CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 102/21
In the matter between:
SOLIDARITY obo MEMBERS Applicant
and
BARLOWORLD EQUIPMENT SOUTHERN AFRICA First Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Second Respondent
NATIONAL ASSOCIATION OF SOUTH AFRICAN
WORKERS Third Respondent
ASSOCIATION OF CONSTRUCTION AND
MINEWORKERS UNION Fourth Respondent
NATIONAL UNION OF METALWORKERS OF SOUTH
AFRICA Fifth Respondent
UASA – THE UNION Sixth Respondent
Neutral citation: Solidarity obo Members v Barloworld Equipment Southern Africa
and Others [2022] ZACC 15
Coram: Madlanga J, Madondo AJ, Mhlantla J, Majiedt J, Pillay AJ,
Rogers AJ, Theron J, Tlaletsi AJ and Tshiqi J
Judgments: Tshiqi J (unanimous)
Heard on: 11 November 2021
2
Decided on: 6 May 2022
Summary: Labour Relations Act — meaningful joint consensus -seeking
process — selection criteria
ORDER
On appeal from the Labour Court, Johannesburg:
1. Leave to appeal is granted.
2. The appeal on the merits is dismissed.
3. The appeal against costs is upheld and paragraph (3) of the order of the
Labour Court is substituted with the following:
“Each party is ordered to pay its own costs.”
JUDGMENT
TSHIQI J (unanimous)
Introduction
[1] This is an application for leave to appeal against the judgment of the
Labour Court that dismissed an application brought in terms of section 189A(13) of the
Labour Relations Act 1 (LRA) by the first applicant , Solidarity, against the first
respondent, Barloworld Equipment Southern Africa, a division of Barloworld S outh
Africa (Pty) Ltd (Barloworld). In the Labour Court , the National Union of
1 66 of 1995.
TSHIQI J
3
Metalworkers of South Africa (NUMSA) had brought a similar application, and the two
applications were heard together. What lies at the core of this application is whether
Solidarity was entitled to invoke the provisions of section 189A(13) of the LRA, in
challenging mass dismissals of its members by Barloworld for operational requirements
in terms of section 189A of the LRA, after the Commission for Conciliation, Mediation
and Arbitration (CCMA) consultations.
[2] The essence of the dispute in the Labour Court was whether there was a
meaningful joint consensus-seeking process as envisaged in section 189(2) of the LRA,
before the dismissals took place. Solidarity and NUMSA alleged that the consultation
process was inadequate which resulted in a fair procedure not being followed, and they
sought to invoke the provisions of section 189A(13). They sought an order setting aside
the dismissals and declaring that the parties should reconvene and continue with the
consultations with a view to partic ipating in a joint consensus -seeking process. For
various reasons that will be explored fully below, the Labour Court held that the
applications did not raise compliance issues, but rather general issues relating to
procedural fairness and, to a certain e xtent, substantive fairness and that
section 189A(13) should not have been invoked. It dismissed the applications with
costs.
Parties
[3] The applicant is Solidarity, a trade union acting on behalf of its members who
are former employees of Barloworld. NUMSA was referred to as the second applicant
in the Labour Court and is cited as the fifth respondent in this application for leave to
appeal because it has not participated as a party .2 For this reason, r eference to the
interaction between NUMSA and Bar loworld will only be made to a limited extent,
insofar as it is necessary.
2 A few days before the hearing NUMSA addressed a letter to this Court expressing its support for Solidarity’s
application for leave to appeal. The status of the letter is not clear and it in fact did not comply with the Rules of
this Court and no further reference will be made to it.
TSHIQI J
4
[4] The first respondent is Barloworld, the former employer of the dismissed
employees. The second respondent is the CCMA , the forum through which the
consultations between the parties were facilitated during the restructuring process. The
third to sixth respondents 3 are cited as trade unions that might have an interest in the
outcome of these proceedings.
Background
[5] On 27 April 2020, Barloworld sent a notice , as envisaged b y section 189(3) of
the LRA, to its employees, including Solidarity’s members, relating to the restructuring
of its operations which it alleged was as a result of the impact of Covid-19 on the entity.
On 28 April 2020, Barloworld approached the CCMA and requested it to appoint a
facilitator in terms of section 189A(13) to facilitate a joint consensus -seeking process
between the affected parties. After a facilitator was appointed, s everal letters were
exchanged between Solidarity and Barloworld and various consultation meetings were
held. Reference will only be made to those that are relevant to the main bone of
contention between the parties: whether there was a meaningful joint consensus-seeking
process and whether the Labour Court should have granted relief in t erms of the
provisions of section 189A(13).
Correspondence and meetings between the parties
[6] On 10 June 2020, and after the CCMA had appointed the facilitator as requested
by Barloworld, the latter made a presentation to the members of Solidarity 4 and the
facilitator relating to the plan that was delineated for restructuring. A further
consultation was held by the parties on 9 July 2020. On 23 July 2020, Solidarity made
formal submissions to Barloworld and rejected the restructuring plan tabled by
Barloworld. This rejection was, according to Solidarity , due to Barloworld proposing
to retrench 750 of its members as a result of a temporary situation.
3 National Association of South African Workers; Association of Construction and Mine Workers Union; National
Union of Metal Workers of South Africa; UASA-The Union, respectively.
4 The focus is on the consultation process with Solidarity. The consultation with NUMSA is covered only to the
extent necessary.
TSHIQI J
5
[7] On 28 July 2020, Barloworld addressed a letter to Solidarity. The letter referred
to the third CCMA facilitated consultation session and thanked Solidarity for the formal
submission on its alternative proposals which it had received on 24 July 2020 in line
with the outcomes of the consultation session. It stated that the contents of the
submission were noted, considered and deliberated on by Barloworld and that the letter
was a response to the alternative proposals contained therein. In item 15 of its letter,
Barloworld responded to a proposal by Sol idarity to consider employees who wanted
to take early retir ement. One of the responses to this was that where employees
volunteer to be considered for early retirement , Barloworld would evaluate the
application, taking into account whether several listed factors including “transformation
targets ( Employee Assistance Programme , Diversity and Localisation) would be
negatively impacted”.
[8] On the same day , 28 July 2020, Solidarity responded in writing and stated that
its submission was made in a further attempt to reach consensus on the section 189A
process. One of the issues canvassed extensively in the letter was the selection criteria.
Item 5 of the letter was headed : “Outstanding issues to be consulted on in terms of
section 189(3) of the LRA ”. In paragraph (A) of this heading , Solidarity list ed
“selection criteria”. It made several proposals pertaining to voluntary severance pay,
early retirement, etc. Towards the end of the letter, it said: “[w]here there are more
associates to positions or there are vacant positions, the positions will be filled applying
the Last-In, First-Out (LIFO) principle subject to skills and qualifications as the agreed
selection criteria ”. It then continued and st ated that Solidarity upfront “rejects the
proposal that such placements should be in line with [Barloworld’s] Employment
Equity Plan as [Solidarity] believe[s] the LRA specifically prohibits possible
termination based on race”.
TSHIQI J
6
[9] On 30 July 2020, Solidarity addressed a letter to Barloworld requesting certain
financial records and information .5 Solidarity further stated that dismissal s due to
operational requirements could not be effected until consultation on the issues in
section 189(3) had taken place . It further reserved its rights to declare a dispute
pertaining to the disclosure of information in terms of section 16 read with
section 184(4) of the LRA, should Barloworld fail to provide the information requested.
[10] It is clear from the minutes of the consultation meetings and the correspondence
exchanged, that, although various items were discussed during the consultation process,
the most contentious one was the selection criteria proposed by Barloworld, especially
the inclusion of transformation as part of the criteria. The parties were unable to reach
consensus on the proposed selection criteria. After the expiry of the initial 60 -day
period on 3 August 2020, the consultation process was extended. Barloworld arranged
further meetings on 7 and 11 August 2020 to discuss outstanding issues from the agreed
agenda and these were attended by Solidarity. One of the items to be discussed was the
selection criteria. Under this topic, Barloworld proposed the following as the “selection
criteria mix”: LIFO; Sk ills and Qualifications and Transformation Targets
(Employment Equity Plan (EEP) Targets, Diversity and Localisation) . It is common
cause that Barloworld had issued notices of termination of employment at the beginning
of August 2020, but despite this, further consultations continued on 7 and
11 August 2020.
[11] On 19 August 2020, Barloworld addressed a letter to Solidarity stating that
proper consultation s in g ood faith had taken place and there was no legal basis for
withdrawing its termination letters and for re -opening the consultation process. It
further stated that the CCMA concluded the facilitated consultation process in terms of
section 189A and in line with the initial facilitation period , which had expired on
3 August 2020. It also stated that, subsequently, Barloworld arranged further meetings
5 These include the reasons for the retrenchments, alternatives to dismissal that were considered and the reasons
for rejecting them, number of employees affected, proposed method of selection, severance pay, assistance offered
by the employer and the possibility of future re-employment.
TSHIQI J
7
on 7 and 11 August 2020 in good faith in an attempt to discuss outstanding issues from
the concluded facilitated consultation process. Regarding the selection criteria applied,
it stated that, “as previously indicated, a combination of selection principles [was] being
applied consistently ” and that these were LIFO, Transformation, Skills and
Qualifications. The failure to resolve the outstanding issues led to Solidarity and
NUMSA approaching the Labour Court for relief in terms of section 189A(13) of the
LRA and, on the part of Solidarity, ultimately this Court for relief.
Litigation history
Labour Court
[12] Solidarity and NUMSA approached the Labour Court in separate applications
based on alleged procedural irregularities in relation to the consultation process.
Solidarity alleged that Barloworld failed to consult on a number of issues envisaged in
section 189(2) , including one component of its selection criteria , namely
transformation. Further, it argued that the implementation and application of
transformation as a criterion was unlawful and unfair as it directly discriminates against
its members on the grounds of race and gender . Solidarity sought an order declaring
that Barloworld had acted in a procedurally unfair manner when dismissing its members
for alleged operational reasons and reinstating its members with retrospective effect ,
with full remuneration and benefits and directing Barloworld to embark on and continue
with a meaningful joint consensus -seeking process (including consultations) as
envisaged by sections 189 and 189A of the LRA but without relying on transformation
as a selection criterion.6 It also sought an order interdicting Barloworld from dismissing
any of its members prior to following fair procedures. In the alternative, Solidarity
sought compensation for the alleged procedurally unfair dismissals.
[13] For its part, NUMSA alleged that the consultation process was flawed in the
following respects: (a) Barloworld had failed to disclose information that was essential
6 Solidarity obo Members v Barloworld Equipment (a division of Barloworld SA (Pty) Ltd), unreported judgment
of the Labour Court of South Africa, Johannesburg, Case No J950/20 and J913/20 (2 October 2020)
(Labour Court judgment).
TSHIQI J
8
to ensure the effective participation of the unions in the consultation process; (b) there
had been no meaningful consultation on alternatives to retrenchment; (c) there had been
no joint consensus-seeking consultation on the selection criterion to be used ; and
(d) Barloworld had called workers to interviews without furnishing them with important
information that they needed prior to attending the interviews. 7 NUMSA sought
reinstatement and an order compelling the parties to resume consultation.
[14] The two applications were consolidated and the Labour Court dealt with them in
one judgment. The Court emphasised that, in terms of section 189A(18) of the LRA, 8
the Labour Court “is precluded from adjudicating disputes about the procedural fairness
of a dismissal based on the employer’s operational requirements ”.9 It referred to this
Court’s decision in Steenkamp II,10 and held that “the jurisdiction of the Labour Court
to adjudicate on procedural fairness of a dismissal based on the employer’s operational
requirements has been ousted”.11 The Labour Court said that there is an incorrect view
that its jurisdiction in such matters was restored, pursuant to section 189A(13) of the
LRA. The Court held that this view is plainly incorrect because section 189A(13) does
not make any reference to procedural fairness but specifically provides that if an
employer does not comply with a fair procedure, a consulting party may apply to the
Labour Court for an order compelling the employer to comply with a fair procedure. It
does not, the Court emphasised, refer to procedural fairness.12
[15] The Court distinguished between procedural fairness and compliance with a fair
procedure. It held that there is a vast difference between “seeking to find procedural
fairness and the compliance with a fair procedure”, because “in a procedural fairness
7 Id at para 6.
8 Section 189A(18) provides that “[t]he Labour Court may not adjudicate a dispute about the procedural fairness
of a dismissal based on the employer’s operational requirements in any dispute referre d to it in terms of
section 191(5)(b)(ii)”.
9 Labour Court judgment above n 6 at para 7.
10 Steenkamp v Edcon Limited [2019] ZACC 17; (2019) 40 ILJ 1731 (CC) ; 2019 (7) BCLR 826 (CC)
(Steenkamp II).
11 Labour Court judgment above n 6 at para 7.
12 Id at para 8.
TSHIQI J
9
concept the net is wider as opposed t o compliance”.13 It highlighted that prior to the
introduction of section 189A, the Labour Court could adjudicate disputes relating to
procedural fairness in respect of all retrenchment disputes and that it still has jurisdiction
to adjudicate those matters in respect of retr enchments of less than 10 employees. In
respect of mass retrenchments, however, a quicker and less complicated process is now
available and it can only be enforced through an application to compel compliance.14
That this process is provided for by way of motion proceedings is further evidence of
the fact that the Legislature did not intend for the Labour Court to adjudicate matters of
procedural fairness, which are likely to raise disputes of fact. According to the Court
the issue in such applications is a simple one: it is whether the employer complied with
its statutory obligations.15
[16] The Labour Court held that procedural fairness in a broader sense goes beyond
an employer’s statutory obligations alone. A typical example, according to the Court ,
relates to disclosure of information. It also said that, notwithstanding that disputes over
procedural fairness are excluded from the ambit of section 189A(13), the LRA does not
leave the consulting parties without a remedy or permit the employer to do w hatever it
wishes during the consultation process. Rather, it enjoins facilitator s to facilitate the
process and, where necessary, exercise their wide powers to make rulings. In addition,
employees retain their constitutional right to strike over issues arising from procedural
fairness throughout the consultation process.16
[17] The Labour Court concluded that the parties’ complaints reg arding the
consultation process did not raise compliance issues, but rather general issues relating
to procedural fairness and, to a certain extent, substantive fairness.17
13 Id at para 9.
14 Id.
15 Id at para 10.
16 Id.
17 Id at para 14.
TSHIQI J
10
[18] Specifically, in dealing with Solidarity’s complaints about the selection criteria,
the Labour Court stated that the allegation was that Barloworld did not consult over the
transformation issue, and that there was a dispute in this regard. The Court concluded
that the notice sent on 27 April 2020 to the employees relating to the restructuring
disclosed the selection criteria and that there was no dispute, on the probabilities , that
the parties engaged on the criteria. The initial proposal was to take into account the
EEP, which according to the Court includes transformation. The Court held that the
allegation that the employer did not engage on transformation was inconsistent with the
evidence presented. The Court also held that in its view transformation is not a selection
criterion per se, and that Solidarity’s complaint, properly construed, related to
substantive fairness. The issue of which selection criteria to apply is one of substance
and not procedure, so reasoned the Court. It then stated that Solidarity had a right, in
terms of section 189A(7)(b)(ii), to refer the dispute as to whether there was a fair reason
for the dismissal to the Court in terms of section 191(11) of the LRA. The Labour Court
then concluded that it would be inappropriate if it were to adjudicate a procedural
fairness dispute brought as a section 189A(13) application, as its powers were “taken
away” by section 189A(18).18 It concluded that Solida rity’s application based on
section 189A(13) had to fail. The Court emphasised that the primary remedy envisaged
by section 189A(13) is compliance, which was no longer possible since the consultation
process had concluded and the proverbial horse had bolted.19
[19] In passing , the Court found it unnecessary to determine allegations of
unlawfulness. These issues have not been raised by Solidarity in this applic ation and
will not be traversed in this judgment.
[20] The Court then dealt with the issues presented by NUMSA, which it also held
were issues of substance that fell outside the ambit of the Labour Court’s powers in
terms of section 189A(13). 20 The Court held that NUMSA ought to have dealt with
18 Id at para 13.
19 Id at para 20.
20 Id at paras 21-4.
TSHIQI J
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Barloworld’s alleged failure to provide it with certain information through the remedial
procedure provided for in section 16 read with section 189(4) of the LRA. It held that
this process was specifically designated by the LRA, and could not be bypassed by the
Court purporting to exercise jurisdiction in terms of section 189A(13).21
[21] Finally, in dealing with costs, the Labour Court held that the requirements of law
and fairness dictated that an award of costs against Solidarity and NUMSA was apposite
in the circumstances, because their applications amounted to an abuse of court
process.22
[22] Aggrieved by the Labour Court’s decision, Solidarity and NUMSA applied to
the Labour Court for leave to appeal to the Labour Appeal Court. The Labour Court
concluded that it lacked prospects of success and dismissed the application for leave to
appeal with costs.
Labour Appeal Court
[23] After finding no joy in the Labour Court, Solidarity petitioned the Labour Appeal
Court for leave to appeal to it . The Labour Appeal Court refused Solidarity’s petition
with no order as to costs.
Submissions before this Court
Submissions on jurisdiction and leave to appeal
[24] Solidarity submits that this matter engages this Court’s jurisdiction as it
concerns, inter alia, the proper interpretation of sections 189 and 189A(13) of the LRA.
These sections, so it argues, give content to dismissals for operational requirements (and
the fairness thereof), underpinned by the right to fair labour practices which is
entrenched in section 23(1) of the Constitution. It contends that the interpretation and
21 Id at para 22.
22 Id at paras 25-8.
TSHIQI J
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application of the LRA, which was enacted to give effect to the Bill of Rights, do raise
constitutional issues. Thus, so submits Solidarity, this Court’s jurisdiction is engaged.
[25] Solidarity further argues that this matter raises important issues that are not
confined to the parties involved, but relevant to the general labour force and other future
employment relationships. It submits that:
“retrenchments usually involve the loss of jobs and income by a number of employees
through no fault of their own . They have a more significant social and economic ill -
effect than any other forms of dismissals because they affect a large number of
employees”.
Therefore, in Solidarity’s argument, reaching certainty and finality on whether
dismissals constitute retrenchments that are not automatic ally unfair in terms of
section 187(1)(c) of the LRA is in the public interest and warrants a determination by
this Court. It therefore contends that the interests of justice favour the granting of leave
to appeal.
[26] Barloworld submits that this matter neither raises a constitutional issue nor does
it raise an arguable point of law of general public importance that ought to be considered
by this Court. According to Barloworld, this is evident from the fact that Solidarity’s
action and the primary relief sought is based on section 187(1)(f) of the LRA.
[27] Barloworld further contends that even if this Court is inclined to hold that its
jurisdiction is engaged, leave to appeal should be refused because the matter is moot.
This, according to Barloworld , is because where a facilitated consultation process is
underway, the Labour Court can only be approached for relief during the 60-day
consultation period. It follows , so contends Barloworld, that the application by
Solidarity, brought roughly 30 days after the notices of dismissal were issued, was
brought too late to obtain substantive relief aimed at getting the consultation process
back on track. Barloworld further argues that in any event this application has no
reasonable prospects of success.
TSHIQI J
13
Submissions on merits
[28] Solidarity submits that the distinction drawn by the Labour Court between a “fair
procedure” and “procedural fairness” is superficial. To substantiate this point,
Solidarity asserts that “there are no other precedents [apart from TAWUSA,23 a judgment
of the same Judge] to suggest that the words ‘a fair procedure’ are confined only to the
contents of section 189 of the LRA”. In Solidarity’s submission, the Labour Court drew
a distinction between compliance issues and general procedural unfairness issues,
thereby negating the requirement of consultation and a meaningful joint
consensus-seeking process and, instead, requiring only that the relevant parties
“engage” (emphasis added).
[29] Solidarity argues that it has been held that consultation must be exhaustive and
not sporadic, superficial or a sham, in order to be considered meaningful. And that the
Code of Good Practice on Dismissal based on Operational Requirements24 codifies this
where it states that the employer should in good faith keep an open mind throughout
and seriously consider proposals put forward .25 This, in Solidarity’s view, negates the
description that the Labour Court attaches to consultation as being mere engagement.
It submits that consultation is seldom deemed sufficient when it is rushed. To be
meaningful in terms of section 189(2) of the LRA, the consultation process must allow
sufficient time for disclosure, consideration and dialogue. It argues that there was no
meaningful consultation on the selection criteria in general and the criterion of
transformation in particular.
[30] Although Solidarity accepts that the parties discussed the selection criteria, it
denies that these discussions constituted adequate consultations and further denies that
23 TAWUSA obo Mothibedi v SATAWU , unreported judgment of the Labour Court, Case No J885/20
(17 September 2020).
24 Code of Good Practice on Dismissal based on Operational Requirements, GN 1517, GG 20254, 16 July 1999.
25 Id at clause 3.
TSHIQI J
14
an agreement was reached about the selection criteria, which included the criterion of
transformation that was eventually used. Solidarity takes issue with the Labour Court’s
finding that “transformation is not a selection criterion and that Solidarity’s complaint
relates to substantive fairness”.
[31] Barloworld argues that Solidarity does not deny that it was consulted on the
selection criteria used to select employees for dismissal. It submits that whe ther the
selection criteria were fair, or were fairly applied, is a matter for determination at trial
on the substantive fairness of the dismissals.
[32] Barloworld submits that the Labour Court was correct in drawing a distinction
between the questions whether, all t hings considered and on the application of a value
judgment, the dismissal was procedurally fair; and, on the other hand, whether the
employer had complied with its statutory obligation to engage in a fair consultation
procedure. Barloworld submits that the Labour Court correctly held that, in proceedings
under section 189A(13), the only relevant question was the second one.
[33] Barloworld contends that Solidarity’s argument that the enquiry into procedural
fairness is far broader ignores the express limitati on of the Labour Court’s jurisdiction
to adjudicate procedural fairness issues in mass retrenchments, as explicitly set out in
section 189A(18) of the LRA. The jurisdiction of the Labour Court in terms of section
189A(13) is limited to a judicial supervisory and oversight role, which enables the Court
to intervene in exceptional circumstances where there has been a gross failure in the
consultation process.
Analysis
Jurisdiction and leave to appeal
[34] This matter concerns the interpretation of the LRA and the crisp question before
the Court relates to the interpretation of sections 189 and 189A of the LRA. This Court,
TSHIQI J
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in NEHAWU,26 held that the interpretation of the LRA, a statute that gives effect to the
constitutional right to fair labour practices, is a constitutional issue. This principle was
later confirmed in Steenkamp I.27 There the Court also held that the ambit of the
employment rights flowing from section 189A is an arguable point of law of general
public importance, which this Court ought to hear. 28 As this matter relates to
interpretative issues flowing from section 189A, and as the issues raised will
undoubtedly impact the labour rights of many South Africans, not just t he litigants
before the Court, this Court’s general jurisdiction is also engaged.
[35] However, jurisdiction is not the only consideration. The next question is whether
leave to appeal should be granted. Because in Steenkamp I and II this Court has already
interpreted the provisions of section 189A(13), this would ordinarily have been a ground
to refuse leave to appeal . However, this matter raises material errors made by the
Labour Court, which, if not corrected and clarified, may cause confusion in labour law
jurisprudence. For instance, the Labour C ourt sought to make a general distinction
between procedural fairness and compliance with a fair procedure. The manner in
which the distinction is formulated may, if not clarified, lead to confusion and to a
deviation from the jurisprudence of that Court, the Labour Appeal Court and this Court,
concerning what falls under the umbrella of procedural unfairne ss in terms of the
provisions of the LRA.
[36] Secondly, the Labour Court laboured under the impression that once the
consultation process has been finalise d, there can be no reliance on section 189A(13).
As will be illustrated below, t his view is contrary to the jurisprudence of this Court in
Steenkamp I. Another issue that needs to be clarified pertains to what constitutes
meaningful joint consensus-seeking consultations. Although this concept is not novel,
it is worth clarifying that this requirement pertains to the quality rather than the quantity
26 National Education Health and Allied Workers Union v University of Cape Town [2002] ZACC 27; 2003 (3)
SA 1 (CC); 2003 (2) BCLR 154 (CC) (NEHAWU) at paras 13-4.
27 Steenkamp v Edcon Ltd [2016] ZACC 1; 2016 (3) SA 251 (CC); 2016 (3) BCLR 311 (CC) (Steenkamp I).
28 Id at para 25.
TSHIQI J
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or duration of the joint consensus -seeking sessions. And further, to re-state in what
circumstances i t can be said that there was a meaningful joint consensus -seeking
process in compliance with the provisions of section 189(2 ) of the LRA . Leave to
appeal is thus granted.
Merits
Issues for determination
[37] The submissions on the merits raise a number of issues. However, as stated
earlier, the essence of the dispute is whether the Labour Court was correct in holding
that Solidarity’s application should not have been brought in terms of section 189A(13).
To resolve this issue, I first have to determine whether there was meaningful
consultation between the parties as required in terms of section 189(2) of the LRA. The
next issue to determine is whether the Labour Court was correct in refusing to grant an
order in terms of section 189A(13). If the Labour Court erred, then this Court will have
to determine appropriate relief in order to remedy the defect in the consultation process.
This may include remitting the matter to the Labour Court or ordering the parties to
re-open the consultation p rocess or award ing compensation. Finally, it has to be
determined whether this Court should interfere with the Labour Court’s costs order
against Solidarity.
[38] I will firstly look at the law relating to dismissals based on operational
requirements, as envi saged in section 189 . I will then consider , the jurisprudence
relating to what the LRA envisages when it requires that there must be meaningful
consultation between the parties before dismissals for operational requirements take
place. This will lead me to a conclusion on whether there was proper consultation. The
next enquiry will then be the jurisprudence relating to when section 189A(13) may be
invoked. The question that will arise after this is whether section 189A(13) should have
been invoked. Finally, I will deal with the costs order made by the Labour Court.
TSHIQI J
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Law relating to dismissals based on operational requirements
[39] Section 189(1) of the LRA requires an employer contemplating dismissals based
on operational requirements to consult any person, including trade unions whose
members may be affected by the proposed retrenchments , prior to implementing the
dismissals. Section 189(2) of the LRA requires the employer and other consulting
parties to “engage in a meaningful joint consensus-seeking process and attempt to reach
consensus” on the issues listed in section 189(2)(a) to (c). These issues include :
appropriate measures to avoid dismissals, to change the timing of dismissals, to mitigate
the adverse effects of the dismissals and the method for selecting employees to be
dismissed. Section 189(3) states that the employer must issue a written notice inviting
the other consulting party to consult with it and disclose in writing all relevant
information pertaining to the proposed dismissals.
[40] Section 189(4)(a) refers to disclosure of information stipulated in subsection 3
and provides that the provisions of section 16, read with the changes required by the
context, apply to the disclosure of in formation in terms of this subsection.
Section 189(4)(b) deals with the onus in the event that there is a dispute on whether the
information that the employer has refused to disclose is relevant to the proceedings .
Section 189(5) requires that the employer should allow the other consulting party an
opportunity, during consultation , to make representations about any matter dealt with
in subsections (2), (3), and (4) as well as any other matter relating to the proposed
dismissals. In terms of section 189(6)(a), the employer must consider and respond to
the representations made by the other consulting party and, if the employer does not
agree with them, the employer must state the reasons for disagreeing. In terms of
section 189(6)(b) it is required that if representations are made in writing the employer
must respond in writing. Section 189(7)(a) and (b) provide s that the employer must
select the employees to be dismissed according to selection criteria that have been
agreed to by the consulting part ies or, if there has been no agreement, criteria that are
fair and objective.
TSHIQI J
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[41] Section 189 A regulates dismissals for operational requirements by employers
with more than 50 employees .29 Barloworld was such an employer. Section 189A(2)
requires that an employer must give notice of termination of employment in accordance
with the provisions of the section, that an employee may participate in a strike and an
employer in a lock out, and that the consulting parties may agree to vary the time periods
for facilit ation or consultation . Such variation of time periods may not be refused
unreasonably by either of the consulting parties if it is required to ensure meaningful
consultation. The CCMA is , in terms of section 189A(3), required to appoint a
facilitator to assist the parties engaged in consultations if requested to do so by either
the employer or consulting parties representing the majority of employees whom the
employer contemplates dismissing. If a facilitator is appo inted and 60 days have
elapsed from the date on which the notice was given in terms of section 189(3), the
employer may give notice to terminate the contracts of employment in accordance with
section 37(1) of the Basic Conditions of Employment Act.30 In that event, the registered
trade union or the employees may either give notice of a strike in terms of
sections 64(1)(b) or (d) of the LRA; or refer a dispute concerning whether there is a fair
reason for the dismissal to the Labour Court in terms of section 191(11) of the LRA.
[42] Section 189A(13), which is at the centre of this dispute, deals with the powers of
the Labour Court if an employer fails to comply with a fair procedure during
consultations. Section 189A(14) and (15) provides that the Labour Court may make an
appropriate order referred to in section 158(1)(a) and that an award of compensation
made to an employee in terms of subsectio n (14) must comply with section 194.
Section 189A(16) provides that the Labour Court may not make an order in respect of
any matter concerning the disclosure of information in terms of section 189(4) that has
been the subject of an arbitration award in terms of section 16. Section 189A(18)
provides that the Labour Court may not adjudicate a dispute about procedural fair ness
29 Reference will only be made to the relevant parts of this provision.
30 75 of 1997.
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of a dismissal based on the employer’s operational requirements in any dispute referred
to in terms of section 191(5)(b)(ii).
What section 189 requires of the parties engaged in a consultation process
[43] The concept of a meaningful joint consensus -seeking process that is envisaged
in section 189(2) is not defined in the LRA. In Atlantis Diesel Engines ,31 the
Appellate Division had the following to say about it:
“[This] approach requires consultation once the possible need for retrenchment is
identified and before a final decision to retrench is reached. It proceeds on the premise
that consultation requires more than merely affording an employee an opportunity to
comment or express an opinion on a decision already made. It envisages a final
decision being taken by management only after there has been consultation in good
faith.
. . . .
However, an employer cannot be expected to disclose information which, (a) is not
available to it, (b) is not relevant to the issues under discussion, and (c) could harm the
employer’s business interests for reasons other than its relevance to the consultation
process, e.g. trade secrets and other confidential information.”32
[44] Sufficient in formation must be disclosed to make the process of consultation
meaningful. This includes information concerning the need for retrenchment, as well
as information that will assist the employees or trade union, as the case may be, in
making contributions about ways of avoiding retrenchment.33
31 Atlantis Diesel Engines (Pty) Ltd v National Union of Metalworkers of South Africa [1994] ZASCA 183; 1995
(3) SA 22 (AD).
32 Id at 28E-F and 29J-30A.
33 Id at 28G-29B.
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[45] The above sentiments have recently been echoed by the Labour Appeal Court in
SACCAWU,34 where the Court held that the requirements of a meaningful joint
consensus-seeking process were satisfied as the employer showed wi llingness to
respond to requests for further information, the employer had considered the proposals
received from the parties and provided reasons for the rejection thereof and the parties
partook in a lengthy engagement process spanning over three months. In Minister of
Trade35 the Labour Court held that the purpose of consultation should be considered as
a process which entrenches the values of social partnership and joint problem-solving
aimed at affording all parties a proper opportunity to make contri butions towards a
consensus-seeking process.
[46] What may be gleaned from the authorities is that for a consultation process to be
meaningful, in the context of section 189, the employer must keep an open mind,
disclose sufficient information to enable consul ting parties to make informed
representations, and seriously consider the representations. This entails that the
employer is under an obligation to furnish reasons for rejecting representations after it
has considered them carefully. Approaching the cons ultation with a pre -determined
outcome and failure to provide reasons for rejecting representations will render the
consultation process not meaningful.36
[47] Did the parties then engage in a meaningful joint consensus -seeking process in
this matter? It is not in dispute that on 27 April 2020 Barloworld sent out a notice in
terms of section 189A concerning its contemplated restructuring. The notice complied
in all material respects with the requirements of section 189(3) and there is no
suggestion to t he contrary. Solidarity concedes that there were several CCMA
facilitated consultation sessions, ending in August 2020, but argues that the consultation
process was inadequate regarding transformation as part of the selection criteria. What
34 South African Commercial Catering and Allied Workers Union v JDG Trading (Proprietary) Ltd [2018]
ZALAC 38; (2019) 40 ILJ 140 (LAC) (SACCAWU) at para 28.
35 National Education Health and Allied Workers Union v Minister of Trade, Industry and Competition (2021) 42
ILJ 1992 (LC) (Minister of Trade) at para 21.
36 National Union of Metalworkers of SA v Dorbyl Ltd (2007) 28 ILJ 1585 (LAC).
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cannot be gai nsaid, however, is that transformation is a component of Barloworld’s
EEP, that it was tabled upfront during the consultation process, and that in subsequent
meetings Barloworld made it clear that the EEP would have to be complied with. That
this is so, is evident from the correspondence exchanged between the parties during the
consultation process and from the agenda of the meeting between the consulting parties
dated 7 August 2020. It is also clear that after the initial 60 -day period expired on
3 August 2020, the consultation process was extended to enable the parties to consult
further on outstanding issues. We know that one of the issues to be considered further
was transformation as a selection criterion. It is unlikely that this would have been part
of the agenda if there was no desire on the part of Barloworld to reach consensus on this
issue.
[48] It is also not in dispute that Solidarity was afforded an opportunity during the
consultation process to make repres entations about several matters, including making
its views known on several occasions on transformation as part of the criteria proposed.
In addition, i t is also not in dispute that in subsequent meetings, up to the end of the
consultation process, when Solidarity made its proposals, it rejected the use of
transformation as part of the selection criteria. Towards the end of the consultation
process and in its letter dated 28 July 2020, Solidarity stated its stance on the topic
categorically and said: “Solidarity upfront rejects the proposal that such placements
should be in line with Barloworld’s Employment Equity Plan as we believe the LRA
specifically prohibits possible termination based on race”.
[49] The purpose of consultations is to seek consensus and t here is no requirement
that the parties should reach agreement. The contents of a letter from Solidarity dated
2 September 2020 shows that Solidarity expected that there should have been an
agreement between the consulting parties on the selection criteria. The letter states:
“3.4 What is also of concern is the fact that the selection criteria was not agreed
upon and appears to have been unilaterally implemented. Our client clearly
indicated that LIFO and skills and qualifications may be acceptable as fair and
objective criteria. You, however, proceeded to unilaterally implement
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so-called ‘transformation’ as a selection crit erion. This renders the whole
process unfair;
3.5 Furthermore, the employer unilaterally imposed a weighted score to the three
separate criteria which was neither negotiated, nor agreed to;
3.6 The scoring attached to the three weighted criteria was, an d is unilaterally
imposed and implemented, and was never properly consulted on . . .;
3.7 Even if it is found that the inclusion of transformation is fair and objective
(which our client denies) then the application of the selection criterion, in the
fashion that you are currently implementing and applying same, is utterly
unfair, discriminatory and simply unacceptable.”
[50] That there was this expectation is also evident from Solidarity’s replying
affidavit in the Labour Court, where it complained that no agreement was reached
between the applicant, the respondent, the non -unionised employees and the unionised
employees pertaining to selection criteria. The affidavit reiterated that “there was no
consensus reached between the parties as to selection criteria”.
[51] It is curious , but of some importance to note that presently there is a parallel
process in the Labour Court where Solidarity is invoking section 191 of the LRA to
challenge, amongst others, the use or adoption of transformation as a selection criterion.
In the statement of claim in those parallel proceedings, Solidarity states that “the matter
deals with the automatic unfair dismissal of the second to fifth claimants due to the
mala fide actions of the respondent, in terms of using transformation /race and gender
as selection criteria for dismissing the second to fifth claimants” . The complaint there
is aimed at the fact that transformation was used as a selection criterion. In its statement
of claim in the section 191 process, Solidarity refers to the agenda of the further
meetings scheduled for 7 and 11 August 2020 and states that “what is evident from the
agenda . . . is that transformation is mentioned. However, nowhere i s it indicated why
transformation would be adopted and how it would be applied. This was not agreed to
at the consultations”. Solidarity further avers that during the consultation process, the
claimants agreed, in principle, to two of the pillars , namely: LIFO and the skills and
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qualification. But they did not agree to the manner in which the criteria would be
assessed and applied. (Emphasis added.)
[52] The relevance of the pleadings in the parallel section 191 proceedings is that
when one examines Solidari ty’s pleaded case before the Labour Court in this matter,
what emerges is that Solidarity is also primarily unhappy about the fact that there was
no agreement between the parties about the selection criteria and, more specifically, the
adoption of transformation as a component of the criteria.
[53] In light of the above, it is clear that Solidarity’s complaint relates to the inclusion
of transformation in the selection criteria and the fact that there was no agreement on
its inclusion. The failure to reach con sensus or agree ment does not necessarily mean
that the consultation process was not meaningful. The references to the correspondence,
the pleadings and the agenda show that Barloworld genuinely and meaningfully
considered the representations made by Solidarity. Even after the process almost
collapsed as a result of the behaviour of another trade union, the National Association
of South African Workers (NASA), and although the initial time period for consultation
had expired, we know that the consultation period was extended . We also know that
the consultations continued, even after Barloworld had issued notices of termination in
terms of section 189A(7) of the LRA read with section 37(1) of the Basic Conditions of
Employment Act. The selection criteria, including transformation, were squarely raised
for discussion during the consultations but Solidarity was adamant that it rejected
transformation as part of the selection criteria. This is still the stance in the pleadings
as Solidarity states that the inclusion of transformation was discriminatory and unfair.
[54] I am mindful of the fact that although this was and still is the stance adopted by
Solidarity, it also seeks to challenge the procedural fairness of the consultation process
on the apparent implementation of the contents of an undated annexure that Solidarity
argues was introduced at the tail end of the consultation. The impact of transformation
on the different r acial groupings at Barloworld seems to have been contained in the
annexure to that document . It is unc lear whether the contents of this annexure were
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discussed during the consultations and counsel for Barloworld could also not provide
clarity on this aspe ct. I will deal with the debate on whether Solidarity should have
been successful in invoking section 189A(13). When dealing with that debate, I will
also deal with the relevance of this annexure and whether the alleged failure to consult
on its contents compromised the consultation process , such that section 189A(13)
should have been invoked.
The correct interpretation and application of section 189A(13)
[55] In order to deal with this topic, it will be helpful to : (a) first clarify the correct
interpretation of and approach to section 189A(13) and deal with the circumstances in
which it may be invoked; and (b) consider the circumstances in which it is appropriate
for parties to approach the Labour Court in terms of section 191(5)(b)(ii) and the powers
that the Labour Court has pursuant to that provision . This will resolve the question
whether Solidarity was entitled to invoke section 189A(13) of th e LRA to address its
grievances. The next enquiry will be whether the Labour Court was correct in holding
that, generally, there is a distinction between disputes about procedural fairness and
those relating to compliance with procedure . I will also determine the effect of
section 189A(18) on the jurisdiction of the Labour Court.
[56] Section 189A(13) of the LRA provides:
“If an employer does not comply with a fair procedure, a consulting party may approach
the Labour Court by way of an application for an order—
(a) compelling the employer to comply with a fair procedure;
(b) interdicting or restraining t he employer from dismissing an employee prior to
complying with a fair procedure;
(c) directing the employer to reinstate an employee until it has complied with a fair
procedure;
(d) make an award of compensation, if an order in terms of paragraphs (a) t o (c) is not
appropriate.”
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[57] In NUM,37 the Labour Court described section 189A(13) as follows:
“Section 189A(13) was introduced in 2002 and was intended, broadly speaking, to
provide for the adjudication of disputes about procedural fairness in retrenchmen ts at
an earlier stage in the ordinary dispute resolution process, and by providing for their
determination, inevitably as a matter of urgency, on application rather than by way of
referral. The section empowers employees and their representatives to appr oach the
court to require an employer to apply fair procedure, assuming, of course, that the
jurisdictional requirements set out in section 189A are met. The section affords the
court a broad range of powers, most of which appear to suggest that where a complaint
about procedure is made by a consulting party, the court has a broad discretion to make
orders and issue directives, thereby extending to the court an element of what might be
termed a degree of judicial management into a contested consultation process.”38
[58] In Steenkamp I this Court also considered the provisions of section 189A(13).
There an employer, Edcon, had issued termination notices prior to the expiration of the
30-day period prescribed by section 189A(8). Aggrieved by this, the applicants referred
51 disputes, involving 1 331 employees, to the Labour Court challenging the validity of
the dismissals. It was alleged that Edcon had acted in contravention of
sections 189A(2)(a) and (8) and that the failure to comply with those pr ovisions
rendered the dismissals invalid. In its analysis, this Court highlighted that sections 189
and 189A provide for procedures and processes that must be complied with before any
dismissal for operational requirements can be effected, and that they seek to give effect
to the requirement in section 188(1)(a)(ii) that a dismissal must be effected in
accordance with a fair procedure.39
[59] This Court emphasised that the sole underlying purpose of section 189A(13) is
to provide a convenient and expedient mec hanism to ensure that a fair procedure is
followed during retrenchment consultations. This Court held further that the
37 National Union of Mineworkers v Anglo American Platinum Ltd (2014) 35 ILJ 1024 (LC) (NUM).
38 Id at para 19.
39 Steenkamp I above n 27 at paras 123 and 131.
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Legislature has gone out of its way to give special protection for the rights of employees
and to protect the integrity of the procedura l requirements of dismissals governed by
section 189A.40 It also held that in cases of dismissals , other than those envisaged in
section 189A(13), such as those concerning alleged infringement of the right not to be
unfairly dismissed, the protection for employees is sourced elsewhere in section 191 of
the LRA.
[60] Bearing in mind the purpose of invoking the provisions of section 189A(13), it
is apposite to consider whether the failure , in the present instance, to present the
selection criteria matrix as contained in the undated annexure leads to a conclusion that
the consultation process was procedurally unfair. In its founding affidavit , Solidarity
states that its perception was that Barloworld’s desired outcome in implementing
transformation was to rid it of certain racial groups, especially whites. It seems that this
is one of the reasons why Solidarity made it clear that it rejected transformation as part
of the selection criteria . What cannot be gainsaid is that transformation, generally, as
part of the selection criteria was part of the ongoing discussions between the parties
during the consultation process. Solidarity persistently rejected it as part of the selection
criteria until the period of the CCMA -facilitated consultations expired. As stated, this
is still its stance in the pleadings as Solidarity states that the inclusion of transformation
was discriminatory. The relief Solidarity sought in the Labour Court was that
consultation be resumed on the basis that transformation be excluded altogether as a
selection criterion. Curiously, Solidarity has not submitted that the failure to present
the selection criteria matrix depri ved it of the opportunity of considering this aspect
further. This is unsurprising because its stance throughout was that this aspect was non-
negotiable. The parties had therefore clearly deadlocked on this issue and the next route
for Solidarity was to approach the Labour Court in order for it to adjudicate on the
substantive fairness of relying on transformation as part of the selection criteria.
40 Id at para 163.
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[61] Furthermore, Solidarity did not specifically allege in its founding affidavit that
it did not have sight of the weightings in the selection criteria matrix during the
consultations. Barloworld therefore cannot be faulted for not specifically addressing
this issue, nor could its version that there wa s meaningful consultation be rejected on
the papers. The issue was raised in Solidarity’s heads of argument in this Court where
it submits that:
“[T]he selection criteria proposed at the onset of consultations morphed into something
totally different during the last session of 7 August 2020, by the implementation of a
construct of ‘ weighted scores/selection criteria’ and then with the inclusion of
‘transformation’, versus the initial proposal as contained in the section 189(3) notice
of Barloworld’s ‘employment equity plan’”.
This submission by Solidarity complains about the implementation of the weighted
score. It also complains about the inclusion of transformation as part of the selection
criteria. I have already shown that the inclusion of transform ation as part of the
selection criteria was disclosed upfront and was part of ongoing consultation. The other
complaint seems to suggest that the inclusion of transformation as part of the selection
criteria should be differentiated or contrasted with the initial proposal as contained in
the section 189(3) notice of Barloworld’s EEP. As already stated, transformation is part
of employment equity in the workplace. The Labour Court was therefore entitled to
accept Barloworld’s version that there had been m eaningful consulta tion on the
selection criteria.
Is there a distinction between disputes about procedural fairness and those
relating to compliance with procedure?
[62] In Steenkamp I the Court also considered t he consequences of dismissals that
occurred due to non-compliance with the provisions of section 189A. It held:
“If non-compliance with section 189A results in dismissals being procedurally unfair,
the ordinary unfair dismissal provisions of the LRA as well as the special remedies that
section 189A provides may be invoked. If the employer’s operational requirements for
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28
dismissals are inadequate, this can be challenged as rendering the dismissal
substantively unfair with the advantage of immediate access to the Labour Court or the
right to strike provided for in section 189A may be invoked.
If the procedural requirements of section 189 or 189A are not complied with in
circumstances where there is no acceptable reason for non -compliance, the result will
be that the dismissal was not effected in accordance with a fair procedure as
contemplated in section 188(1)(a)(ii). It is, therefore, procedurally unfair”.41
[63] The Court explained that the ord ers the Labour Court may make under
section 189A(13) are very extensive. These include an order for re-instatement which
could be with retrospective effect to the date of dismissal. 42 The Court elaborated on
the process or procedure that an employer must follow when contemplating the
dismissal of an employee for operational requirements. It highlighted that section 189A
creates rights and obligations for a certain category of employers and their employees
in regard to dismissals for operational requirements which did not form part of the LRA
before 2002. It is worth noting that it also makes provision for the referral to the Labour
Court for adjudication of a dispute about whether there is a fair reason for dismissal. It
said that in section 189A(13), the LRA specifies special remedies for non -compliance
with a fair procedure and that in section 191 it sets out the dispute procedure that must
be used to resolve disputes concerning alleged infringement of the right not to be
unfairly dismissed.43 In considering the remedies available to a dismissed employee ,
the Court stated:
“If an employer has not issued notices of dismissal but has failed or is failing to comply
with a fair procedure in the pre-dismissal process, a consulting party may make use of
the remedy in subsection (13)(a). In such a case the consulting party would apply to
the Labour Court for an order compelling the employer to comply with a fair procedure.
If an employer gives employees notices of dismissal without complying with a fair
procedure, or, if an employer dismisses employees without complying with a fair
41 Id at paras 124-5.
42 Id at para 128.
43 Id at para 131.
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procedure, the consulting party may apply to the Labour Court for an order interdicting
the dismissal of employees in terms of subsection (13)(b) until there is compliance with
a fair procedure. This would include giving premature notices of dismissal.
If an employer has already d ismissed employees without complying with a fair
procedure, the consulting party may apply to the Labour Court in terms of
subsection (13)(c) for an order reinstating the employees until the employer has
complied with a fair procedure. The significance of the remedy of reinstatement in
subsection (13)(c) is that it is made available even for a dismissal that is unfair only
because of non -compliance with a fair procedure. That is significant because it is a
departure from the normal provision that reinstatement may not be granted in a case
where the only basis for the finding that the dismissal is unfair is the employer’s failure
to comply with a fair procedure. In such a case the norm is that the Labour Court or an
arbitrator may award the employee only compensation.”44
[64] This Court accordingly made it clear that “fair procedure”, as contemplated in
section 189A, refers to the procedure that has been set out in sections 189 and 189A,
which give s effect to section 188.45 The Court also dealt with the provisions of
section 189A(18) and said that it precludes the Labour Court from adjudicating any
dispute about procedural fairness of a dismissal for operational requirements referred to
it in terms of section 191(5)(b)(ii). The Court explained the position as follows:
“In terms of [section 189A(8)(b)(ii)(bb)] only a dispute concerning whether there is a
fair reason for dismissal may be referred to the Labour Court for adjudication. In fact
subsection (18) precludes the Labour Court from adjudicating any dispute about the
procedural fairness of a dismissal for operational requirements referred to it in terms of
section 191(5)(b)(ii). It reads:
44 Id paras 160-1.
45 Section 188(1) of the LRA provides, in part:
“A dismissal that is not automatically unfair, is unfair if the employer fails to prove —
(a) that the reason for dismissal is a fair reason—
(i) related to the employee’s conduct or capacity; or
(ii) based on the employer’s operational requirements; and
(b) that the dismissal was effected in accordance with a fair procedure.”
TSHIQI J
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‘The Labour Court may not adjudicate a dispute about the procedural
fairness of a dismissal based on the employer's operational
requirements in any dispute referred to it in terms of section
191(5)(b)(ii).’
Subsection (18) may seem very drastic and harsh on employees who may be having a
dispute with their employer concerning the procedural fairness of their dismissal.
However, it will be seen that, when read with subsection (13), it is not harsh at all.
Subsection (13) provides extensive protections to employees where the employer has
failed to comply with a fair procedure.”46
[65] It is thus clear that the Labour Court may not adjudicate a dispute about the
procedural fairness of a dismissal based on the employer's operational requirements in
any dispute referred to it in terms of section 191( 5)(b)(ii). As this Court reasoned, in
Steenkamp I, section 189A(13) provides adequate protection for employees where there
has been a failure to comply with a fair procedure. Moreover, in Steenkamp II, this
Court confirmed the features of section 189A(13) and said:
“A distinctive feature of section 189A(13) of the LRA is the separation of disputes
about procedural fairness from disputes about substantive fairness. Disputes about
substantive fairness may be dealt with by resorting to strike action or b y referring a
dispute about the substantive fairness of the dismissals to the Labour Court in terms of
section 191(11) of the LRA.
Disputes about procedural fairness have been removed from the adjudicative reach of
the Labour Court and may no longer be ref erred to the Labour Court as a distinctive
claim or cause of action that a dismissal on the basis of operational requirements was
procedurally unfair.”47
[66] The Court elaborated further:
“Where procedural irregularities arise, the process provided for in section 189A(13) of
the LRA allows for the urgent intervention of the Labour Court to correct any such
46 Steenkamp I above n 27 at para 158.
47 Steenkamp II above n 10 at paras 47-8.
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31
irregularities as and when they arise so that the integrity of the consultation process can
be restored and the consultation process can be forced back on track. The purpose of
section 189A(13) has been recognised in a long line of cases. In Insurance & Banking
Staff Association the Labour Court explained:
‘The overriding consideration under section 189A is to correct and
prevent procedurally unfair retrenchments as soon as procedural flaws
are detected, so that job losses can be avoided. Correcting a
procedurally flawed mass retrenchment long after the process has been
completed is often economically prohibitive and practically
impossible. All too often the changes in an enterprise with the passage
of time deter reinstate ment as a remedy. So, the key elements of
section 189A are: early expedited, effective intervention and job
retention in mass dismissals.’
Similarly in SA Five Engineering the Labour Court held that—
‘Suffice it now to say that the intention of section 189A(13), read with
section 189A(18), is to exclude procedural issues from the
determination of fairness where the employees have opted for
adjudication rather than industrial action, providing instead for a
mechanism to pre -empt procedural problems before the substantive
issues become ripe for adjudication or industrial action.’”48
[67] The above excerpts read with section 189A(18) remove disputes about
procedural fairness, as a distinctive claim or cause of action , that a dismissal on the
basis of operational requirements was procedurally unfair , from the adjudicative reach
of the Labour Court.
[68] It follows from this jurisprudence that, in order for the Labour Court to
adjudicate a claim of the unfairness of a proced ure in dismissals for operational
requirements, the Court must be approached in terms of section 189A(13) on the basis
of non-compliance with the procedures prescribed by sections 189 or 189A of the LRA.
Steenkamp II further holds:
48 Id at paras 52-3.
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“In exercising its powers in terms of section 189A(13) of the L RA, the Labour Court
thus acts ‘ as the guardian of the process’ and exercises a ‘degree of judicial’
management or oversight over the process. The aim is to proactively foster the
consultation process by allowing p arties to seek the intervention of the Labour Court
on an expedited basis to ensure that procedural irregularities do not undermine or derail
the consultation process before it ends.”49
[69] This approach to section 189A(13) has been followed by the Labour Cour t in
numerous matters, including AMCU50 where the Labour Court was approached in terms
of section 189A(13). In that matter, i t was common cause that the respondent did not
enter into a consultation process with AMCU or the employees as required by
section 189 of the LRA. The Labour Court accordingly confirmed that the purpose of
section 189A(13) is to “compel an employer in large scale retrenchments to follow a
fair procedure if it has not done so”. 51 The Court held that th e employer had failed to
comply with a fair procedure in that it did not find it necessary to consult, as prescribed
by section 189. Ultimately the Court ordered that:
“The employers have not consulted in terms of sections 189 and 189A of the LRA.
They must be compelled to do so. The employees must be reinstated until the
employers have complied with a fair proced ure, as contemplated by
section 189A(13)(c).”52
[70] When the matter was taken o n appeal to the Labour Appeal Court, that Court
upheld the decision of the Labour Court:
“The Labour Court correctly stated that, after Exxaro terminated its contracts with the
appellants, there may exist ‘justifiable and fair reason for dismissing the employees for
operational requirements’ but that that issue would only be capable of being ascertained
49 Id at para 54.
50 Association of Mineworkers and Construction Union v Piet Wes Civils CC (2017) 38 ILJ 1128 (LC) (AMCU).
51 Id at para 21.
52 Id at para 30.
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33
through a proper consultation process as contemplated in s ection 189 and
section 189A. I agree. It follows for these reasons, that the Labour Correct was correct
in granting the relief sought by the respondents in terms of s ection 189A(13) and i n
reinstating the respondent employees to enable the appellants to follow a fair
pre-dismissal procedure in accordance with section 189A.”53 (Emphasis added.)
[71] The following emanates from the above discussion. Firstly, the power of the
Labour Court to adj udicate the procedural fairness of retrenchment consultations is
limited to the “fair procedure” that is prescribed in se ctions 189 and 189A, which give
effect to section 18 8. Secondly, it is evident that a party seeking the Labour Court’s
intervention wh en an employer fails to follow a fair procedure during retrenchment
consultations must approach the Court for relief in terms of section 189A(13). This is
because the Labour Court is barred from determining the procedural fairness of a
dismissal based on operational requirements when it is approached in terms of
section 191(5)(b)(ii). Thirdly, it is evident that these provisions are in place to serve
the interests of expediency and efficiency, and to ensure that the procedural
requirements of the LRA are followed when parties engage in consultation in
anticipation of a large-scale retrenchment, and that any defects in the procedures can be
cured before jobs are lost. This policy choice was adopted to avoid the courts having
to adjudicate alleged procedura l unfairness in the aftermath of mass retrenchments. It
was self-evidently a sensible legislative decision, for it reduces the likelihood of parties
being exposed to the inconveniences and complications that could arise from a court
ordering them to unscramble the proverbial scrambled egg. Of course section 189A(13)
does envisage, and apply to a situation where a dismissal has already taken place.
Paragraph (c) of this section empowers the Court to direct “the employer to reinstate an
employee until it h as complied with a fair procedure”. Because the section 189A(13)
process is meant to take place immediately and to be finalised expeditiously, the
53 Piet Wes Civils CC v Association of Minework ers and Construction Union [2018] ZALAC 18; (2019) 40 ILJ
130 (LAC) at para 28. See also Retail & Associated Workers Union of SA v Schuurman Metal Pressing (Pty) Ltd
(2004) 25 ILJ 2376 (LC) at para 32.
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paragraph (c) power does not detract from the metaphor of the scrambled egg, because
the scrambling will not be complete.54
[72] In light of these principles and the jurisprudence canvassed above, it is clear that,
other than TAWUSA,55 there is no authority in support of the Labour Court’s finding
that there is a distinction between “ compliance with a fair procedure” and “procedural
fairness”. While there is no clear example in law where non -compliance with the
statutory provisions of section 189 and 189A would not also translate to procedural
unfairness, one cannot rule out that possibility, but there was no basis he re for making
that distinction. Until that scenario is presented, it may be safely concluded that the
Labour Court’s jurisdiction to adjudicate procedural fairness is only ousted in respect
of unfair dismissal proceedings brought in terms of section 191(5 )(b)(ii). It is
uncontroversial and has been settled by this Court that if an employer fails to follow the
procedures prescribed by section 189 and 189A of the LRA, a party is entitled to
approach the Labour Court in terms of section 189A(13) and the Court, in turn, is
entitled to grant any of the remedies contained in that provision.
Non-disclosure of information
[73] Regarding the complaint about non -disclosure of information, it is important to
note that th is issue was raised by NUMSA , which is not a party to this appeal. The
complaint was that the consultation was flawed because Barloworld refused to disclose
information (the list of names and the order books for 2019/20) that was vital to ensure
the effective participation of the unions in the consultation process. 56 In this Court,
Solidarity takes issue with how the Labour Court dealt with this issue. In essence, it
argues that the Court “erred in not finding that a consulting party is entitled to an order
of procedural unfairness where a n employer failed to disclose relevant information or,
alternatively, directing the employer to disclose the information and interdicting the
54 I deal with the power more fully below.
55 TAWUSA above n 23.
56 Labour Court judgment above n 6 at para 6.
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dismissals as a result thereof ”. It seems that Solidarity’s complaint in this regard
concerns the failure to disc uss the annexure containing the selection criteria matrix at
the consultation meeting. I have already found that this omission did not lead to the
process being procedurally unfair. In light of that conclusion, I do not deal with the
issue further.
[74] It follows that the Labour Court was correct in holding that there could be no
reliance on section 189A(13) of the LRA.
[75] The next enquiry is whether the Labour Court’s assertion was correct that, once
dismissals have taken place, the horse has bolted. It is helpful to deal with this issue,
notwithstanding that any conclusion on it will not impact the order in this matter. I am
minded to deal with it because it was one of the reasons the Court non-suited Solidarity.
The Labour Court’s stance, as a general legal principle , is contrary to the various
decisions of this C ourt where it held that an application in terms of section 189A(13)
may be brought after consultations have concluded. Section 189A(17)(a) of the LRA
provides that “[a]n application in terms o f subsection (13) must be brought not later
than 30 days after the employer has given notice to terminate the employee s’ services
or, if notice is not given, the date on which the employees are dismissed” .
Section 189A(17)(b) provides that “[t] he Labour C ourt may, on good cause shown
condone a failure to comply with [this time limit]”. In Steenkamp II, this Court held
that—
“the procedure within section 189A(13) of the LRA provides for an urgent remedy on
application whilst the parties are still locked in consultations or shortly thereafter in
circumstances where the reinstatement of the dismissed employees can still salvage the
consultation process by restoring the status quo ante.”57
[76] In making the assertion that the horse had bolted, the Labour Court reasoned that
section 189A(13) is primarily aimed at compelling compliance with a fair procedure
57 Steenkamp II above n 10 at para 71.
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during the consultation process, and that this was no longer possible in this matter. In
support of this conclusion , the Labour Court simply stated that Solidarity brought the
application too late. Furthermore, by too eagerly dismissing a section 189A(13)
application without applying its mind to whether condonation ought to be granted, a
court risks allowing employers to evade responsibility for flouting the obligations
imposed on them by sections 189 and 189A of the LRA. Considering that Solidarity’s
members started receiving termination notices on 17 August 2020 and Solidarity
approached the Labour Court on 14 September 2020, the application was brought
within the requisite 30-day period.
Costs
Submissions
[77] Solidarity challenges the costs order granted by the Labour Court on the basis
that the application raised constitutional matters as well as other matters deserving of
the Court’s attention pertaining to the patent unfairness meted out to Solidarity’s
members. It also argues that the mere fact that it was litigating against a private
company and not the State does not justify an order as to costs. Furthermore, Solidarity
submits that the Labour Court erred in not having regard to the fact that the trade unions,
which are non -profit organisations, have now been mulcted in costs where a
constitutional issue was raised. It also argues that there is no basis to award costs where
general unfairness in the process existed and where there was patently no malice or
vexatious conduct in bringing the ir applications. Finally, it asks that costs in this
application be costs in the appeal.
[78] Barloworld submits that in awarding costs against Solidarity, the Labour Court
lamented the fact that it had to deal with volumes of documentation during truncated
time lines in an application that dealt with substantive issues and which was not
supposed to be brought in terms of section 189A(13). Thus , according to Barloworld,
the Labour Court did furnish the reasons for the adverse co sts order, as this Court had
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stated in Union for Police.58 Barloworld accordingly submits that this application ought
to be dismissed with costs.
Analysis
[79] This Court in Union for Police confirmed the position that applies to costs in
labour matters. It held that costs are not generally awarded in labour matters in
recognition of the right to fair labour practices and the right of access to courts, and also
on account of section 165 of the LRA, which requires a court to make a costs order that
accords with the law and fairness. It reasoned that these rights ring hollow when
employees are at risk of adverse costs orders which act as a deterrent to enforcing their
rights.59 This Court proceeded to confirm that in some instances, costs may be
appropriate, and that this will always be an exercise of a court’s judicial discretion . It
reasoned:
“In the labour context, the judicial exercise of a court’s discretion to award costs
requires, at the very least, that the court must do two things. First, it must give reasons
for doing so and must account for its departure from the ordinary rule that costs should
not be ordered. Second, it must apply its mind to the dictates of the fairness standard
in section 162, and the constitutional and statutory imperatives that underpin it.”60
[80] The costs order by the Labour Court has to be considered against the backdrop
of the fact that, although section 189A(13) should not have been invoked, it is harsh to
describe Solidarity’s conduct as an abuse of court process . The matters raised were
arguable and raised issues that affected the livelihood of many members of Solidarity
and NUMSA. Furthermore, one of the reasons the Labour Court decided to grant an
adverse costs order against Solidarity was its view that the application was an abuse of
the Court’s process. In this regard, the Labour Court misdirected itself in that its view
was based on a fallacious distinction between “compliance issues” and general
58 Union for Police Security and Corrections Organisation v South African Custodial Management [2021] ZACC
26; 2021 (11) BCLR 1249 (CC) (Union for Police).
59 Id at paras 24-8.
60 Id at para 35.
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procedural defects. The adverse costs order was thus not warranted and should not be
allowed to stand as there was no basis for it.
[81] I make the following order:
1. Leave to appeal is granted.
2. The appeal on merits is dismissed.
3. The appeal against costs is upheld and paragraph (3) of the order of the
Labour Court is substituted with the following:
“Each party is ordered to pay its own costs.”
For the Applicant: W P Bekker Instructed by
Serfonteni Viljoen and Swart
For the First Respondent: G Fourie SC and K T Mokhatla
instructed by Bowman Gilfillan
Incorporated