BY Brian Patterson AND Shivani Moodley
South Africa: Zoom and section 189 consultations
Since the outbreak of the Coronavirus (COVID-19), there has been much talk about what the new normal will be. The consensus is that life will never return to what it was prior to the COVID-19. So, what does this mean for consultations in terms of section 189 of the Labour Relations Act, 1995 (“LRA”)? This is the issue that the Labour Court had to grapple with in the recent Labour Court matter of Food and Allied Workers Union (“FAWU”) v South African Breweries and another.
In January 2020, South African Breweries (“SAB”) determined that it was necessary to restructure its operations, and issued a notice in terms of section 189(3) of the LRA, commencing consultations. As they had contemplated large-scale retrenchments in terms of section 189A of the LRA, a Commission for Conciliation, Mediation and Arbitration (“CCMA”) facilitator was appointed to facilitate the consultations.
As is widely known, during March 2020, the president declared a state of disaster arising from the COVID-19 pandemic. This resulted in stringent measures being imposed to limit the spread of the virus, including social distancing and ultimately the national lockdown.
In order to continue meaningful consultations notwithstanding the lockdown, the SAB proposed that consultations continue via the videoconferencing application, Zoom. FAWU adopted the position that it could not consult via Zoom and that the consultations could only resume once the national lockdown had been uplifted.
SAB continued consultations with the remaining consulting parties, notwithstanding FAWU’s objections, and FAWU did not attend these consultations.
FAWU then launched an application in terms of section 189A (13) of the LRA, seeking an order, inter alia, that in continuing consultation via Zoom, SAB had acted in a procedurally unfair manner.
Moshoana J held that the LRA does not prescribe the form in which consultations must take place. The LRA even allows for consultation to occur exclusively via correspondence. The court noted that that the COVID-19 pandemic meant that a new normal had to be adopted. The issue of contention was that consultations were normally held in the form of physical meetings and whether the absence of following that specific format rendered the consultations procedurally unfair.
The court held that in the present circumstances, applications such as Zoom must be used to ensure that health and safety of individuals are maintained. The irony that the urgent application launched by FAWU was heard by the Labour Court via Zoom was not lost on the court. The use of Zoom or similar applications for the purposes of consultations in terms of section 189 does not render the consultation process procedurally unfair.
Insofar as FAWU had refused to participate in the consultations via videoconferencing facilities, the Labour Court reiterated the principles that were articulated by the Labour Appeal Court in the matter of SAA v Bogopa and others: In circumstances where a trade union abandons the process due to no fault of the employer, the dismissal cannot be said to be procedurally unfair if the employee is subsequently dismissed without the consultation process having been completed.
The significant benefits of a CCMA facilitated process (as opposed to conciliation) was again emphasised by the court with reference to the Constitutional Court judgement of Basson AJ in Steenkamp v Edcon Limited where it was said:
“It is clear that where a facilitator is appointed the consultation process is bound to be effective and enhanced. Ideally, this Court does not expect procedural lapses and/or complaints where a facilitator is involved. The point I wish to put forward is that in a facilitated process, this Court expects less of section 189A (13) applications due regard being had to the powers of the facilitator and above all the expertise “
In light of the above, the court dismissed FAWU’s application.
What this means
This judgment reflects that our courts are taking judicial notice of a new normal that has emerged as a result of the COVID-19 pandemic.
Trade unions and other consulting parties are cautioned against refusing to make use of videoconferencing facilities in its engagements as the courts will not view such an approach favourably.
Employers are well within their rights to insist that videoconferencing facilities be used, but must be mindful that it must ensure that its consulting parties have the necessary tools to meaningfully participate in this manner.
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