The labour court of south africa, johannesburg

89. 
    All the above being the case, can it be said that the respondent’s decision, and subsequent course of action, was genuine and pursuant to proper operational reasons? In my view, no doubt, considering what happened in the consultation process as a whole. As the Court said in Latex Surgical:²⁰
    

‘The function of the court in scrutinizing the consultation process is not to second guess the commercial or business efficacy of the employer's ultimate decision but to pass judgment on whether such a decision was genuine and not merely a sham. The court's function is not to decide whether the employer made the best decision under the circumstances, but only whether it was a rational commercial or operational decision, properly taking into account what emerged during the consultation process.’

90. 
    For all the reasons as set out above, I thus conclude that the applicant’s dismissal by the respondent was substantively fair.
    

Was the dismissal procedurally unfair?
The applicant has raised eight individual grounds as to why she believes her dismissal was procedurally unfair. These are all articulated in the pre-trial minute and in summary, suggest that she was not properly consulted on the consultation topics in terms of Section 189(3), her questions and concerns were not answered, she was not provided with proper information, the respondent did not consult on selection criteria, the respondent did not apply its own retrenchment policy, and the respondent consulted in bad faith.

91. 
    There is a simple answer to the applicant’s case of procedural unfairness. The fact is that the applicant could have avoided her retrenchment by simply accepting the alternative positions that were actually available to her. As fully discussed above, these were proper alternative positions which the applicant was fully competent to fill, of equal status, and would leave her salary and benefits unchanged. All this being the case, any case of procedural unfairness is of no consequence, even if it existed, as the applicant could have avoided her own retrenchment.
    

92. 
    In Arthur Kaplan Jewellery (Pty) Ltd v Van De Venter²¹ the LAC dealt with an appeal against a finding of procedural unfairness by the Labour Court in an instance where the employer indeed failed to consult as contemplated by Section 189. The Court said:²²
    

‘Appellant’s failure to so consult is not, however, determinative of the dispute. The key issue concerns appellant’s subsequent conduct. …’

The Court concluded as follows, in finding the dismissal to be nonetheless fair:²³
‘In my view, the evidence is compelling that the alternatives which were proposed to respondent were reasonable and that she did not provide sufficient justification as to the reasons for refusing to accept one of these alternative positions. Accordingly, appellant acted neither substantively nor procedurally unfairly in the manner in which respondent was ultimately retrenched. On these facts it is therefore clear that even though the appellant may have acted unfairly in not consulting respondent about the closing down of the training department, such unfairness did not lead to her losing employment with appellant. She lost employment with appellant because she failed, without any justification, to accept one of the jobs offered to her by appellant and for that, she only has herself to blame.’

93. 
    In Fidelity Springbok Security Services (Pty) Ltd v SATAWU obo Chabalala and 7 Others²⁴ the LAC adopted a similar view and said the following, specifically referring to an offer of alternative employment in the context of an allegation of unfair retrenchment:
    

‘… the dismissed employees did not accept this offer. If they had accepted it, the dismissed employees would not have been dismissed and there would have been no claim for unfair dismissal. They are the authors of their own misfortune and should not complain. Even if there may have been unfairness in the way in which the appellant handled the consultation process or any aspect of the matter prior to that offer, such unfairness would not have been in issue if they accepted the job offer.”

94. 
    Recently, and in SA Transport and Allied Workers Union on behalf of Dube and Others v Fidelity Supercare Cleaning Services Group (Pty) Ltd²⁵ the Court applied what had been said in Arthur Kaplan and Chabalala and Others, and held:
    

‘… When the respondent considered the alternatives, and an opportunity was offered to her, Dube never applied for a position under the new Wits contract and instead sought and pursued a disability benefit. I find that Dube could have avoided her own dismissal by applying for a position as supervisor on the new Wits contract. In this regard, the undisputed evidence of Croukamp was that if Dube had applied for a position, Croukamp would have given her a position. In fact, Croukamp pursued Dube to enquire why she had not applied for a position, and it was then that Dube expressed her wish to seek a disability benefit. Because of these critical considerations, the issue of procedural fairness is actually of no consequence, as the respondent did not want to dismiss Dube and it was within her own power to avoid her dismissal.’

I agree with this reasoning, and find that it applies in casu.

95. 
    Accordingly, and because the applicant could have avoided her own retrenchment by simply accepting what was on the table or applying for the positions she could have been placed in, she simply cannot be seen to now complain about procedural unfairness, even if it is accepted that the respondent did not properly consult with her on the basis she is contending to be the case. Her retrenchment must nonetheless be considered to be fair. That should be the end of the case of procedural unfairness raised by the applicant.
    

96. 
    There is however a further consideration. That is the conduct of the applicant in the course of the consultation process. In my view, a consideration of the transcripts of the consultations and the correspondence that passed between the parties shows that the respondent was bona fide in conducting the consultations and genuinely sought to avoid the applicant’s retrenchment in these consultations. But where it comes to the manner in which the applicant participated in the consultations, this in my view smacks of mala fides. What is patently apparent is that the applicant adopted a position from the start, which has been extensively dealt with above. The applicant closed her mind to any suggestion contrary to the position she adopted. No amount of effort on the part of the respondent, which was considerable, could sway her. The applicant was not intent on any compromise. She wanted what she said, and that was that.
    

97. 
    Something must also be said about the method of conducting consultation by way of script, as the applicant did. This is not meaningful participation in the consultation. It can serve no purpose for a party to attend a consultation, read from a pre-prepared script (which is also handed into the consultation like it is some or other written argument), refuse to consult on this, and demand that answers be given in writing. In fact, what the transcripts of the consultations reveal is where the respondent tries to engage with the applicant she first listens, but does not in turn engage. Once the respondent is finished with what it suggested, the applicant starts reading her script, and this on some occasions did not even have a bearing on what was suggested to her. The applicant needed to engage the respondent. Open discussions needed to have been held between the parties in the consultations, which had to be dynamic in nature, adapting to the events and submissions as they transpired in the process itself. A scripted participation in the consultations is indicative of a closed mind.
    

98. 
    In Blue Financial Services²⁶ the Court held:
    

‘Fair procedure primarily requires that the parties engage in a meaningful joint consensus-seeking process. This obligation, which has its origins in Johnson & Johnson v Chemical Industrial Workers Union (1999) 20 ILJ 89 (LAC), requires at least that the parties attempt to reach consensus on the issues listed in s 189(2) and (3). More precisely, the employer must invite representations on these issues from the appropriate consulting party, seriously consider and respond to any representations that are made. Both parties are required, in good faith, to seek consensus. This is not a mechanical process - meaningful joint decision-making requires that the parties act with the honest intention of exploring the prospects of agreement. If no joint consensus-seeking process has occurred, the court is obliged to determine which party was responsible for this state of affairs.’

99. 
    The respondent tried its level best to encourage participation from the applicant. In fact, Mashigo tried to explain to her, in writing as she demanded, why her approach to the consultation was not conducive to having proper and effective consultations as envisaged by the LRA. Instead of taking what was sound advice to heart, the applicant accuses Mashigo of criticising her and acting in bad faith. I have no doubt that the applicant had very little intention, from the start, in engaging the respondent in consultations. Should there be any failure in the joint consensus seeking process, the applicant was responsible.
    

100. 
     I also find it concerning that the applicant continued to press the option of a voluntary separation agreement and package, when the respondent made it clear on several occasions that this was not an option as it wanted to retain the applicant’s services and believed there was a viable option for her to stay. The applicant’s approach in this respect yet again places a question mark over her bona fides.
     

101. 
     Therefore, the approach of the applicant to the consultations must similarly stand squarely in the way of the legitimacy of any case of procedural unfairness. In this regard, reference is made to SA Society of Bank Officials v Standard Bank of SA²⁷, where the Court said that
     

‘Consultation is a two-way street’.

102. 
     That being the case, and as held in Johnson and Johnson (Pty) Ltd v Chemical Workers Industrial Union²⁸:
     

‘The achievement of a joint consensus seeking process may be foiled by either one of the consulting parties.’

In this instance it was the applicant. In Visser v Sanlam²⁹ the Court held:
‘The process of consultation envisaged in s 189(2) involves a bilateral process in which obligations are imposed upon both parties to consult in good faith in an attempt to achieve the objectives specified in the section. In my view, the respondent fulfilled its obligations in terms of s 189(2). If any conclusion is justified, it is that appellant failed to engage adequately in the consultation process envisaged in the section. Accordingly, it cannot be said that the retrenchment of appellant was procedurally unfair.”
The same reasoning would in my view equally apply in casu.

103. 
     Similarly, and in Smith and Others v Courier Freight³⁰ the Court said the following:
     

‘I find on a balance of probabilities that the union was responsible for frustrating the restructuring process to the detriment of its members, the employees. In NUMSA & others v Kaefer Thermal Contracting Services (Pty) Ltd [2002] 6 BLLR 570 (LC) the court held that where the consultation process has been frustrated it is not for the party who caused the frustration to complain that there was non-compliance with the consultation process. …

I am satisfied that the employer made genuine attempts to engage with the union on the retrenchment process. However, it could not allow the union to delay the process of restructuring indefinitely. The union overplayed its hand and must now accept the consequences of its ill-advised decision unnecessarily to delay the consultation process. In the light of the aforesaid, I believe there was substantial compliance with the provision of s 189 of the Act by the employer.’

104. 
     The applicant called Waldemar Budeli (‘Budeli’) as a witness who was also subjected to the retrenchment process, by the respondent. His evidence was of no value in deciding this matter. His circumstances were entirely different, and ultimately, there was not a suitable alternative position for him to fill. He also did not complain about the retrenchment process, per se, but just said it was, in his view, not ‘transparent’. His testimony does not assist the applicant.
     

105. 
     It is therefore my conclusion that the applicant’s retrenchment, for the reasons set out above, cannot be considered to have been procedurally unfair. If there were any failures in the conducting of the process, these did not emanate from the respondent, but can squarely be placed at the door of the applicant. Overall, I am satisfied that the respondent properly consulted the applicant, and that it was the applicant’s own conduct that gave rise to her ultimate dismissal. I find that the applicant’s dismissal must be considered to be procedurally fair.
     

The issue of severance pay

106. 
     This then only leaves the issue of severance pay. In terms of Section 41(4) of the BCEA³¹:
     

‘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)’

107. 
     There can be no doubt that the options of brand manager and marketing manager available to the applicant were proper alternatives of the kind as contemplated by Section 41(4). Added to that, and as stated, the applicant could have simply taken up the brand manager position, which was available without qualification. As I have discussed above, the applicant’s failure to take up these alternatives is certainly unreasonable. Because the applicant refused to take up these alternatives, she had forfeited her right to severance pay in terms of the BCEA.
     

108. 
     In Irvin & Johnson Ltd v Commission for Conciliation, Mediation and Arbitration and Others³² the Court held:
     

‘It seems to me that the effect of s 41(4) is that, where the employer has arranged alternative employment for an employee who is facing a (possible) dismissal for operational requirements, either in his employ or in the employ of another employer, three scenarios are possible:

•      The one scenario is that the employee unreasonably refuses such alternative employment in which case s 41(4) applies and the employee forfeits the right to severance pay.

•      The second scenario is where the employee reasonably refuses such alternative employment in which event he is entitled to payment of severance pay.

•      The third scenario is where the employee accepts the alternative employment in which event he also forfeits the right to severance pay.

It will be seen from the three scenarios set out above that in no scenario does an employee get both the severance pay and the alternative employment. However, there is a scenario where he gets neither. That is where he has himself to blame because he has acted unreasonably in refusing the offer of alternative employment.’

109. 
     The conduct of the applicant thus resorts squarely within the parameters of where an employee does not get severance pay even where the employee did not get an alternative position. In an actual scenario comparative to the conduct of the applicant, the Court in Pretorius v Rustenburg Local Municipality and Others³³ said:
     

‘…the appellant's rejection of the first respondent's offer of alternative employment and his insistence that he be offered the same position or a position at the same or a higher level is, in all the circumstances of this case, quite unreasonable. Accordingly, he forfeited whatever right he might otherwise have had to severance pay. He was going to suffer no reduction of salary. The position he was offered was quite a senior position. The first respondent had to try and accommodate all the employees. He was to report to the municipal manager. The first respondent made it clear that it needed his technical skills.’

Clearly, the same scenario applied to the applicant in the current proceedings, and she must thus be visited with the same consequences.

110. 
     In the circumstances, the applicant had forfeited her right to severance pay, and I conclude that she is not entitled to the payment of severance pay.
     

Conclusion

111. 
     Therefore, the applicant’s dismissal by the respondent for operational requirements must be held to have been both substantively and procedurally fair. The applicant’s unfair dismissal claim thus falls to be dismissed. The applicant is also not entitled to the payment of any severance pay resulting from her dismissal.
     

112. 
     As to costs, it must be considered that the applicant was legally assisted in the retrenchment process from the start, by what she referred to as ‘her legal team’. The content of some of the writing emanating from the applicant clearly had a legally qualified hand in them. This being the case, I simply cannot fathom why the applicant acted as she did. Surely competent legal advice must have made it clear to the applicant that her conduct with regard to the consultation process was simply unreasonable. The applicant could easily have avoided all the litigation that followed, but chose to be obstructive.
     

113. 
     As touched on above, I also do not believe the applicant was bona fide. The respondent has been caused to spend time, effort and costs on defending a matter which should not have arisen in the first place, and which it tried its best to avoid. The applicant then pursued a case to this Court which, considering the undisputed facts, had little hope of success. It is my view that a costs order against the applicant is certainly appropriate, for these reasons given. In any event, applying the broad discretion I have with regard to the issue of costs in terms of Section 162 of the LRA, I consider it fair and appropriate that the respondent not be left completely exposed where it comes to the payment of legal fees, and should be entitled to party and party costs in opposed trial proceedings.
     

Order

114. 
     For all of the reasons as set out above, I make the following order:
     

1. 
   The applicant’s application is dismissed with costs.
   

_____________________

S Snyman

Acting Judge of the Labour Court

Appearances:

For the Applicant: Advocate S Jackson

Instructed by: Norton Rose Fulbright SA Inc

For the Respondent: Advocate A N Snider

Instructed by: William Berry Attorneys

1 (2006) 27 ILJ 292 (LAC) at para 55.

2 (2000) 21 ILJ 129 (LAC) at para 36.

3 (2010) 31 ILJ 2735 (LC) at para 22.

4 (2001) 22 ILJ 602 (SCA) at para 27.

5 (2006) 27 ILJ 269 (LAC) at para 24.

6 Id at para 26.

7 (2003) 24 ILJ 373 (LAC) at para 25.

8 (2006) 27 ILJ 2537 (LAC).

9 Id at para 39.

10 (supra) at para 17.

11 (2002) 23 ILJ 678 at 682.

12 (2007) 28 ILJ 2718 (LAC) at para 57.

13 Id at para 58.

14 (supra) at para 60.

15 (supra) at para 24.

16 (supra) at para 69.

17 (2000) 21 ILJ 1347 (LC) at para 28.

18 (supra) at para 41.

19 (2006) 27 ILJ 818 (LC) at para 39.

20 (supra) at para 18(i). See also SA Clothing and Textile Workers Union and Others v Discreto   A Division of Trump and Springbok Holdings (1998) 19 ILJ 1451 (LAC) at para 8.

21 [2006] ZALAC 7 (21 February 2006).

22 Id at para 11.

23 Id at para 18.

24 Unreported LAC case no JA 14 / 2004 dated 28 February 2006.

25 (2015) 36 ILJ 1923 (LC) at para 60. See also Schatz v Elliott International (Pty) Ltd and Another (2008) 29 ILJ 2286 (LC) at para 56.

26 (supra) at para 19.

27 (2011) 32 ILJ 1236 (LC) at par 25

28 (1999) 20 ILJ 89 (LAC).

29 (2001) 22 ILJ 666 (LAC) at para 24.

30 (2008) 29 ILJ 420 (LC) at para 68 – 69.

31 Basic Conditions of Employment Act 75 of 1997.

32 (2006) 27 ILJ 935 (LAC) at paras 44 – 45

33 (2008) 29 ILJ 1113 (LAC) at para 67.