About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 317
|

|

SASBO The Finance Union obo Fourie v Nedbank Limited (J2011/19) [2019] ZALCJHB 317; (2020) 41 ILJ 500 (LC) (28 October 2019)

THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
CASE NO: J 2011/19
In
the matter between:
SASBO THE FINANCE
UNION obo
JOHANNES PETRUS
FOURIE

Applicant
and
NEDBANK
LIMITED

First Respondent
Heard: 22 October 2019
Judgment
delivered:  28 October 2019
JUDGMENT
VAN NIEKERK J
[1]
On 3 October 2019, the respondent (the bank) gave the applicant
notice of termination
of his employment, on account of the bank’s
operational requirements. In this application, filed in terms of s
189A (13)
of the Labour Relations Act (LRA), the applicant contends
that the bank failed to comply with the statutory requirements of
fair
procedure.
[2]
The primary procedural flaw in the process on which the applicant
relies is the bank’s
failure to issue a notice in terms of s
189(3) the LRA before it commenced what it describes as a
consultation process. He contends
that this failure is fatal, since s
189 (3) states that an employer ‘must’ issue the notice
before any consultation
in terms of the LRA can commence. The bank on
the other hand contends that there has been substantial compliance
with the Act.
[3]
I deal first with the question of urgency. The applicant has set out
the basis on
which he contends that the application should be heard
as an urgent application. The bank disputes that the application is
urgent.
It is not necessary for the court to decide whether the
application is urgent. Section 189A (13) applications do not require
that
an applicant seek condonation the matter ought to be heard
outside of the normal time limits – the section contains its
own
time limit and requires only that the application be filed within
30 days of any notice of termination of employment. Although s189A

(13) applications are enrolled on the urgent roll, this is done as a
matter of convenience. The present application was filed within
the
30-day time limit and there is thus no bar to it being heard.
[4]
The material facts are not in dispute. The applicant was employed in
November 2000,
and he occupies a senior position in the bank’s
client coverage department. As I have indicated above, the applicant
is currently
serving his notice. The notice has its roots in a
meeting held between the bank and the union on 30 April 2019, when
the bank met
with the union about the proposed restructuring of the
department. The bank wished to make the department more ‘agile
and
competitive’, and proposed ‘a sectorised approach to
afford it greater opportunities in the sector/supply value chain,

with a view to achieving its strategic aim of becoming trusted
advisors to its clients by leveraging greater knowledge of the
clients’ specific needs through deep relationships’
(sic).  The bank presented its business case to Mr. Wayne
Hattingh, a union official present at the meeting. It was made clear
to the union that employees in the bargaining unit would not
be
affected, but that there may be job losses at more senior levels,
including the client coverage department. The union requested
that it
be present during direct engagement with employees.
[5]
A meeting was convened on 9 May 2019, at which the applicant was
present. Hattingh
could not attend the meeting, but had one of his
colleagues ‘dial-in’ to the meeting. At this meeting, the
bank’s
business case was again presented. Affected employees
(including the applicant) were invited to make proposals regarding
the proposed
change by 20 May 2019. The applicant submitted a
question on 17 May 2019, and received a response on 21 May 2019. A
document consolidating
all of the questions raised by employees and
the answers to those questions was emailed to the affected employees.
[6]
On 22 May 2019, the bank again met with affected employees. The union
was neither
invited to nor present at the meeting. The employees were
thanked for their feedback, which was discussed. The bank avers that
there were no objections to the proposed new structure, which was
confirmed. Employees were invited to apply for ‘roles’
in
the new structure by completing a form indicating three preferred
roles supported by a motivation and summarised personal profile.
[7]
On 27 May 2019, the applicant applied for three positions in the new
structure. A
single interview was conducted in respect of the three
positions. The applicant was also told that he would be considered
for placement
in what was described as ‘tier 3 of the client
coverage structure’. On 13 June 2019, the applicant was advised
that
none of his applications for positions in the new structure had
been successful. On 10 July 2019, the employee was advised that
he
had not been placed in the tier three structure.
[8]
On 26 July 2019, the bank advised the applicant that he would be
placed in what was
termed an ‘operational redeployment pool’
on the basis that if he was not placed in a role within two months
from 1
August 2019, he would be given a months’ notice of
termination of employment, being the month of October 2019. On 3
October
2019, the applicant was given notice of termination of his
employment.
[9]
As early as 7 August 2019, the union raised with the bank its failure
to issue a s
189 (3) notice and its concerns in this regard. The
concern was repeated in an email sent to the bank the next day, 8
August 2019.
On 14 August 2019, the bank’s HR executive
replied, stating that the bank considered that it had engaged in a
fair process
to seek consensus with affected employees. On 15 August
2019, the union replied, reserving its rights, and asking when the
bank
intended to serve the s 189 (3) notice. The email noted that the
60-day period commenced only on the date of receipt of the notice,

and demanded retraction of the letters to affected employees
(including the applicant) notifying them of their placement in the

redeployment pool. On 15 August 2019, the bank replied by stating
that it believed that it had satisfied the substance of the relevant

legal provisions. The bank has provided no other explanation for its
non-compliance with s 189 (3).
[10]
The purpose of s 189A has been referred to in a number of judgments.
In short, the introduction
of s 189A sought to enhance the
effectiveness of consultation in larger scale retrenchments, amongst
other things by the introduction
of the option of facilitation at an
early stage, an option that may be elected by the employer in the s
189(3) notice, or by affected
employees or their representatives
within 15 days of the date of the s 189 (3) notice. The appointment
of a facilitator suspends
the employer’s right to dismiss for a
period of 60 days, calculated from the date on which the s 189 (3)
notice is issued.
If a facilitator is not appointed, the employer’s
right to dismiss is similarly subject to the expiry of specified time
periods,
calculated from the date of the s 189 (3) notice. If notice
of termination is given, employees have the option to exercise the
right to strike over the substantive fairness of their dismissals, or
to refer a dispute about substantive fairness to arbitration
or
adjudication (but not both).
[11]
Section 189A (13) provides a procedure for the resolution of disputes
about procedural fairness
by way of motion proceedings. The section
reads as follows:
(13)
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 the 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)
to (c) is not appropriate.
[12]
Section 189A was introduced as part of the raft of legislative
amendments effected during 2002.
For present purposes, the
significance of the section is the separation that it effects between
substantive and procedural fairness
in retrenchment disputes, and the
right that it confers on an employee to approach this court to insist
on a fair procedure either
before or shortly after any termination of
employment. The policy underlying section 189A was set out by Murphy
AJ (as he then
was) in
National Union of Metalworkers of South
Africa & others v SA Five Engineering & others
(2004) 25
ILJ
2358 (LC) where he said at paragraph 7 of the judgment:
Disputes about procedure
in cases falling within the ambit of s 189A cannot be referred to the
Labour Court by statement of claim,
but must be dealt with by means
of motion proceedings as contemplated in s 189A (13), the exact scope
of which I will return to
presently. Suffice it now to say that the
intention of s 189A (13), read with s 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.
[13]
Section 189A (14) provides that the court may make any appropriate
order referred to in s 158(1)
(a). That section confers a broad range
of powers on the court, including the right to grant urgent interim
orders, interdicts
and declaratory orders.
[14]
The preamble to s 189A (13) makes clear that the court’s
intervention is limited to instances
of a refusal or failure by the
consulting employer to comply with a fair procedure. What the
subsection seeks to accomplish, in
the face of a prohibition on the
right to strike over any dispute that concerns the procedural
fairness of a retrenchment and the
limitation on the right to refer a
dispute of that nature to this court for adjudication in terms of s
191, is to extend to this
court a  supervisory role over the
consultation process, with powers to intervene if and when necessary,
and to craft remedies
designed to address any procedural shortcomings
that are found to exist. The section is not an invitation to
consulting parties
to use this court to micro-manage a consultation
process – intervention ought to be limited to a substantial
failure or refusal
to comply with the relevant statutory
requirements.
[15]
In my view, a failure to issue a s189 (3) notice falls into that
category.  I accept that
during the course of the process that
it adopted, the bank dealt with the issues listed in the section. It
disclosed information
relating to the reasons for the proposed
dismissals, alternatives, the number of employees likely to be
affected the timing of
the of the proposed dismissals, and the like.
Further discussions with affected employees addressed these issues.
[16]
A s189 (3) notice is more than an informal notice to participate in a
consultation process. First,
the language in which the section is
cast is significant. Section 189 (3) provides that an employer
intending to consult
must
issue a written notice inviting the
other consulting party to consult. The section is peremptory. The
present dispute is not one
that concerns the terms of a s 189 (3)
notice, a dispute in which substantive compliance may often be
sufficient to satisfy the
requirements of procedural fairness having
regard to the relevant facts. The present dispute is one where no
notice was issued
at all. Secondly, and even if I were to accept that
the informal framework within which the parties to the present
dispute conducted
themselves achieves the broad object of meaningful
consensus-seeking, the notice is a significant statutory trigger for
a number
of events and options. For this reason particularly, the
issuing of s 189(3) notice is peremptory. The notice is the basis for
the computation of time periods that regulate ultimately the timing
of any dismissal. It also triggers the right to require the

intervention of a facilitator, and the time periods that regulate the
making of that election. If a facilitator is not appointed,

consulting parties are precluded from referring any dispute to the
CCMA unless 30 days have elapsed form the date of the notice.
Whether
or not a facilitator is appointed, the right to strike (or to refer
any dispute about substantive fairness to this court)
must be
exercised within time periods that are ultimately triggered by the
date of the s 189 (3) notice. If this court were to
hold that
compliance with s 189 (3) was other than peremptory (or that the
threshold of compliance was a degree substantial compliance),
the
time periods established by s 189A for the intervention of a
facilitator, the giving of notice of termination of employment,
the
issuing a strike notice and the date by which a dispute must be
referred to this court would be difficult if not impossible
to
determine. That uncertainty is the antithesis of what s 189 and s
189A seek to achieve in the procedural process that they respectively

establish. Finally, it should be recalled that the provisions of s
189 and s 189A have their roots in the constitutional right
to fair
labour practices (see s 23 of the Constitution), and in particular,
the right not to be unfairly deprived of employment.
It follows that
a strict approach to the procedural requirements established by the
LRA is warranted, and that this court should
not easily overlook any
one or more of those requirements.  This is particularly so in
respect of s 189 (3), where so much
of what follows is regulated by
reference to the baseline set by the date on which the notice is
issued. For all of these reasons,
the requirement to issue a notice
in terms of s 189 (3) is peremptory, the bank’s failure to
issue the notice is procedurally
unfair.
[17]
Turning then to the question of an appropriate remedy, Mr. Goosen,
who appeared for the applicant,
submitted that the appropriate remedy
was that the applicant’s notice of termination of employment be
set aside, and the
bank be directed to file a notice in terms of s
189(3). In effect, this would require the applicant’s continued
employment
and the commencement of a consultation process. Section
189A (13) provides that the court may grant an order compelling the
employer
to comply with a fair procedure, interdicting or restraining
the employer form dismissing an employee pending compliance with a

fair procedure, ordering reinstatement pending compliance with a fair
procedure and making an award of compensation. As the Constitutional

Court observed in
Steenkamp & others
v Edcon Ltd
(20190 40
ILJ
1731 (CC), an award of compensation is to be granted only when the
(other) primary remedies are inappropriate. The latter are ‘preferred

remedies’ (see
Steenkamp
(2016)
37
ILJ
564
(CC)
.
The
court must be guided by this hierarchy, the remedy that is sought by
the applicant and what is most appropriate to get the
process of
consultation back onto a fair track. The applicant seeks to place the
consultation process on track in manner that complies
with the time
periods established by s 189A. The bank, as I have noted, has
provided no substantive explanation for its failure
to issue a s 189
(3) notice. The bank has not established that the prejudice it might
suffer should the consultation process be
put back onto the statutory
track is such that it militates against the granting of an order
requiring strict compliance with the
Act. The order sought will have
the effect of establishing certainty as to the time periods to be
observed, and will permit the
union to consider and exercise the
options available to it (to request a facilitator, to issue a strike
notice or to refer any
dispute about substantive fairness) within the
prescribed time limits. It will also establish certainty as to when
the bank is
entitled to issue any notice of termination of
employment.
[18]
The court has a broad discretion to make orders for costs according
to the requirements of the
law and fairness (see s 162). The court
must necessarily take into account that the applicant has, in part at
least, succeeded
in establishing procedural unfairness. Further, the
bank was forewarned before any notice of termination of employment
was issued
that the union regarded s 189 (3) as peremptory, and that
it insisted that notice was given. Finally, as I have observed, the
bank
has yet to proffer an explanation for its election to ignore the
applicable statutory precepts when embarking on the restructuring

exercise. For these reasons, costs ought properly to follow the
result.
I make the following
order:
1.
The respondent’s failure to issue a
notice in terms of s 189 (3) constitutes procedural unfairness.
2.
The applicant’s notice of termination
of employment, given on 3 October 2019, is set aside.
3.
The respondent is directed, should it wish
to proceed with a consultation process in respect of any dismissal
for operational requirements
in its client support division, to issue
a notice in terms of s 189(3) and to comply with the applicable
provisions of s 189 and
s 189A.
4.
The respondent is ordered to pay the costs
of these proceedings.
André van Niekerk
Judge
APPEARANCES
For the applicant: Adv. C
Goosen, instructed by BJ Erasmus Pieterse Attorneys
For the respondent: Adv.
H Nieuwoudt, instructed by Norton Rose Inc.