(Held at Johannesburg) Case No: J221/97 In the …

1 IN THE LABOUR COURT OF south africa (Held at Johannesburg) Case No: J221/97In the matter betweenUNITED people 'S union OF south AFRICAF irst Applicant85 othersSecond and further ApplicantsandGRINAKER DURASETR espondent JUDGMENT The second to 85th applicants were dismissed by the respondent in early February 1997. At all material times they were employed at the respondent's Brakpan factory and were members of the first applicant, which became the recognised bargaining agent for the factory's hourly paid employees when it achieved majority status in January 1996. The respondent is a manufacturer of cementatious products for the mining and transport industry, the most significant of which for purposes of this matter are concrete electrification poles and sleepers for the railways applicants now claim that their dismissal was unfair on a number of grounds.

2 The essence of their case, however, and the issue which this Court is called upon to decide in terms of section 188 of the Labour Relations Act 66 of 1995 ("the Act") is whether the dismissal was for a fair reason based on the respondent's operational requirements and whether it was effected in accordance with a fair procedure. In assessing both aspects, the provisions of section 189 must be taken into account, with emphasis on those aspects placed in issue by the 189 provides, in summary, that when an employer contemplates dismissing employees for 1operational reasons it must consult any person whom it is required to consult in terms of a collective agreement or, if there is no such agreement, with the registered trade union whose members are likely to be affected or, if there is no such trade union , with the employees themselves or their representatives nominated for the purpose.

3 Furthermore, the employer must inter alia disclose in writing to the other consulting party all relevant information, allow the other party to make representations and respond thereto, all with a view to attempting to reach consensus on appropriate measures to avoid or minimise the number of far as this Court can gather from the crudely drawn statement of case and various additional allegations that surfaced during the lengthy trial, the applicants ' allege that the respondent did not comply with section 189 because it did not honour a colective agreement, failed to consult with the first applicant or with the employees about the retrenchment in general or the selection criteria in particular, had no good reason to retrench the applicants , and failed to comply with a further agreement that it would re employ them as and when jobs became available thereafter. I mention in passing that the latter averment was disposed of during the course of the trial when the Court ruled that the alleged failure to re employ the applicants fell outside its jurisdiction because it is arbitrable in terms of item 2(1)(d), read with item 3(4)(b)

4 , of Schedule 7 to the thrust of the respondent's defence was that it had compelling reasons to retrench the applicants , that it did so only after exhaustive attempts to avoid that expedient by less drastic measures, that it consulted or attempted to consult with either the shop stewards or officials of the first applicant, or both, throughout the process, that it tried in vain to involve the first respondent in meaningful consultations over selection criteria and severance pay after finally taking the decision to retrench, and that to the extent that consultation fell short of the requirements of the Act the dilatoriness and obstructive attitude of the first respondent's officials, in particular that of Mr E Luthuli, (who represented the applicants in these proceedings) was to assessment of the merits of these opposing viewpoints can only be properly assessed against the background of events leading to the individual applicant's retrenchment.

5 Before sketching it, I hasten to point out that the Court relies on the oral and documentary evidence of the respondent which was either not specifically challenged by the applicants or was merely rejected by blanket denials which had no foundation. Specific facts in dispute will be dealt with story begins in September 1997, when the respondent's management met the six shop stewards of the first applicant and informed them that there had been a drastic reduction in orders for poles by its principal customer for that product, Eskom, and that in consequence a cut back in production was necessary. Alternatives placed before the meeting by management ranged from early leave, through short time to a lay off and, according to the respondent's human resources manager, Mr Vaughan Granier, the shop stewards were warned that if there was no improvement rationalisation would have to be considered. Seven days after that meeting, the respondent addressed a letter to the first applicant (which like all subsequent correspondence was marked for the attention of Mr E Luthuli), placing on record the respondent's desire to meet him urgently at the Brakpan site, and that due to the falling off of orders production capacity was far exceeding customers' requirements, and the warning that if the situation did not improve the retrenchment of about 80 employees would have to be considered.

6 A further meeting with the shop stewards was held on 30 September 1996 in which management explained the problem with orders and its consequences in more detail and intimating again that should retrenchment take place about 80 employees would be affected. A provisional list of names was also tendered by management which, according to Mr Granier, was simply a computer list of staff sorted by date of entry into service, with a line drawn across it 80 names from the bottom. The minutes reflect no input from the shop stewards other than an undertaking to report back to the workforce, and a first intimation that rivalry existing between members of the first applicant and the union that it had recently replaced as sole recognised bargaining agent (CAWU).The first meeting attended by Mr Luthuli was convened on 2 October 1997. The minutes thereof record that management explained that the list produced at the previous meeting was "provisional" and that the worker representatives agreed to keep it confidential.

7 Three options were tabled by management: first , a reduction of the team making poles from 80 to 33 to produce 96 poles a week; second, a split of the current workforce into two teams, each to work two or three days per week; third, a lay off until the annual shut down in December. The employee delegation indicated a preference for short time on a factory wide basis, to which management responded that such a measure would be disruptive for various reasons. Ultimately, however, management came back, somewhat reluctantly it seems, with the proposal that 80% of normal hours could be worked throughout the a further meeting on 4 October 1996 (at which Mr Luthuli was not present) the shop stewards stated that they would accept "option 4" (which was not tabled at the previous meeeting) ie that the workers in the poles section would be split into three teams of 25, each working at normal pay rates, with work limited to 3one line. The implementation of this system was preceded by an assurance by management that the working of short time would not affect leave and bonus benefits due at the year end.

8 On 18 October 1996 a disagreement arose over what the company alleges had been previously agreed to. On 1 November 1996 the respondent indicated that since in terms of the short time regime in the poles section 96 poles were still being produced daily, a storage problem was being created. Once again, it was clearly intimated to the first applicant that since short time was no longer an option "the company will be forced to consider retrenchments".However, the respondent did not resort to dismissal. On 5 November 1996 a a further meeting was held against the backdrop of a work stoppage. Mr Granier later recorded inter alia (and this went unchallenged by the applicants ) that the workers tabled proposals and understood that "in January they might face retrenchment, which would be by means of LIFO with skills retention". On 7 November 1996 a lay off was implemented in terms of a signed agreement in the section producing pre stressed poles and sleepers (the "long line section", so named because of the technique used for making these products).

9 A further term of the agreement was that "the company would not address any further issues regarding the lay off without the presence of the Mr E. Luthuli on site and he undertook to be available within 3 days of any request by the company". Mr Granier explained that this term was included because Mr Luthuli had expressed concern that management was communicating directly with the Granier testified that several attempts were made thereafter to contact Mr Luthuli telephonically, and written messages were then sent to him on 19 and 20 November 1996 expressing concern at his unavailability for a further meeting, and requesting him to contact the respondent. Mr Luthuli then confirmed his availability for 26 November 1996, but another union official, Mr D Luthuli, arrived in his stead (with an agenda that according to management was new) and confirmed that neither he nor Mr E Luthuli would be available for a further two weeks.

10 Nothing was achieved at that meeting. According to Mr Granier, management had conceived its purpose to be the finalisation of a retrenchment procedure which, along with gievance and disciplinary procedures, had been left for further negotiation after the main recognition agreement was accepted by both parties in January 1996. The only official of the first applicant who could meet the respondent before shut down in mid December was a Mr Ntsoane, whos decliend to discuss the proposed retrenchment procedure andprroposed that the issue be deferred until the new january 1997, the respondent according to its version commenced attempts to contact Mr E Luthuli from 8 January. Having received no reply from the first applicant, the respondent informed it on 14 January 1997 that there was no option "but to consider further steps". It confirmed, however, that they would not be taken without consultation. A further communication in similar vein was sent on 16 January, and the first applicant responded with an undertaking to meet on 20 January, which was honoured.