Labour court rules that Assmang retrenchments were fair
The Labour Court had harsh words for a union which sought to challenge the retrenchment of one of its Assmang shop stewards on the grounds that his dismissal was unfair.
Mandla Phakhathi’s services were terminated - together with those of a number of other employees - on account of Assmang Machadodorp Chrome Works’ operational requirements in April 2015.
The National Union of Metalworkers of South Africa (Numsa) challenged the termination of Phakhathi’s employment.
Phakhathi started working at the company‚ which operates an opencast mine in Mpumalanga‚ in 2007. In November 2011‚ he was elected as Numsa shop steward and became full-time in the post in January 2012.
The company had about 700 workers when Phakhathi was elected full-time.
The first retrenchments due to operational requirements took place the same year‚ resulting in 404 workers losing their jobs. A second tranche of retrenchments took place in 2014‚ when 168 employees were dismissed.
In 2015‚ Assmang’s remaining furnaces were switched off‚ and it was forced to run limited operations.
There were further retrenchments in April of that year‚ leaving the company with only 60 employees. Phakhathi was among those retrenched. The company also terminated the full-time shop-steward agreement it had entered into with the unions.
Phakhathi’s union referred an unfair dismissal dispute to the bargaining council. After conciliation failed‚ the dispute was referred to the Labour Court for adjudication.
In the Labour Court‚ Assmang’s human resource superintendent‚ Dirk Hattingh‚ said Phakhathi was identified for retrenchment due to the “last in‚ first out” criteria. The employee working with Phakhathi at Assmang’s stores had more years of service than Phakhathi.
Labour Court Judge Edwin Tlhotlhalemaje said in his judgment‚ passed on Tuesday‚ that he understood Numsa’s case to be that by virtue of his position as a full-time shop steward‚ Phakhathi was immune from Assmang’s decision to retrench‚ because that position was entrenched by virtue of the provisions of the shop steward agreement.
“There is everything wrong and illogical with the applicants’ approach‚” Thlothlalemaje said.
He said when Phakhathi was appointed as a full-time shop steward‚ there were 700 employees and there was justification for that position.
He said when the number of employees dwindled to 60 in 2015‚ there was no reason why a full-time shop steward was still necessary.
The judge said the fact that an employee was a full-time shop steward did not imply that he or she enjoyed immunity from any operational requirements and exercise embarked upon by an employer.
Tlhotlhalemaje also said that‚ after the 2014 retrenchments‚ Phakhathi was no longer a full-time shop-steward as he had to work at the stores.
The judge dismissed the application and also ordered the union and Phakhathi to pay the costs of the application for bringing a frivolous application.
“The claim was a non-starter‚ and even more disconcerting is that despite Phakhathi having been dismissed together with other members‚ Numsa appears to have given him special treatment simply because he was a full-time shop steward. In the circumstances‚ the requirements of law and fairness dictate that Numsa be burdened with the costs of having to defend this matter‚” he said.