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[2014] ZALCJHB 99
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SACCAWU obo Members v Centre for Autism, Research And Education (J660/14) [2014] ZALCJHB 99 (26 March 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, IN JOHANNESBURG
JUDGMENT
OF INTEREST TO OTHER
JUDGES
CASE
NO: J
660/14
In
the matter between:
SACCAWU
OBO
MEMBERS
Applicant
and
CENTRE FOR AUTISM,
RESEARCH
AND
EDUCATION Respondent
Heard:
25 March 2014
Delivered:
26 March 2014
Summary:
(Urgent application-suspension of terminations pending further
consultation under s 189 – urgent relief
not an appropriate
remedy on the facts – s189A does not necessarily mean interim
relief can never be obtained in respect
of procedurally unfair
retrenchments not falling within that section)
EX TEMPORE JUDGMENT
LAGRANGE,
J
[1]
This is an application for interim relief
pending a final order. It is unusual in that it seeks to declare the
retrenchment of the
applicants invalid for want of the respondent’s
alleged compliance with s 189 of the LRA, pending the respondent
complying
with the provisions of that section.
[2]
The respondent chose not to file an
answering affidavit contesting the factual allegations in the
founding affidavit, except in
the broadest terms. It claimed however
that an order of this kind is only obtainable if the retrenchments in
question fall under
s 189A of the Act and it is clear on the facts
alleged by the applicants that they do not. The respondent also
claims the applicants
have an alternative remedy in the form of an
unfair dismissal claim in terms of which they can be reinstated or
paid compensation
if they are ultimately successful.
[3]
In essence, the applicants question the
bona fides
of the employer’s operational rationale for the retrenchments
and contend that the consultation process embarked on by the
respondent with them was a sham as the employer had already taken a
final decision to retrench them. Moreover they claim the employer
bulldozed the sham consultation process to fit its pre-determined
schedule so that it could proceed to retrench them with effect
from
the end of March 2014. The applicants were given notice of their
retrenchment on 3 March 2014.
[4]
On the contents of the founding affidavit,
it would appear that the applicants have made allegations on which a
finding of a procedurally
unfair retrenchment could be made and
possibly a substantively unfair one as well, though the latter is
less clear to me.
[5]
The question the court must decide is if
this is an appropriate case for urgent intervention. I do not believe
it was the legislature’s
intention that a failure to comply
with s 189 of the LRA renders a retrenchment unlawful, but only that
it renders it unfair. That
does not mean, in exceptional
circumstances, that the court might not intervene on an urgent basis
to ensure that a proper consultation
process takes place where it has
been manifestly wanting and, or alternatively if it might serve some
purpose in achieving the
objects of s 189 for the parties to be
compelled to engage or re-engage in consultations under s 189, even
where s 189A is not
applicable.
[6]
I am aware that there is a view that the
only remedy for unfair retrenchments where s189A does not apply is to
refer an unfair retrenchment
dispute through the conciliatory and
adjudicatory processes of the LRA. However, I am willing to accept
that for present purposes
the applicants might have a right to bring
urgent proceedings of this nature despite s 189A being inapplicable.
[7]
In this instance, there was a consultation
process of sorts,
albeit
that
it appears on a
prima facie
view to be seriously flawed. It also appears from the respondent’s
conduct of the consultations thus far, that it is unlikely
that
further consultation will be constructive and serve the objects of s
189.
[8]
In the circumstances, I do not believe that
it would be of any value to compel the respondent to engage in
further consultations.
This is also not a case where there has been a
complete failure to consult at all. I accept that the employees
might be prejudiced
in the interim pending the outcome of an unfair
dismissal hearing in due course, whereas the prejudice of suspending
their dismissals
pending further consultation to the respondent is
not as great, but the purpose of extending their employment in order
to enhance
the consultation process is unlikely to be achieved given
the history of the consultations thus far.
[9]
Accordingly, I believe that the applicants’
alternative remedy of challenging the procedural and substantive
fairness of their
dismissals in due course is not an inappropriate or
unsatisfactory one.
O
rder
[10]
In light of the above, the application is
dismissed, but no order is made as to costs in the light of the
respondent’s conduct
of the retrenchments as it appears from
the papers.
_____________________
R LAGRANGE, J
Judge of the Labour
Court of South Africa
APPEARANCES
For the
Applicant:
Advocate W.P. Venter
Instructed
by:
Potgieter Penzhorn & Taute
For the First
Respondent: No Appearance