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[2010] ZALCJHB 375
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SASBO v Standard Bank of South Africa (J2298/10) [2010] ZALCJHB 375 (12 November 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
DATE
: 12/11/2010
CASE
NO
: J2298/10
In
the matter between
SASBO
Applicant
and
STANDARD BANK
OF SOUTH
AFRICA
Respondent
J
U D G M E N T
LAGRANGE
J:
Background
[1]
On 12 November I handed down an
ex tempore
judgment in this
matter and provided brief reasons for my judgment, noting that I may
supplement them. The reasons for my
judgment and order are set
out more fully below.
[2]
On 8 November 2010, the applicant, SASBO, a union with members
employed by the respondent, Standard Bank, brought an urgent
application under section 189A(13) of the Labour Relations Act 66 of
1995 (‘the LRA’) seeking,
inter alia,
the
following relief:
“
(a) Compelling
the respondent to comply with Section 189A of the Labour Relations
Act 66 of 1995 (‘the LRA’) and the
Code of Good Practice
on Dismissal based on Operational Requirements prior to retrenching
any of the applicant’s members.
(b) Interdicting
and restraining the respondent from following the expedited or
‘urgent’ process of consultation
under exceptional
circumstances.
”
[3]
The applicant also sought an order compelling the bank to disclose
all relevant information relating to details of all alternative
measures to avoid retrenchment, with reference to expected savings on
specific items of expenditure, and measures to mitigate the
adverse
effects of retrenchment. Lastly, it sought an order compelling
the bank to engage in a meaningful joint consensus
seeking process as
required by the Code.
[4]
Prior to the hearing of the matter on 11 November 2010, the parties
were encouraged to try and find common ground on a way forward
by
devising an agenda and timetable to complete the consultation process
insofar as there were unresolved issues between them.
This
process appears to have been partially successful as the parties were
able to achieve a degree of consensus which was taken
from a proposal
made by the bank during the course of the morning. The portion
of that proposal to which SASBO agreed reads
follows:
"
The bank
proposes the following timetable for further consultation.
4.1
Your client be given until 12:00 on Friday 19 November 2010
to seek further clarity or information arising out of the information
given to your client on Tuesday.
4.2
Secondly, the bank will respond to any further request by close
of
business on Monday 22 November 2010.
4.3
Your client is invited to a consultation meeting on Tuesday
23 November 2010
to
consult on the issues raised by, or in the information given, request
and response, and on the outstanding matters referred to
in the
founding and replying Affidavits, including the number and profile of
affected staff, the estimation of the cost saving
from alternative
measures, and the projection of the estimated cost savings brought
about by the retrenchment, bonuses of the financial
year 2010/2011,
nonexecutive directors' fees, the use of labour brokers in the IT
department
.
"
(emphasis added)
[5]
What the parties were unable to agree upon was:
a)
Whether or not the bank could continue to complete the individual
consultation process with the
remaining 11 employees, who were the
only remaining potentially affected employees who had not been
consulted individually.
b)
Whether or not the further steps agreed upon did not affect the
processes completed to date and
did not affect the 60 day
redeployment period due to be completed by the end of December or the
proposed date of termination of
31 January 2011.
[6]
The union wanted the individual consultation process involving the
remaining 11 employees who had not yet been engaged it, to
be halted
pending the completion of the other agreed steps. It also did not
want the timetable for retrenchments to be set in stone,
but argued
that the final termination date should remain flexible.
[7]
The timetable adopted by the bank was not unilaterally decided but
comes from a collective agreement concluded between the parties
in
2006 entitled ‘Agreement on the handling of dismissals based on
Operational Requirements (DSORs)’. In
terms of that
agreement consultations for more than 14 SASBO members were to take
place at NCF meetings starting with a placement
of restructuring item
on the agenda of such a meeting, which the parties deemed would
constitute compliance with section 189(3)
of the LRA.
[8]
Further, the DSOR agreement (‘DSORA’) provides the
following consultation timetable:
“
Consultation
that takes place in the contemplated manner must, unless otherwise
agreed, be concluded within 10 working days from
the date on which
the union receives the invitation to consult. If the union
should require more information or further clarity,
then the request
for such information/clarity should reach the bank within 5 working
days of the date on which the union receives
the invitation to
consult. Once the bank responds to the union's request for
further information or clarity, the union must
conclude the
consultation with the bank within 3 working days from the date on
which the bank furnishes the union with further
details. These
timelines may be extended by agreement, where exceptional
circumstances justify the process."
[9]
Although the preamble talks about consultations with the union taking
place within a reasonable time (see below), it is clear
that the
union committed itself to the above timetable when it signed the
agreement and specifically agreed that it would only
be extended by
agreement.
The
consultation process
[10]
In this instance, there was no other agreement reached between the
parties about an alternative timetable. The bank claims
to have
acted in terms of the timetable set out in DSORA. Indeed, the first
consultation meeting was held on 11 October and the
second, ten days
later on 21 October 2010.
[11]
At the first meeting the bank provided a Powerpoint presentation
which met most of the requirements of section 189(3) , though
failing
in one important respect, namely to provide the number and profile of
staff who might be affected. This was only provided
at the second
meeting where it turned out that number of potential retrenchments
was considerable and unlike the scale of any previous
retrenchment.
The last time the union had been involved in a retrenchment exercise
it involved retrenchments roughly one
tenth of what was proposed on
21 October 2010. SASBO argued that DSORA was never intended to
address large scale retrenchents,
but the preamble to the agreement
does not qualify in any way the size of the potential retrenchments
which it applies to, nor
is such a limitation to be found anywhere
else in the agreement. It merely states that:
“
The bank and
the union agree to the following regarding Dismissals based on
Operational Requirements.
This agreement supercedes
all previous arrangements between the union and the bank regarding
DSORs. The parties agree that where
the DSORs are conducted in the
manner contemplated in this agreement, the requirements of section
189 and 189A will have been sufficiently
met.
The parties acknowledge
that any DBORs which are effected will be a last resort and the bank
will attempt as far as possible and
practicable to avoid such
dismissals
The parties acknowledge
that section 189A of the LRA contemplates a period of 60 calendar
days within which no DBORs may be effected
and a further period of
notice which must preceded the DBORs. The parties acknowledge that in
terms of the bank’s policy,
the standard notice period of one
(1) month will be applicable in all DBORs. Accordingly, the bank will
first conclude consultations
with the union and affected employees
(provided consultations with the union are concluded within a
reasonable time) and then implement
redeployment efforts for a 60-day
period.
Should redeployment
efforts fail, then one (1) month’s notice will be given to
affected employees. Redeployment efforts will
continue to apply
during the one-month notice period.
”
[12]
SASBO also complained in its founding papers that the bank did not
provide it with the target saving to be achieved in the
process and
an estimation of the cost saving from alternative measures that could
be adopted to avoid or minimize retrenchment.
This is an issue
I will return to later.
[13]
Between the two consultation meetings on 11 and 21 October 2010,
SASBO sent a list of pertinent questions to the bank
which were
answered the day before the second meeting. SASBO had sent these
questions to the bank on 15 October, within the timetable
envisaged
in DSORA. It should be mentioned that although the questions raised
included a request for information on all alternative
measures the
bank had implemented it did not specifically ask for the targeted
savings the bank expected to achieve.
[14]
On 16 October SASBO raised a further concern about what might happen
if the consultations were not concluded at the next meeting
on 21
October, particularly in the light of the banks’ stated
intention to notify affected staff on the 22 October.
This was an e-mail prefaced by a reference to an earlier e-mail
saying that the unioin had additional concerns they wanted to raise.
The pertinent portion of the email reads:
"
What
does
the bank believe will be the position if consultations are not
concluded on Thursday, taking into account that staff have already
been told that those affected will be advised on Friday 22 October,
one day after our consultation session
. We are
extremely
concerned about the style of communication to
staff
as it seems SASBO will simply be presented
with a fait accompli
, to which SASBO will agree, and then
the bank can happily proceed. What is the bank's intention
once
consultations have been concluded and finalised with the staff who
are affected
.
"
The
e-mail goes on to say:
"
Surely their
services cannot be terminated before the end of the redeployment
period.
"
[15]
It is clear the union had a genuine and not unfounded concern that an
impression might have been created in the eyes of its
members that it
would simply accede to whatever the bank proposed. The bank
apologized for a manager who had improperly mentioned
the dates for
the retrenchment phases had been shared with SASBO at the first
meeting. Importantly, in answer to SASBO’s
question about the
timetable, the bank reiterated its intentions regarding the envisaged
stages of the retrenchment. It also
indicated its view that if
it responded to SASBO’s concerns and allowed time for
consultation to address further concerns
it would have consulted
‘sufficiently’ with the union. After receiving
management’s response on 19 October 2010,
the union ought not
to have been in any doubt that management was not proposing to extend
the consultation process and was intending
to embark on the
individual consultation phase on 22 October 2010. The union did
not respond to this by way of stating what
its attitude would be if
management proceeded to follow its timetable, if it was not satisfied
that there had been sufficient consultation
after the meeting on 21
October 2010.
The
meeting of 21 October 2010
[16]
At the scheduled meeting on 21 October, which would have been the end
of the ten day consultation period provided for by agreement
in
DSORA, the bank made its intentions about the prospective number of
retrenches clear. The upper limit of possible retrenchments
was
estimated to be in the region of 1700 management staff. In the course
of a further presentation by the bank a number of issues
were
addressed which were set out in the banks answering affidavit. In
summary, these were:
(a)
information requested by SASBO on 11 October was provided;
(b)
aternatives proposed by SASBO were dealt with
(c)
analternative of providing an additional month for re-deployment was
declined and reasons given;
(d) a
alternative of providing a 13
th
cheque instead of an
additional month’s redeployment was agreed to;
(e)
labour brokers were dealt with;
(f) the
bank’s business case was restated in more detail;
(g) measures
to reduce costs without retrenching were dealt with;
(h) positions
and numbers of staff whom the exercise might impact on were provided;
(i)
each division of the bank’s rationale for reducing costs was to
be provided and the case for a
number of divisions was set out, and
(j)
the rationale for the need to retrench and alternatives already taken
was set out.
[17]
The bank also presented again the phases of consultation as it
envisaged them. SASBO disputes none of this on the papers.
Tellingly, it makes no claims in its founding affidavit that it made
any demand for the extension of the timetable for consultation
or
proposals to defer the individual consultations with the potentially
affected employees until further consultations had taken
place.
Ebersohn, SASBO’s Assistant General Secretary, who deposed to
the union’s affidavits only states somewhat
baldly in his
replying affidavit:
“
I asked the
question: ‘What would happened if this urgent process is not
completed by 21 October 2010?” The Respondent
refused any
extension.”
[18]
It is reasonable to suppose that had the union pertinently objected
to the retrenchment process proceeding on the bank’s
timetable,
this would have featured prominently in the founding affidavit.
The union’s reticence in engaging the bank
is also suggested by
another statement in the founding affidavit. After noting that SASBO
‘…
detected a change in approach to dismissals based
on operational requirements and striving for profit
’,
during the meeting of 21 October 2010 and making comments about
the shareholding of a major Chinese bank in Standard
Bank, Ebersohn
states without elaboration:
“
The applicant
detected that the respondent was acting hastily and in a high handed
manner in this retrenchment.
”
[19]
However, there is nothing to indicate that the union expressed this
view to the bank. The very language used in the affidavit
creates an
impression that SASBO was observing the bank’s behavior in the
consultation process without engaging directly
and unequivocally with
the bank over areas of disagreement. Asking questions without
reacting to the answers or without indicating
that a response will be
forthcoming can create a false impression that one is not
dissatisfied with the answers given.
[20]
The bank also averred that only two issues remained outstanding at
the end of the discussions which ensued, namely an issue
concerning
conversion of pensions and a request to extend the date for
finalizing re-deployment until February 2011. The
union denies
there were only two issues outstanding and in particular avers it
insisted on meaningful joint consultations with
a view to seeking
consensus. Again, this a claim made only in reply and ought to have
featured prominently in the founding affidavit
if SASBO had
indeed been rebuffed when it made such claims. It also claims
it requested various information relating
directors’
remuneration, bonuses and the use of labour brokers in the IT
department. In its papers before court the union
contended the bank
had failed to provide critical information that the alternatives were
properly considered and that retrenchment
was a last resort. This
only first surfaced in SASBO’s letter over a week later, once
the individual consultations were already
well underway.
[21]
The union also does not dispute that when it was asked at the end of
the meeting if there were ‘any further questions’
its
answer was ‘no’. How the meeting ended is important
to examine. The union was aware that the bank was planning
to send
out letters to all potentially affected employees with a view to
commencing individual consultations with them. This is
the first step
in a 60 day ‘re-deployment’ phase in terms of the
agreement. It is clear that this phase ought
only to be
embarked upon after the conclusion of the consultation phase with the
union which would traverse the matters set out
in section 189(2) of
the LRA, yet the union did not make an attempt to decisively
intervene at this point.
[22]
At the meeting on 21 October 2010, SASBO was given a copy of a draft
letter that the bank intended to issue to the affected
employees the
following day. The letter sets out again the banks reasons and
proposals and announces its intention to consult with
the individual
employee, particularly on the impact it might have on them. There are
two important paragraphs on the first page
of the letter which must
be specifically mentioned, namely:
"The bank
has
already consulted SASBO
regarding the dismissals based on
operational requirements, and the possible affect thereof on
positions. SASBO is in principle
opposed to any form of
dismissal based on operational requirements. Please note that
the
Labour Relations Act requires
consultation, and not agreement
with SASBO regarding dismissals based on operational requirements."
and
"
Despite
the fact that the consultation requirements of the
Labour Relations
Act have
been met
through the
union consultation, I nevertheless wish to meet with you to inform
you of the process followed so far, and what is
being envisaged.
"
(emphasis
added)
[23]
The union claims in its reply that it was impossible at 17h00 on 21
October to ‘haggle’ over the wording of the
letter,
taking into account that the letters when out the next day. It also
said there was no consensus on the issue. Once again
this explanation
for not objecting to the letter is only offered in reply. The union
fails to explain why it did not specifically
tackle the bank on the
two paragraphs above which would strongly suggest to the reader that
the first phase of consultation was
complete. SASBO makes no
allegation that it asked the bank not to send out the letters because
that would be premature, nor
that it requested the letters to be
amended so as not to create the impression that consultations between
itself and the company
had concluded.
[24]
It also noteworthy that at the end of the meeting on 21 October 2010
the union did not seek to extend the consultation process.
It
could well have insisted on further consultation over the following
days even in terms of DSORA, which specifically envisages
three
further days for consultation after receipt of further details by the
bank. It was only on 28 October 2010, a week later,
that the union
states more forceful opposition to the process moving forward and
demands meaningful consultation. The union could
also easily have
given the bank an ultimatum not to proceed to issue letters to the
individual employees without further consultations
taking place to
deal with issue on which no consensus had been reached. As mentioned
above, I cannot place much reliance on the
statement that the bank
refused to extend the process when this was only stated in the
replying affidavit.
[25]
Consultation
is a two way street. If the employee party to the consultations does
not assert its rights at the appropriate time,
the employer cannot be
entirely blamed for shortcomings in the process.
[1]
[26]
If SASBO believed that the process it engaged in was so wanting, it
should have made this point more forcefully at the second
consultation meeting rather than waiting a week to put it in writing.
It is difficult to understand why the union only started
to emphasise
the issues raised in its letter of 28 October, nearly a week
after the letters to individual employees had already
gone out.
Similarly, if the union representatives were so shocked by the
proposed number of retrenchments, the question arises
why it did not
seek to extend the consultation process between it and the bank as
soon as it became aware of the scale of the proposed
retrenchments.
[27]
The seemingly acquiescent approach of the union is apparent also in
the newsletter it issued to its members the day after receiving
the
devastating news at the second consultation meeting. The letter notes
that it held a second round of consultations with
the bank and
that it was stressed to the bank that it did not agree with its
planned action and that people should not be sacrificed
for increased
profitability. Having set out SASBO’s principled stance
the newsletter goes on to say that ‘…
the bank’s
plan for this exercise is as follows
and is in line with
existing agreements
between Sasbo and the bank
”
(emphasis added). This is not how one would have expected SASBO to
have dealt with the question whether the individual consultations
were premature if it believed that to be the case. Nowhere in the
letter does it mention a request to extend the consulation process:
the only requested extension of the process which is mentioned in the
letter relates to the re-deployment phase, which is something
that
was reiterated in court.
Compelling
further consulatation
[28]
Before looking at the more specific issues pertaining to consultation
in this retrenchment exercise, I wish to address the
union’s
request for blanket relief compelling the employer to abide by the
provisions of
section 189A.
The true value of the kind of
interdict envisaged by
section 189A(13)
is that it provides employees
with an opportunity to make sure that retrenchment consultations are
properly conducted before retrenchments
are implemented.
Although claims for compensation as a result of an unfair procedure
are still possible, where appropriate,
the options of approaching the
court on an urgent basis or of threatening strike action are ways of
remedying defective consultation
processes at the time such
interventions can make a difference to the outcome.
[29]
The
introduction of the 189A procedure has a short-term preventative aim
of pro-actively fostering proper consultation, as opposed
to a long
term remedial one of compensating employees, following a belated
‘post-mortem’ examination on what was wrong
with the
process, long after workers have been retrenched. For this reason,
blanket orders which lack specificity about what the
parties ought to
do are of little value in my opinion and, as far as possible, orders
made under
section 189A(13)
should be crafted to address the defects
in the process.
[2]
[30]
I accept that the process was brief and not as substantial as it
might have been as a genuine joint consensus seeking process
on
issues such as the extent to which retrenchments might be avoided or
minimized. Thus there is some merit in my view in SASBO’s
complaints set out in its letter of 28 October 2010, that in the
absence of a costing of the savings to be achieved by retrenchment
and other savings measures that might be implemented it was difficult
to meaningfully evaluate alternatives. In order to understand
the
feasibility or lack thereof of alternative proposals in context it is
necessary to evaluate, in the current retrenchment exercise
what the
expected cost savings aimed at by the bank will be. In turn this
enables any alternative proposals to be measured and
compared with
that financial objective. It is in that context that meaningful
discussion of alternatives can take place.
It is difficult to see
objectively how the parties could have meaningfully engaged with a
view to reaching consensus without this
material available. The
provision of proper information in this regard, is obviously also
important to demonstrate why there is
a need to retrench as opposed
to adopting other cost savings measures. Accordingly, I find
that the consultation process
to date has only partly met the
requirement of joint consensus on ways to avoid and minimize
retrenchment, but the proposal by
the bank goes a long way to meeting
this.
[31]
In its proposal made on 12 November 2010, the bank has now
effectively offered to provide the information and consult on the
issues identified in paragraph 4 of its letter, which SASBO accepts.
The bank in fact undertook to do this irrespective of what
the court
might have ordered. I am satisfied that the proposal set out in
paragraph 4 of the banks letter of 11 November 2010 should
address
the outstanding concerns of the union over matters on which it
believes there was insufficient consultation, though I believe
provision should be made for two more meetings within a short period
to ensure that discussions are exhausted in order to remedy
the
limited scope of consultation on these issues thus far.
[32]
Therefore, with the modifications set out in the order below, I think
the contents of paragraph 4 of the bank’s proposal
should
resolve any outstanding concerns the union has, even if consensus
might not necessarily be achieved. The modification I
have made is
provide for a slightly extended period of structured consultation to
try and ensure that the parties really try and
engage with a common
purpose to try and reach consensus on ways to minimize or avoid
retrenchments if feasible, rather than merely
communicating by means
of ‘question and answer’ session. Whether the
opportunity is constructively used will
depend on both parties.
Postponing
individual consultations
[33]
The union has requested that the process of individual consultations
in respect of the remaining 11 employees who have not
been engaged
should be halted pending further consultation between the union and
the bank. In view of the fact that these are only
a handful of the
affected employees it does not seem to make sense to me to prevent
those interviews going ahead. If any broad
measures are agreed upon
by the bank and the union to avoid or minimize retrenchments, there
is no reason why these 11 employees
would be any less eligible to
benefit from such measures than the employees who have already been
consulted by the bank.
[34]
Had the union made a more serious request that the bank should not
proceed with these individual consultations before consultations
with
it could be concluded, and if only a small number of individual
consultations taken place, the relief sought might have been
more
appropriate.
Extending
the re-deployment period
[35]
The union also requests the court to order an extension of the whole
timetable so that any retrenchments will only take place
at the end
of February. This is a matter which the parties have been unable to
reach consensus on, but on which the bank has offered
additional
financial compensation in an attempt to provide some financial
amelioration in lieu of an extended retrenchment date.
In the
context of a
s 189A(13)
application unless such an extension is
necessary for the completion of consultations it does not seem
appropriate for the court
to simply order an extension of the
proposed retrenchment date. In the current circumstances, any
further consultation which
does occur, does not require an extension
of a termination date some months hence.
When
is a union confronted with a ‘
fait accompli’
in
the context of retrenchments?
[36]
A final
comment must be made about the question of employees being presented
with a
fait
accompli
in the context of retrenchment exercises. It is trite law that when
employees are confronted with a
fait
accompli
any subsequent consultations may be fatally flawed.
[3]
A
fait
accompli
in the context of retrenchments s manifests itself typically when an
employer takes unilateral action which forecloses the prospect
of
meaningful consultation on one or more of the issues in respect of
which it ought to consult. Under such conditions a
union party
that is asked to consult where the employer has taken such action may
rightly cry ‘foul’. However,
if management has only
proposed to take certain action and the union party does not
pertinently raise its voice in protest against
such plans, then if
management does proceed and the union does nothing to intervene at
that juncture, the union is less able to
justify a belated complaint
about the step taken. In this case, one gets a sense that the
union took the proposed management
time line, including the planned
date for sending out letters to be a
fait
accompli
,
which it could simply make a note of to itself and keep ‘in
reserve’ as a point to be used against the bank
on a
later day, rather than tackling the issue at the time and giving the
employer an ultimatum to withdraw the offensive step.
Under such
circumstances, if an employer still proceeds, it runs the risk that
it might rightly be accused of thwarting a meaningful
consultation
process by its unilateral action, unless it can show that it could
not reasonably have been expected to consult further
on that issue at
that stage.
[37]
In closing, it must be mentioned that although a number of issues
regarding the need for retrenchment and alternatives were
mentioned
in court and in the papers, the question of whether the proposed
retrenchments will be substantively fair if they are
implemented is
not a matter for the court to consider under
section 189A(13)
proceedings.
Order
[38]
In the light of the reasoning above, an order is made as follows:
a)
The undertakings in the banks letter to SASBO of 11 November 2010 are
placed on record.
b)
In the event that the process envisaged in paragraph 4 of the letter
does not result in consensus
on the question of ways of avoiding or
minimizing retrenchments, the parties are directed to hold two
further meetings at least
one working day apart before 1 December
2010 in order to allow more time for consulting and attempting to
reach consensus.
c)
In such meetings the parties must keep a record of proposals made and
responses thereto, and of
information requested and provided.
d)
There is no order as to costs
ROBERT
LAGRANGE
JUDGE
OF THE LABOUR COURT
Date
of Hearing : 11 November 2010
Date
of Judgment: 12 November 2010
Attendances
For
the applicant: C Roodt instructed by Smit Sewgoolam Inc
For
the respondent: T Bruinders, SC instructed by Bowman Gillfillan
Attorneys
[1]
See
Johnson
& Johnson (Pty) Ltd v Chemical Workers Industrial Union
(1999)
20
ILJ
89 (LAC)
at
96, viz”
“
[28]
The achievement of a joint consensus seeking process may be foiled
by either one of the consulting
parties. The employer may obviously
frustrate it by not fulfilling its obligations under
s 189(1)
, (3),
(5), (6) and (7). The other consulting party may do it by refusing
to take part in any of the stages of the consultation
process, or by
deliberately delaying the whole process (cf NEHAWU v University of
Fort Hare
[1997] 8 BLLR 1054
(LC); UPUSA & others v
Grinaker Duraset
[1998] 2 BLLR 190
(LC) at 204D; Fowlds v SA
Housing Trust Ltd & another case no J561/98 (LC) at para [11]).
It may also appear that any one
of the parties simply went through
the entire formal process with no intention of ever genuinely
reaching agreement on the issues
discussed. These different
possibilities depend on the facts of each particular case.
[29]
The important implication of this is that a mechanical, 'checklist'
kind
of approach to determine whether
s 189
has been complied with
is inappropriate. The proper approach is to ascertain whether
1999
ILJ p97
FRONEMAN
DJP
the
purpose of the section (the occurrence of a joint consensus seeking
process) has been achieved (cf Maharaj & others v
Rampersad
1964 (4) SA 638
(A) at 464; Ceramic Industries Ltd t/a Betta
Sanitaryware & another at 701G-702H (BLLR), 676B-677C ( ILJ );
Ex parte Mohuloe
(Law Society Transvaal intervening)
1996 (4)
SA 1131
(T) at 1137H-1138D).
[2]
I
agree also with the analysis of Van Niekerk AJ, as he then was,
regarding the flexibility of remedies in
section 189A(13)
in his
judgment in
Banks
& another v Coca Cola SA - A Division of Coca Cola Africa (Pty)
Ltd
(2007) 28
ILJ
2748 (LC),
where
he stated at 2755-6:
“
[15]
It is well established that the aim of the consultation process
established by
s 189
is to avoid dismissal, or at least to effect a
reduction in the number of dismissals and to mitigate the effect of
dismissal
on affected employees. The nature of the process is
equally well established - the parties are required to engage in a
problem-solving
or joint consensus-seeking exercise (see
s 189(2)).
[16]
The four remedies established by subsection (13) afford the court a
wide discretion.
The first two remedies (a compliance order, and an
interdict against dismissal) clearly contemplate intervention by the
court
before a dismissal takes effect, the latter (reinstatement
until there is compliance with a fair procedure, monetary
compensation)
contemplate intervention after an employee has been
dismissed. This provision is to be read with the time-limits
established
by subsection (17). These contemplate intervention by
the court at a time that is appropriate given the circumstances of
the
case, and having regard to the particular remedy that is sought.
[17]
The requirement in subsection (17) that an application 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', read with subsection
(13), places what might be termed an 'outside limit' of 30 days
post-dismissal
or notice of dismissal within which the application
must be brought. However, the wording of the subsection and the
structure
of
s 189A
generally envisage that the court may be
asked to intervene at any appropriate stage during a consultation
process that
has been initiated, or even prior to that, for example,
when an employer purports to dismiss employees without commencing
any
consultation with them or their representatives.
[18]
In short, the conclusion to be drawn from the wording of
s 189A
is
that this court appears to have been accorded a proactive and
supervisory role in relation to the procedural obligations that
attach to operational requirements dismissals. Where the remedy
sought requires intervention in the consultation process
prior
to dismissal, the court ought necessarily to afford a remedy that
accounts for the stage that the consultation has reached,
the
prospect of any joint consensus-seeking engagement being resumed,
the attitude of both parties, the nature and extent of
the
procedural shortcomings that are alleged, and the like. If it
appears to the court that little or no purpose would
be served by
intervention in the consultation process in one of the forms
contemplated by
s 189A(13)(a)
, (b) and (c), then compensation as
provided by para (d) is the more apposite remedy.
[19]
In Insurance & Banking Staff Association & another v Old
Mutual Services
& Technology Administration & another (2006)
27 ILJ 1026 (LC), Pillay J came to a similar conclusion. In that
case, the
court noted that although the timing of a
s 189A(13)
application is not connected to the date when the procedural
unfairness occurred, it is a relevant consideration as to
whether the application should succeed. More specifically, the court
held that if there is an undue delay between the occurrence
of the
procedural flaw and the launching of the application, the remedies
established by subsection (13)(a) -(c) would be inappropriate
(at
1031G-H). Similarly, these remedies are not appropriate once the
retrenchment process is completed (at 1031H-I)
.”
[3]
See,
for example,
SA
Clothing & Textile Workers Union & Others v Discreto –
A Division of Trump and Springbok Holdings
(1998) 19
ILJ
1451 (LAC);
General
Food Industries Ltd v Food & Allied Workers Union
(2004) 25 ILJ 1260 (LAC)
;
National
Union of Mineworkers v De Beers Group Services (Pty) Ltd &
another
(2009) 30
ILJ
1880 (LC);
Robinson
& others v Price Waterhouse Coopers
(2006) 27
ILJ
836 (LC),
and
National
Union of Metalworkers of SA & others v Dorbyl Ltd &
Another
(2004) 25 ILJ 1300 (LC)