regulation 4 (1) (c) on judicial review. I do state that the provisions of section 158 (1B) of the LRA finds application mutatis mutandis in such an instance.

[15] SACCAWU failed to make a case of any non-compliance with the statutory obligations of Game and/or the facilitator. Although the point of material non-joinder was not raised by Game, it was necessary for SACCAWU to have joined the CCMA and the appointed facilitator. Particularly in an instance where throw away contentions like “the facilitation process has materially failed to deal with the issues which require consultation in terms of section 189 read with 189A” are made. SACCAWU contends that the fourth meeting was not held and as such there is per se procedural unfairness. I disagree. It is undisputed that on 28 August 2020, a facilitated meeting was scheduled. This was the fourth

meeting in number. In terms of regulation 6 (1) the obligation to conduct up to four facilitation meetings is that of the facilitator.

To the extent that SACCAWU suggests that the fourth meeting was not conducted, as legislated, the blame must lie at the doorsteps of the facilitator who is not a party to this motion. The regulation absolves the facilitator from conducting up to four meetings if the dispute is settled and or parties agree to a lesser number of meetings.

[16] It is undisputed that SACCAWU is the one that suggested a lesser number of meetings and/or it compromised the facilitation process as it were. Game reluctantly agreed to this replacement of a facilitated process. Having done that, it is inappropriate for SACCAWU to raise the lack of the fourth meeting as a ground for procedural unfairness. The question whether the facilitation was suspended or abandoned is a red herring. The actions of the parties as initiated by SACCAWU and reluctantly acceded to by Game simply implies that the parties agreed to a lesser number of meetings, which agreement they are lawfully entitled to reach. Therefore, it is not necessary for this Court, in this motion, to determine and rule on whether the process was suspended or not. The legal implications of agreeing to a lesser number of meetings is that the facilitator is released and not obligated to conduct up to four meetings.

[17] SACCAWU contends that the facilitation process failed to deal with certain items which require consultation in terms of section 189 of the LRA; namely (a) alternatives; (b) severance pay; (c) assistance to be offered; and (d) selection criteria. Yet again, an aspersion is cast on the facilitator in his capacity as a chair of the facilitated meeting. In other words, the facilitator failed to, as expected, guide the consulting parties. Section 189 (2) obligates the consulting parties to attempt consensus on these issues. Thus, it becomes the duty of a facilitator to direct the parties to engage in a consultation over those issues. The

obligation to consult over those issues is an obligation of all the consulting parties. When SACCAWU nipped in the bud, as it were, the facilitated process, it was actually cutting off its nose to spite its face. Therefore, SACCAWU must live with the consequences of its unmitigated actions and cannot complain about procedural unfairness thereafter. This unguided and unmitigated action has come back to bite SACCAWU. A request that the parties must return to the facilitation process is not one that can seriously be made by SACCAWU. In any event the request for facilitation is one to be made by an employer and/or another consulting party. Game has made that request and that facilitated process was concluded by agreement between the consulting parties. The agreement – to have lesser meetings was reached on 28 August 2020, in the presence of the facilitator. This Court must safely assume that the agreement was sanctioned by the facilitator. It must be remembered that although facilitation has its advantages, it is not one to be imposed to the consulting parties. If SACCAWU was genuine and dead serious about the return to facilitation, it should itself have taken steps to contact the facilitator to recommence his abruptly ended duties. Being a supine critic does not augur well for SACCAWU. Had SACCAWU done that after the attitude adopted by Game in its letter of 3 June 2021, this could possibly have put a stop on the dismissal notice that was issued days thereafter. Mr Boda SC was unable to concede that there was nothing that could have prevented SACCAWU to do so. Indeed, there was nothing to have prevented it. The argument that the 15 days contemplated in section 189A (3) (b) of the LRA had long passed is extremely lame.

[18] SACCAWU contends that section 189A (8) obligated Game to re-refer a dispute to the CCMA before issuing dismissal notices. I disagree. This section only applies in instances where there is no facilitator appointed. In casu, one was appointed. The fact that the parties agreed to discharge the facilitator before concluding what the Regulations envisaged does not detract from the fact that a facilitator was appointed within the contemplation of section 189A (3) of the LRA. There can be no dispute that the appointed facilitator conducted the process in terms of the Regulations. This unknown facilitator did so until 28 August 2020. As indicated above, to the extent that SACCAWU alleges that he did not do so, it should have launched a mandamus application to compel him to perform his statutory functions. It is important to observe and note too that the 60 day period contemplated

in section 189A (7) of the LRA, elapsed on 20 August 2020. The legal implication of this fact is that (a) Game may lawfully give notice to terminate the contracts of employment and (b) SACCAWU may lawfully engage in power play or refer a dispute to adjudicate a dispute around the fairness of the dismissal. The 60 days was extended to 31 January 2021. Thus as early as 31 January 2021, Game was legally entitled to terminate. It is common cause that it only did so six months later – 11 June 2021. The argument by SACCAWU that Game was obligated by any section in 189A of the LRA to re-refer before terminating is not understood by this Court. It lacks any legal base and merit.

[19] The conclusion to reach is that Game has not failed to comply with a fair procedure as such there is no basis in law to declare the consultation process to be unfair.

[20] I now turn to the alleged non-compliance with an agreement achieved in a consultation process. The irony remains at large. SACCAWU seeks a declarator to the effect that the consultation process is unfair yet the same castigated process gave birth to the said agreement. It is opportune to deliver a comment that the initial stance by Mr Boda SC was that not all the terms of this agreement are binding on SACCAWU. With respect the argument that the binding effect of the agreement is accepted purely on the application of the Plascon-Evans principle is lame. The cardinal rule is that a party seeking to sue out of a contract must allege and prove the existence of that

contract. SACCAWU must not be ambivalent on this aspect. It must not be ashamed to boldly allege that on or about 18 November 2020, it on behalf of its members and Game concluded a written agreement. This Court understands why this ambivalent stance. At strike interdict proceedings SACCAWU denied that the parties were ad idem and concluded an agreement. It is now shy to blow hot and cold at the same time. It is unfortunate that now in order to put one foot at the door in a case of an alleged breach, the agreement must be alleged and proved. Ultimately, after a noticeable struggle, Mr Boda SC wisely jettisoned the stance and conceded that there was an agreement reached. On his submissions, the breach of the very agreement is one of the basis why the present application was conceived. He does concede, wisely so I dare say, that the agreement in question is a collective agreement. In this regard, he submits that the case of SACCAWU is one that alleges a breach of clause 8.6 of this agreement. The clause reads as follows:

“8.6 The parties shall then engage on the possible accommodation and or retrenchment of any affected Employees not mapped and/or who rejected any alternative of reasonable employment.”

[21] The suggestion by Mr Boda SC is that properly interpreted, this clause anticipates and actually accommodates any rejection by employees. In an instance where an employee is mapped and the employee rejects the mapping, for whatever reason, including an invalid one, then on Mr Boda SC’s submission, SACCAWU and Game must engage over such an employee’s future with Game. The pleaded case for SACCAWU on the alleged breach of clause 8.6 is the following:

“39 It is apparent that the first respondent took the view that those employees who did not accept the truncated working hours within Game, had rejected a reasonable offer of alternative employment, and , instead of being placed in the pool to be deployed in other brands of the second respondent, would be retrenched.

40 The respondent’s conduct is thus intended to penalize employees for not agreeing to truncated working hours and/or less or no overtime pay, by not affording them the opportunity to be mapped outside of Game brand. This approach is inherently unfair, and unconscionable as it seeks to circumvent the agreed process and/or the statutory duty to consult over alternatives in the facilitated process.

44 I draw this court’s attention furthermore to clause 8.6 of FA3 which states the following: …

45 Instead of accommodating the applicant’s complaint and arranging for a meeting at national level to engage and consult, the respondent flatly refused to do so…”

[22] What is to be deciphered from the pleaded case is that the main complaint of SACCAWU is that Game is seeking to punish the employees for refusing to accept a change to their terms and conditions of employment by retrenching them, when the correct and agreed approach,

in its view spelled out in no uncertain terms in their letter of 9 June 2021, is for the issue – the change of terms and

conditions – to be dealt with in a consultation at national level between the parties. Although reference is made to clause 8.6 in the allegations set out above, I agree with the submission by Mr Redding SC that the gripe in the letter of 9 June 2021 is about the truncation of working hours and it is not about breach of clause 8.6 per se. This complaint does not reside in a section 189A (13) application. It is apparent to me, as correctly conceded to by both representatives,

that the mapping agreement is nothing but a collective agreement. Section 24 of the LRA does provide a process as to how to resolve

disputes arising from a collective agreement. Section 191 (5) of the LRA oust the jurisdiction of this Court on disputes that requires

arbitration for resolution. SACCAWU laments that Game failed to comply with clauses 6-8 of the agreement. This is nothing but a

dispute around application and interpretation of the mapping agreement, which definitionally is a collective agreement. It has

less to do with compliance with a fair procedure within the contemplation of the section. In HOSPERSA obo Tshambi v Department of Health, KwaZulu-Natal[6], the LAC stated the following:

‘[17] …What then, can possibly be the dispute about the application of the collective agreement?

[25] In my view the phrase “interpretation or application” are not disjunctive terms and ought to be read as being related; i.e., disputes about what the agreement means and what it is applicable to.’

[23] The above spells out the true quibble of SACCAWU. In short SACCAWU laments that Game breached a term (and not a condition) of an agreement as spelled out in clause 8.6 as opposed to non-compliance with the statutory requirements stated in section 189 and 189A of the LRA. Section 213 of the LRA defines a collective agreement to be a written agreement concerning terms and conditions of employment or any matter of mutual interest concluded by one or more registered trade unions, on the one hand and, on the other hand one or more employers. The fact that section 23 of the LRA gives collective agreements legal force is unhelpful to any argument that a case for non-compliance with the statutory obligations in section 189 and 189A has been made.

[24] Game argues that the doctrine of fictional fulfilment has applied in this matter. Inasmuch as I do not agree with this argument, I take a view that in a section 189A (13) what is required is a non-compliance with a fair procedure a case which SACCAWU failed to make. I have no doubt in my mind that SACCAWU was busy filibustering in this regard. The process began in earnest on 6 July 2020 and culminated in June 2021. This is the longest consultation process ever. Mr Boda SC suggested that where a collective agreement suggests a process, failure to comply with such a process may be unfair and can be dealt with under a section 189A (13) application. That much I agree and have no qualms with having said so before. However, the collective agreement must have been concluded earlier before the contemplation to dismiss for operational requirements happens or begins to take shape. Section 189 (1) (a) of the LRA makes that point when it references consulting a person in terms of a collective agreement. If a collective agreement provides that in a contemplated dismissal for operational requirements union X must be consulted over listed issues and over a particular time period, an employer is obliged to comply because the parties had agreed upfront that that shall be a fair procedure to be complied with. In a mass retrenchment situation, if an employer fails to comply with the terms of that collective agreement then a party to be consulted may approach this Court under the rubric of section 189A (13) of the LRA for any of the legislated reliefs.

[25] However, in an instance where the parties commence a consultation process, not using a collective agreement but the process contemplated in section 189 and 189A, as it was the case in this matter, an agreement achieved infra such a process is not a process-related agreement, which may give rise to a claim of failure to comply with a fair procedure. The

mapping agreement achieved in this matter is not a process-related agreement as SACCAWU seeks this Court to have it but an agreement

over the implementation of the selection process. The agreement itself is captioned: “AGREEMENT IN TERMS OF SECTION 189A OF THE LABOUR RELATIONS ACT AS AMENDED- IN RESPECT TO THE MAPPING AND SELECTION OF AFFECTED EMPLOYEES”.

[26] Clause 1.2 of the agreement provides that the parties have reached an agreement in the manner in which the affected employees (both union and non-union) shall be either mapped into the new Game store model or deployed to comparable vacancies within the Massmart Group.

[27] Section 189 (2) (b) of the LRA obligates the consulting parties to attempt to reach consensus on the method for selecting the employees to be dismissed. Parties in this matter reached consensus by concluding the mapping agreement. Thus, I reiterate, the mapping agreement as concluded infra high level consultations meeting is not a process-related agreement but an agreement contemplated in section 189 (2) (b) of the LRA. To buttress the point, section 189 (7) (a) of the LRA provides that the employer must select the employees to be dismissed according to selection criteria that have been agreed to by the consulting parties. In other words implement the method as agreed to by the consulting parties. A breach of section 189 (7) (a) in whatever form is, as correctly submitted by Mr Redding SC, a breach of substantive fairness remediable by a referral in terms of section 191 or exercise of power play within the contemplation of section 189A (7) (b) (i) of the LRA.

[28] Mr Boda SC implored this Court to single out clause 8.6 and give it its literal meaning in order to emerge with a case punted for by SACCAWU. Unfortunately, that is not how agreements are to be interpreted. When it comes to interpretation this Court takes cue from the locus classis case of Natal Joint Municipal Pension Fund v Endumeni Municipality[7], where the Supreme Court of Appeal had aptly stated the following:

‘Interpretation is the process of attributing meaning to words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provisions appear; the apparent purpose to which it is directed and the material known to those responsible for its production’.

[My underlining and emphasis].

[29] When regard is had to the mapping agreement as a whole, it could not have been the intention of the parties that an employee, whose job security can be saved through mapping, would still reap the benefits of being consulted with over and over again until he either accepts a mapped position or is ultimately retrenched. Generally, the duty of an employer in avoiding a dismissal in a no fault situation is to make an offer of alternative employment and not to compel, as it were, an employee to accept the offer. This view finds legislative expression in section 41 (4)[8] of the Basic Conditions of Employment Act (BCEA).[9] The whole purpose of engaging in a consultation process is to save jobs. Where jobs are saved, as it was the case herein, when the members were mapped, what then becomes the point of a further consultation? In National Association of South African Workers (NASA-Workers and Another v Uniliver South Africa (Pty) Ltd[10], the following was said:

“[5] Having reached consensus, the obligation to consult ends. An application to compel a purposeless consultation is nothing but an abuse of a court process.”

[30] The primary purpose of the mapping agreement was set out in clause 2 of the agreement which specifically obligates Game to map as many of the affected employees as possible. One of the agreed deployment principles as set out in clause 7.1 was to utilize a 50km radius from place of residence to map employees as opposed to 50km from the current place of employment, however, the parties agreed that the Deployment Steerco (DS) may exercise flexibility in order to extend the radius where the affected employee resides in the rural areas. Under such circumstances an employee may refuse mapping inside the 50km radius because of his or her place of residence being in the rural areas and outside the 50km radius. In terms of clause 7.8 of the agreement, the names of all affected

employees that reject reasonable alternatives of employment through the deployment process will be provided to the DS. It is thus the duty of DS and not this Court to handle employees who rejects reasonable alternatives.

[31] The duty of the DS was to ensure that as many affected employees as is reasonably possible are accommodated through the mapping and deployment process. With all the above clauses, it cannot be a sensible interpretation of clause 8.6 to mean that even where the rejection is for invalid reasons, the parties must still engage over such employees. It is sensible for the parties to engage employees who rejected mapping for reasons of application of the radius principle. Any other interpretation would bring about the absurd results alluded to by the deponent on behalf of Game of mapping a particular employee over and over again.

[32] I agree with a contention by Game that in refusing to, amongst others, sign off and insisting on a further meeting SACCAWU was simply

seeking to render the entire process as agreed to dysfunctional. Where an employer is faced with such conduct, an employer is entitled

to take a decision to dismiss[11]. Game was entitled to take the decision to dismiss at the time it took it. This was a facilitated retrenchment process and the 60 day period contemplated in section 189 (7) (a) of the LRA had long passed as at 11 June 2021. It having elapsed on 20 August 2020.

[33] This Court cannot conclude until it says something about the allegation that SACCAWU directed its members not to accept the mapped positions. SACCAWU’s denial of this factual allegation is perplexing and ambivalent in the extreme and simply amount to a far-fetched denial which should be rejected out of hand as being false and an afterthought. The deponent testified that “I deny that SACCAWU advised members not to sign offers of employment. SACCAWU, as it is duty bound, identified the consequences of signing the unilaterally determined offers of employment.”

[34] This allegation that SACCAWU advised its members not to accept, is a serious aspersion cast against a trade union of SACCAWU’s

stature. It should not have been brushed off with a bare denial. SACCAWU was expected to disclose to this Court its fullest version

with regard to the alleged advice. It dismally failed to do so and that is worrying. The upshot of this is that SACCAWU failed to act in the best interests of its members to avoid their dismissal. It is not too difficult to observe that SACCAWU advised their members that Game was presenting them with a demand to accept unilaterally amended terms and conditions of employment, which act, in their ebullient view, is unlawful. It is by now settled law that in a situation where an employee refuses to accept amended terms and conditions of employment, an employer is legally entitled to retrench such an employee[12]. Game was legally entitled to retrench. Any allegation suggesting inherent unfairness is rejected out of hand. In any event this may be an issue that engages the jurisdiction of this Court under a section 191 referral if so engaged. The question whether Game has correctly applied the agreed selection criterion is a matter that snugly and comfortably lie in the substantive unfairness bed and not the procedural unfairness nest as it were[13].

[35] It is not unfair for this Court to respectfully comment that the advice to the members was bad advice. This is supported by SACCAWU’s

half-hearted attempt to disown the advice. Had it not been dispensed with, the employees would still be employed and kept their much treasured job security. Properly defined it was treacherous and perfidious advice beyond measure. Clive Thompson[14] observed that in a section 189 process what is required is shared interest in probing and confirming the employer’s business

analysis and prognosis, coming to terms with measures proposed to ensure continued business viability, and then addressing sympathetically and sensibly what this means for employees. The conduct of SACCAWU in dispensing with the so-called duty-bound advice, now being disowned, is far from what Clive Thompson meant to put across. For all the above reasons, this application is doomed to fail.

Costs

[36] I now turn to the issue of costs. In arguing against a costs award, Mr Boda SC passionately referred to the NUM obo Masha case. The Constitutional Court in NUM obo Masha, supra had the following to say:

“[31] … However, there may be instances where a costs order is warranted and in that case, reasons must be provided…”

[37] Pitifully, the Constitutional Court did not spell out those instances it had in mind. It is so that Jafta J in AMCU and Others v Ngululu Bulk Carriers (Pty) Ltd (In liquidation) and others[15] made it clear that where an employer and employee relationship ceased to exist the rule of costs following the results apply. However, what remains in the statute books is section 162 of the LRA. In Kabe v Nedbank Ltd[16], this Court concluded that the Zungu[17] judgment did not strip this Court of its discretionary powers in section 162 of the LRA.

[38] In reverberation, I come to the conclusion that the dictates of the law and fairness drives me to a conclusion that a cost order is warranted in this regard. According to the Constitutional Court judgment, the Labour Court is only required to give reasons[18]. Of course section 162 of the LRA provides the following guidance; (a) the requirements of law and fairness; and (b) taking into account the conduct of the parties on and off the field (Court). Having consciously terminated a facilitated process, which would have specifically ensured, secured and delivered procedural fairness, SACCAWU is not justified to launch the present application. Its conduct to blow hot and cold on the existence of the collective agreement leaves much to be desired. Much as it now attempts to ‘spin doctor’, as it were, the stance it took before Mahosi J, I remain unconvinced and unpersuaded about its recent stance in these proceedings. Mercifully Mr Boda SC, after a considerable struggle jettisoned this apparent dishonest stance. To put the spanner in the works, its conduct in advising members not to avoid dismissal by accepting the mapped positions and in turn use such employees as ‘guinea pigs’, as it were, in launching this application is one that is preposterous in the extreme and deserving of a scour and frowning upon.

[39] I have no hesitation in my mind to adopt the approach adopted by Van Niekerk J in NEHAWU. Accordingly in law and fairness, it shall be wrong to mulct the respondents with the costs of this application.

[40] Lastly, with regard to urgency, I am satisfied that this matter should be heard as one of urgency. In the exercise of my judicious discretion I do accept that this matter deserves a place in the urgent roll notwithstanding the pleaded contentions of Game.

[41] Accordingly, the application should not succeed for all the above stated reasons.

[42] In the results, the following order is made:

Order

1. The application is heard as one of urgency.

2. The application is dismissed.

3. The applicant should pay the costs of this application.

_______________________

G.N. Moshoana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr F A Boda SC

Instructed by:

Dockrat Inc, Sandton.

For the Respondent: Mr A I S Redding SC

Instructed by:

ENS Africa, Sandton.

[1] No. 66 of 1995, as amended.

[2] (CCT 154/20) [2021] ZACC 16 (22 June 2021)

[3] Compare with AMCU and Others v Ngululu Bulk Carriers (Pty) Ltd (In liquidation) and others 2020 (7) BCLR 779 (CC), where Jafta J sanitised the rule thus: “The rule that costs orders should not be granted in labour matters is based on the special relationship that exists between employees and employers. In most cases that relationship continues even after the resolution of a dispute by a court. Here the circumstances are different. The employer-employee relationship has ended. Therefore, the usual rule that costs follow the result should apply.”

[4] (J587/2021) [2021] ZALCJHB 98 (4 June 2021) at para 17.

[5] Solidarity obo Members and Another v Barloworld Equipment and Tawusa and another v Barloworld Transport (Pty) Ltd.

[6] (2016) 37 ILJ 1839 (LAC)

[7] 2012 (4) SA 593 (SCA).

[8] An employee who unreasonably refuses to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay in terms of subsection (2). See Lemley v CCMA and others [2020] 41 ILJ 1339 (LAC).

[9] Act 75 of 1997.

[10] [2020] 41 ILJ 1399 (LC).

[11] See FAWU v SAB (Pty) Ltd [2020] 41 ILJ 2652 (LC).

[12] Numsa and others v Aveng Trident Steel and another 2021 (2) BCLR 168 (CC)

[13] Telkom SA COC Ltd v Van Staden and others [2021] 42 ILJ 869 (LAC) where the LAC accepted that a criterion of selecting employees for dismissal due to non-placement is not

innately unfair. This matter is pending before the Constitutional Court.

[14] Thompson and Benjamin South African Labour Law Volume 1 AA1 – 502-503.

[15] 2020 (7) BCLR 779 (CC).

[16] (2018) 39 ILJ 1760 (LC)

[17] [2018] ZACC1 (22 January 2018).

[18] See the sentiments expressed in Eastcape Midlands Tvet College and Another v NEHAWU and others [2019] 7 BLLR 691 (LC)