IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CCT CASE NO: _________
LAC CASE NO: JA 56/2016 In the matter between:
SOUTH AFRICAN COMMERCIAL, CATERING & ALLIED WORKERS UNION (SACCAWU)
First Applicant
C MOENG AND OTHERS Second and Further Applicants
a n d
WOOLWORTHS (PTY) LTD Respondent
ANSWERING AFFIDAVIT
I, the undersigned,
COLEEN SLABBERT
do hereby make oath and state that:
1. I am an adult female and I am employed by the respondent (referred to below as Woolworths) as its employee relations manager.
2. The facts contained herein are within my personal knowledge, save where otherwise stated or apparent from the context, and are to the best of my knowledge and belief, both true and correct.
3. This affidavit is deposed to in response to the founding affidavit in respect of the applicants’ application for leave to appeal against portions of the judgment of the LAC1 under case number JA 56/2016 delivered on 19 September 2017 annexed to the founding affidavit and marked “PN3”.
4. The portions of the LAC’s judgment impugned in the application for leave to appeal are confined to the issue of remedy. The LAC substituted a reinstatement order granted by the Labour Court with an order of 12 months’
compensation in favour of the individual applicants. The applicants seek to challenge this aspect of the judgment.
5. The applicants also seek to pursue an automatically unfair dismissal claim in the Constitutional Court. This aspect was not pursued in the Labour Court or the LAC, with the applicants having reserved their right to pursue this issue should the matter be entertained by the Constitutional Court. In the circumstances, the applicants do not seek leave to appeal to the Constitutional Court against any judgment on this aspect – it is apparent that what they seek, instead, is to have this issue entertained together with their intended appeal.
6. There are two applications before the court which the applicants have brought on a combined basis: the first is an application for condonation for the late delivery of the application for leave to appeal against the LAC’s judgment;
whilst the second is the application for leave to appeal itself (coupled with an application to have an automatically unfair dismissal dispute entertained with the intended appeal). The latter application is referred to below as the main
1 Labour Appeal Court.
application.
7. The condonation application is not opposed by Woolworths, whereas the main application is.
8. I do not traverse the founding affidavit on an ad seriatum basis in this affidavit.
Instead, this affidavit is confined to Woolworths’ bases for opposing the main application.
BASES FOR OPPOSING THE MAIN APPLICATION
9. The challenges sought to be pursued by the applicants in the Constitutional Court are broadly as follows:
9.1 With regard to the order of the LAC in relation to remedy, I understand that the applicants intend to pursue the following main contentions in their intended appeal:
9.1.1 In the context of a section 189A retrenchment, an order of relief for procedural fairness is competent except where the remedy for substantive unfairness is reinstatement.
9.1.2 The LAC erred in substituting the reinstatement order of the Labour Court with an order of 12 months’ compensation.
9.2 With regard to the automatically unfair dismissal issue, the applicants seek to contest the correctness of the approach espoused by the SCA in National Union of Metalworkers of South Africa and Others v Fry's Metals
(Pty) Ltd [2005] 3 All SA 318 (SCA) in relation to section 187(1)(c) of the LRA2 as it read prior to the amendment of the LRA by way of the 2014 amendments.
10. These challenges are respectively dealt with below.
(a) The challenges regarding the LAC’s decision on remedy
11. In paragraph 26 the LAC’s judgment, the LAC observed that when a judgment is granted in respect of the substantive fairness of a section 189A retrenchment, an order granting relief for procedural fairness is no longer competent.
12. In paragraph 53, the LAC held that reinstatement was not feasible in circumstances where the full-time posts previously occupied by the individual applicants had become redundant, and that a compensatory order equivalent to 12 months’ remuneration ought to have been awarded to them.
13. In paragraph 54, the LAC stated that the order of the Labour Court should be replaced with an order providing that the application seeking relief in respect of the alleged unfair procedure is dismissed.
14. The LAC proceeded, in paragraph 2.3 of its order, to direct that the individual applicants be paid compensation equivalent to 12 months’ remuneration, and in paragraph 2.1 of its order, it dismissed the application seeking relief in respect of the alleged unfair procedure.
2 Labour Relations Act 66 of 1995.
15. I am advised that a statutory cap is placed on compensation in section 194(1) of the LRA, which provides as follows:
“The compensation awarded to an employee whose dismissal is found to be unfair either because the employer did not prove that the reason for dismissal was a fair reason relating to the employee’s conduct or capacity or the employer’s operational requirements or the employer did not follow a fair procedure, or both, must be just and equitable in all the circumstances, but may not be more than the equivalent of 12 months’ remuneration calculated at the employee’s rate of remuneration on the date of dismissal.” (Own emphasis.)
16. I am advised and submit that this section applies to all dismissals found to be unfair, inclusive of dismissals to which section 189A of the LRA applies.
17. I submit that in circumstances where the LAC awarded the individual applicants the maximum compensation permitted under section 194(1) for substantive unfairness, this left no room for additional compensation for procedural unfairness. This in circumstances where the 12 month cap applies to a dismissal found to have been substantively unfair, procedurally unfair, or both.
18. I submit that the correctness or otherwise of the LAC’s finding in paragraph 26 of the judgment is immaterial and cannot form the basis for the grant of the main application:
18.1 The statutory cap in section 194(1) would nonetheless have precluded the LAC from granting additional compensation to the individual applicants for procedural unfairness, and the result would thus have been the same through the application of the statutory cap.
18.2 I am advised that appeals are directed at challenging orders and not findings, and in this matter - in the light of the statutory cap - the order to the effect that 12 months’ compensation was to be awarded to the individual applicants cannot be successfully challenged with a view to obtaining a higher compensation order.
19. In the circumstances, I submit that the applicants have poor prospects of success in pursuing this issue on appeal.
20. Turning, next, to the applicants’ contention that the LAC erred in substituting the reinstatement order of the Labour Court with an order of 12 months’
compensation, the applicants seek to challenge a finding of fact by the LAC to the effect that the individual applicants’ positions were redundant after Woolworths did away with full-time work and implemented flexi-time work across the board. (As reflected in the LAC’s judgment, Woolworths now employs only flexi-timers – this on materially different terms and conditions of service than those applicable to the individual applicants – and had 16 400 flexi-timers at the time of the retrenchment of the individual applicants.)
21. In this regard, in the founding affidavit, it is contended that the individual applicants’ posts were not redundant, and that all that changed were the conditions of employment in place at Woolworths, with the individual applicants’ posts remaining intact.
22. I submit that the applicants ought not to be granted leave to appeal with reference to this issue for the following reasons:
22.1 It is well-established that challenges directed at findings of fact are typically not a basis on which leave to appeal should be granted.
22.2 In any event, I submit that it is not correct that the individual applicants’
posts continued to exist, allowing for reinstatement, after Woolworths did away with full-time working arrangements and implemented only flexi-time work, with materially different terms and conditions of employment. I am advised that in Equity Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 2507 (CC), this Court held as follows:3
“The ordinary meaning of the word ‘reinstate’ is to put the employee back into the same job or position he or she occupied before the dismissal, on the same terms and conditions. Reinstatement is the primary statutory remedy in unfair dismissal disputes. It is aimed at placing an employee in the position he or she would have been but for the unfair dismissal. It safeguards workers’ employment by restoring the employment contract. Differently put, if employees are reinstated they resume employment on the same terms and conditions that prevailed at the time of their dismissal. As the language of section 193(1)(a) indicates, the extent of retrospectivity is dependent upon the exercise of a discretion by the court or arbitrator.” (Own emphasis.)
22.3 I submit that two principles emanate from these pronouncements for present purposes:
22.3.1 Firstly, reinstatement is confined to a situation where an employee is placed back into the employer’s employ on the same terms and conditions that previously applied to his / her employment.
3 At para 36.
22.3.2 Secondly (and flowing from the first principle) reinstatement is not reasonably practicable (as contemplated in section 193(2)(c) of the LRA) where the employer has implemented a materially different regime with different terms and conditions of employment across the board, as occurred in this case. (There is a body of case law to the effect that the section 193(2)(c) exception to reinstatement applies where the employee’s job no longer exists.4)
22.4 I accordingly submit that the applicants have poor prospects of succeeding with their intended challenges relating to remedy on appeal.
(b) The section 187(1)(c) issue
23. The principle emanating from the SCA’s judgment in Fry’s Metals was that an automatically unfair dismissal under section 187(1)(c) of the LRA only arises where the dismissal was not final, and was instead conditional and intended to compel employees to accept a demand. This is referred to below as the Fry’s Metals principle.
24. The deponent to the founding affidavit states that the applicants will seek to persuade this Court that the SCA’s interpretation, in adopting the Fry’s Metals principle, was unduly restrictive.
4 See for example, Xstrata SA (Pty) Ltd (Lydenburg Alloy Works) v NUM obo Masha & others (2016) 37 ILJ 2313 (LAC) at para 11.
25. The founding affidavit fails, however, to set out precisely what principle the applicants intend to postulate in relation to the reach of the section, and how that principle would find application to the facts of this matter (so as to render the individual applicants’ dismissals automatically unfair). For this reason alone, I submit that the applicants have failed to demonstrate that they have good prospects of success in pursuing this issue in this Court.
26. There are two further reasons why, I submit, this Court should decline to entertain this issue.
27. Firstly, I am advised that a critical consideration in the assessment of whether this Court should entertain a matter, is whether the matter raises an arguable point of law of general public importance which ought to be considered by it.
27.1 The applicants seek to have this Court interpret section 187(1)(c) as it read prior to the 2014 amendments to the LRA.
27.2 The section read as follows prior to the amendments:
“A dismissal is automatically unfair if … the reason for the dismissal is
… to compel the employee to accept a demand in respect of any matter of mutual interest between the employer and the employee”.
27.3 The section, in its amended form, presently reads as follows:
“A dismissal is automatically unfair if … the reason for the dismissal is
… a refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer”.
27.4 In the explanatory memorandum to the Labour Relations Amendment Bill (which led to the amendment of the section) the rationale for the amendment is explained as follows:5
“The section is amended to remove an anomaly arising from the interpretation of section 187(1)(c) in [Fry’s Metals] which held that the clause had been intended to remedy the so-called ‘lock-out’ dismissal which was a feature of pre 1995 labour relations practice. The effect of this decision when read with decisions such as [Algorax6] is to discourage employers from offering reemployment to employees who have been retrenched after refusing to accept changes in working conditions.”
27.5 In circumstances where the section in issue is no longer in the statute book and is unlikely, in its previous guise, to be in issue in a future matter (given the improbability, in the light of the lapse of time since the amendment, that another matter pertaining to the period prior to the amendment will require determination in future), I submit that the matter does not raise an arguable point of law of general public importance.
28. Secondly, I submit that in circumstances where the amendment of the section was directed specifically at addressing the Fry’s Metals principle, the legislature accepted that the previous wording of the section formed the premise for the Fry’s Metals principle. As a result, I submit that the applicants have poor prospects of succeeding in challenging the Fry’s Metals principle based on their contention that Fry’s Metals was wrongly decided in the context of the wording of the section as it existed at the time. It would thus not be in the
5 Memorandum of objects on Labour Relations Amendment Bill, 2012.
6 CWIU & others v Algorax (Pty) Ltd [2003] 11 BLLR 1081 (LAC).
interests of justice to grant leave to appeal.
29. In the light of what is set out above, I submit that the main application should be dismissed with costs.
__________________________________
COLEEN SLABBERT
I CERTIFY that this affidavit was SIGNED and SWORN TO before me at PARKTOWN on this the 31st DAY of OCTOBER 2017, the deponent having acknowledged that she knows and understands the content of this affidavit, the Regulations contained in Government Notice No 1258 of 21 July 1972 and R1648 of 19 August 1977, having been complied with.
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COMMISSIONER OF OATHS
