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IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT DURBAN

CASE NO D47/97

DATE 1998/06/18

In the matter between:

E KHAWULA & ELEVEN OTHERS The Applicants

and

CROSSMORE CARRIERS CC Respondent

JUDGEMENT

REVELAS J: In this matter I give judgment as follows.

[1] The twelve applicants in this matter had been in the employ of the respondent as drivers and assistant drivers prior to the termination of their services for operational requirements.

[2] The respondent's business line is the transportation of fabrics and chemicals. The respondent had a chemical division and a fabric division. All the applicants before Court were employed in the respondent's fabrics division. Here, finished and raw leather and fabric products were stored and transported. The respondent’s trucks would transport goods such as cartons of shoes, amongst other things, for example.

[3] It was not disputed that in the fabrics department the respondent incurred losses due to theft and other reasons, the main reason being the loss of products, and the fact that the insurance company who insured the respondent’s cargo was no longer prepared to insure it or to pay out monies to the respondent in respect of the losses. The respondent also owed a huge amount of money to the bank and there was a liquidation application pending against the respondent.

[4] The respondent felt it had to take steps to salvage the situation, and short time was introduced in the fabrics department. This was resisted by the applicants, who felt that short time was imposed on them unfairly.

[5] Initially the applicants' case was that there was no fair reason for the termination of their services and that the respondent just wanted to get rid of them.

[6] Ultimately, the case conducted during the trial before Court was that the respondent did not follow the correct procedure in terms of section 189 of the Labour Relations Act 66 of 1995, (hereafter "the Act"), in terminating their services. Therefore, the reason for the retrenchments was not attacked by the applicants’ representative. An attack was levelled against the procedural fairness of the retrenchment.

[7] The initial dispute was referred to the Commission for Conciliation, Mediation and Arbitration, hereafter, "The CCMA". The respondent did not attend the conciliation.

[8] The dispute was then referred to the Labour Court. Default judgment was granted against the respondent, due to the fact that the respondent was not before Court. It later transpired that, due to an incorrect fax number, there was no communication with the respondent. The judgment given by myself was subsequently rescinded and the matter proceeded with trial. The only issue remaining in that default matter was the question of costs, to which I will return shortly.

[9] The first applicant, Mr Khawula, was the only witness on behalf of all the applicants. He stated that short time was simply imposed on employees during September 1996, as was the retrenchment. No meetings were held with employees or their union, the Turning Wheel Workers Union (“the Union”).

[10] When the first applicant, also a shop steward, was shown the minutes of a meeting held between management and employees (including himself) regarding short time on 20 August, he was at a loss to explain this meeting and tried to distance himself from it during cross-examination. My impression was that the first applicant had lied about this meeting. There was a further unsatisfactory aspect of his evidence. The first applicant categorically denied that the union, namely the Turning Wheel Union, referred to hereinbefore, discussed anything or did anything on behalf of its members, in respect of the short time which was introduced. It was also stated that management never spoke to the union. It was quite apparent, from several letters exchange between the General Secretary of the union, Mr Madime, and the management of the respondent, that the issues of short time as an alternative to retrenchment were discussed. This, the first applicant could not explain.

[11] It appeared from the Union’s letters that initially, the union official, Mr Madime, was rather hostile to respondent and rebuked management in his letters for their “attitude”. After the perusal of necessary documentation furnished by the respondent regarding the respondent’s financial affairs, Mr Madime understood, that the respondent was in financial difficulties at that point in time.

[12] According to Mr Ramsamy, the owner of the business, the applicants were not willing to consider other positions. It was the evidence of Mr Madime that, due to the discussions with Mr Ramsamy, retrenchment would be the only other alternative to short time or relocation. He as the representative of the affected employees, accepted that there was a fair reason to retrench.

[13] Mr Ramsamy testified that the applicants would report at the fabric division and not do any work and simply stand around watching other persons work. It was clear to him that they were not interested in doing work where they would be assistant drivers on the long-distance chemical trucks, which was less favourable or less pleasant working conditions than the fabrics section.

[14] The fabrics section had to close down and that was a fact accepted by the union, but apparently not by the applicants. At this stage it is instructive to note that the union is not a party to these proceedings.

[15] Much was made of the fact that Mr Madime had testified that after the short time issue was resolved with the company, he left the respondent’s premises for the last time. He explained that he felt that a retrenchment was avoided by the short time and thereafter he heard nothing until he was told, through his secretary, that the applicants had been retrenched. He did however say that he dealt with individual complaints from employees, including the first applicant pertaining to their own short time hours.

[16] In this regard it is very important to note that the short time was clearly introduced to avoid the retrenchments. If the applicants failed to participate therein or to co-operate in relocation to other sections, such as the washing bay, which was offered to them, then, the respondent cannot be accused of not considering alternatives.

[17] The respondent in this matter took measures to avoid retrenchment, as it is required to do by section 189 of the Labour Relations Act, No 66 of 1995, (hereafter “the Act”). It attempted to resolve the issue and to find alternative employment. Hence relocation to the wash bay was suggested, as well as long-distance travelling and initially, the short time, none of which suited the applicants.

[18] According to Mr Ramsamy, two or three meetings were held to discuss the issue with the shop stewards. Much was made of the fact that there were no minutes of these meetings. What is important is that two people testified about these meetings, namely Mr Ramsamy and Mr Madime. Nothing in their evidence led me to believe that they were lying. On the other hand, first applicant was clearly lying in his evidence, when he stated that he had no knowledge of any negotiations between the union and the employees. It is quite clear that he wanted to distance himself from these arrangements, to advance the initial case which was put before Court, namely that there was a sinister reason behind the retrenchment and that no fair procedure was followed. I therefore have to accept, even in the absence of minutes, that these meetings were in fact held. I am entitled to take into account the oral evidence presented in respect thereof. The absence of minutes does not render the existence of a meeting a nullity. That is only common sense. In the circumstances, I find that these meetings were held and that alternatives to retrenchment were discussed.

[19] The general trend of the evidence before me indicates that the respondent really attempted to avoid retrenching the applicants. The one mistake the respondent did however make, is that no severance pay was paid out to the applicants in this matter. It was simply forgotten, according to Mr Ramsammy, by his accounting department.

[20] The respondent’s representative conceded that the severance payments should be made. I believe it would be fair if interest is paid out on the amounts that were originally owing. I therefore will make an order in respect of these amounts and interest thereon.

[21] In so far as my findings as to the fairness of the termination of the applicants' employment is concerned, I find that there was no procedural unfairness in the manner in which the applicants were retrenched.

[22] The question of costs arises. For the reasons set out in my judgment pertaining to the rescission application, I am not prepared to make a costs order against the applicants in respect of that application. In respect of the trial, I have considered that the applicants brought the respondent to court on a case which was amended later, only because it couldn’t be proved and the applicants led false evidence before the Court. I also took into account that they were not paid their severance pay by the respondent, who, despite its financial difficulties, is in a far better financial position than the applicants. If the applicants had not come to court, they perhaps would never have been paid severance pay due to them.

[23] I am therefore not prepared to grant a costs order against the applicants in respect of this trial.

[24] In the circumstances, I make the following order.

(1) The application is dismissed.

(2) The respondent is required to pay the applicants one week's wages for every year of service worked, in terms of the tender contained in paragraph 9 on page 24 of the bundle in this matter as follows :

Z S Mthembu - R948,84;

S H Ndlovu - R711,63;

P M Ngwaba - R711,63;

E S Khawula - R711,63;

S D Jili - R711,63;

X Damane - R711,63;

W H Duma - R237,21;

Z B Sithipula - R237,21.

(3) Interest is payable on the aforesaid amounts at the rate of 15,5% from the date of their dismissal until payment thereof.

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E REVELAS

ON BEHALF OF APPLICANT:

L C KHESWA

instructed by

Kheswa, Khuzwayo & Partners

ON BEHALF OF RESPONDENT:

MR L PILLAY

instructed by

Murugasens

DATE OF JUDGMENT: 18 JUNE 1998

This judgment is availble on the Internet at the following website: http//www.law.wits.ac.za/labourcrt

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