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[2020] ZALCJHB 56
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South African Communication Union and Another v Telkom SA SOC Ltd (J203/2020) [2020] ZALCJHB 56; (2020) 41 ILJ 1425 (LC) (5 March 2020)
THE
LABOUR COURT OF SOUTH AFRICA, HELD AT JOHANNESBURG
Of
interest to other Judges
case no: j203/2020
In
the matter between:
South
African Communication Union
First
Applicant
Communication
workers union
Second
Applicant
and
Telkom
SA SOC Ltd
First
Respondent
Abdul
Carrim Osman
n.o.
Second
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION & ARBITRATION
Third
Respondent
National
Union of Metalworkers of South Africa
Fourth
Respondent
Solidarity
Fifth
Respondent
Information
Communication Technology Union
Sixth
Respondent
Heard
:
26 February 2020
Delivered
:
5 March 2020
Summary:
(S 189A(13) interdict – no material failure to comply with a
fair procedure by the employer –
impasse a result of unions’
pre-conditions for consultation on VSPs – application
dismissed)
JUDGMENT
LAGRANGE
J
Background
[1]
This is an application brought under section 189A [13]. The applicant
unions, SACU and CWU
[referred to jointly as ‘the Alliance’],
seek the following specific relief on an urgent basis:
Directing
the first respondent [’Telkom’] to:
1. Withdraw the
notice issued on 13 February 2020 in which it opened applications for
voluntary severance packages and voluntary
early retirement packages
and to withdraw the letter sent to employees on or about the same
date offering these packages to its
employees;
2. Engage in further
consultations with the Alliance and any minority union that may wish
to so consult in respect of:
2.1.
the content of the proposed voluntary severance packages and
voluntary early retirement packages;
2.2.
who shall qualify for the post voluntary severance packages and
voluntary early retirement packages;
2.3.
When the proposed voluntary severance packages and voluntary early
retirement packages shall
be offered;
2.4.
what the retrenchment package would be should retrenchment be
unavoidable;
3. Continue with such
consultations until such time as the second respondent [the
facilitator] claims that it is no longer possible
to reach a possible
consensus on these issues were until consensus is achieved, whether
or not this requires further consultations
than those required in the
facilitation directive of the Commission for Conciliation Mediation
and Arbitration;
4. refrain from
consulting directly with members of the Alliance.
5. Further and/or
alternative relief.
[2]
Pending judgment being handed down on 4 March 2020, Telkom agreed
that the period for applying
for voluntary separation packages will
be extended to the close of business on 6 March 2020. Owing to an
oversight by the court
as to the intended date of judgment the
judgment was handed down on 5 March 2020.
Background
[3]
CWU and SACU jointly represent the majority of Telkom’s
workforce. The fourth fifth
and sixth respondent’s, NUMSA,
Solidarity and ICTU are minority unions.
[4]
Telkom gave notice of possible retrenchments to the unions, excluding
NUMSA, on 15 January
2020. It anticipated retrenchments taking place
in two phases, Phase 1 relating to Openserve (including IT) and
Consumer between
January and April 2020 and Phase 2 relating to
Telkom Corporate Centre from May to August 2020. The scale of the
anticipated number
of retrenchments is significant, amounting to
3,000 employees out of Telkom’s workforce of approximately
9,500 employees.
The cause of the planned downscaling is attributed
to declining performance in the fixed voice market, fixed data and
other operational
inefficiencies. Under the heading of alternatives
to retrenchment, Telkom mentioned steps it had taken in the past
couple of years
to improve its financial performance, including
voluntary severance and early retirement options for employees as a
means to reduce
headcount and costs. In the notice letter, Telkom
stated:
“
As part of the
consultation process, Telkom is willing to once again consider
voluntary severance and early retirement packages
for employees
affected by Phase 1. A formal proposal in this regard will be tabled
first consultation meeting.”
[5]
The notice also stated that Telkom would consult with all unions
jointly in a single consultation
forum and proposed a first
consultation meeting on 22 January 2020. It further confirmed that it
had made a request to the CCMA
to point a facilitator in terms of
section 189A [3].
[6]
The consultation meetings between the parties on 22 January and 5
February 2020 prior to
the facilitation meeting of 12 February 2020
are not canvassed in much detail in the pleadings. From the little
that can be gleaned,
Telkom made a presentation on the rationale for
the proposed retrenchments based on the notice at the first meeting
on 22 January
and provided the unions with a deck of documents, which
it claims included a detailed proposal relating to voluntary
separation
packages, which include both voluntary severance packages
(VSPs) and voluntary early retirement packages (VERPs). The Alliance
disputes that any detailed VSP/VERP proposal was included in the
documents, and notes that Telkom did not annex such to its answering
affidavit.
[7]
Nonetheless, in a letter dated 29 January 2020, which also included
proposals on alternatives
to retrenchment and requests for further
information, SACU did respond forthrightly to whatever Telkom had
tabled on voluntary
severance packages:
“
Proposed
Voluntary Severance Package
Referencing the voluntary
severance package in the slide presentation provided, we hereby place
the following on record:
·
It is opportunistic of Telkom to have two separation packages. This
serves
as an alarming and stark indication company has no intention
of respecting the process of
bona fide
engagement with
organized labour-it serves as a pathogen that inhibits consultation
in the true spirit of the LRA.
·
Our representation on the package remains and we await proper
engagement
thereon.
·
It is further our position that the voluntary separation packages
can only be used as an alternative after the proposed structure
have
been fully populated with adequate ventilation
.”
(Emphasis added)
The reference to two
packages appears to have been a reference to the proposed ordinary
retrenchment package and the voluntary separation
package.
[8]
Telkom interpreted the letter as being the first sign that the
Alliance intended delaying
the consultation process because it
requested further information despite what Telkom had provided to the
unions prior to and at
their first meeting. Telkom did not claim that
the information was actually covered by presentation or not, so it is
difficult
to evaluate its contention that the request for further
information was purely dilatory. The Alliance points out that it is
entitled
to relevant information and that the employer is obliged, if
it rejects any written representations made the union to also state
its reasons in writing.
[9]
At the first facilitation meeting on 5 February 2020, the Alliance
complained about the
participation of the minority unions in the
consultation process. It is not disputed that the whole day was
consumed with this
debate, though the Alliance claims it was a
necessary debate. Eventually, Telkom agreed that consultation would
be conducted separately
but in parallel with the minority unions,
despite its initial desire to conduct consultations jointly. This
bifurcation of the
consultation process predictably complicated
matters later on.
[10]
Consultation meetings were then scheduled with the minority unions
and the Alliance on 11 and 12 February
2020, respectively.
[11]
At the meeting with the minority unions the day before meeting with
the Alliance, the minority unions indicated
that they had no
objection to Telkom allowing employees to apply for voluntary
separation packages.
[12]
When the meeting with the Alliance began on 12 February 2020, the
facilitator clearly expected the meeting
to start by addressing the
unions’ response to Telkom’s rationale for the proposed
retrenchments. However, CWU first
raised a complaint about the fact
that the minority unions had attended a facilitation meeting the day
before and were already
reporting back to employees about that
meeting. The Alliance felt that this undermined their position as
majority unions and insisted
that in future consultations with the
Alliance should proceed any consultation with the minority unions.
The facilitator defended
the process on the basis that it was
inevitable that there would be separate timetables for facilitation
now that the consultation
process had been divided, and that the
issue of which parties should meet first had not been raised prior to
this meeting.
[13]
After the debate about this issue and communications to union members
was discussed, the employer’s
representative asked if the
meeting could proceed to deal with clarifying questions and also
VSP/VERPs. He claimed that employees,
including members of the
Alliance unions, were pestering the company about “…where
we are going with the VSP/VERPs.”
He then stated that it was
Telkom’s intention to table the issue that it was going to be
“opening VSP/VERPs.”
He emphasized that it was important
for the parties to make sure that people made an informed decision
and further committed the
company to make a presentation on the
proposed structures even before a workshop scheduled for 19 February
to deal with that issue.
[14]
SACU’s representative, while agreeing that the new structure
was needed to be presented ‘on the
record’ before they
went to a workshop, expressed the unions’ view that the company
was attempting to circumvent the
way in which the parties were
obliged to engage with each other in terms of section 189. He
contended that the issue of VSP’s
could not be raised at this
juncture as the order of consultations is determined by section 189
[3], which states:
“
(3)
The employer must issue a written notice inviting the other
consulting
party to consult with it and disclose in writing all
relevant information, including, but not limited to-
(a)
the reasons for the proposed dismissals;
(b)
the alternatives that the employer considered before proposing the
dismissals, and the reasons for rejecting each of those alternatives;
(c)
the number of employees likely to be affected and the job categories
in which they are employed;
(d)
the proposed method for selecting which employees to dismiss;
(e)
the time when, or the period during which, the dismissals are likely
to take effect;
(f)
the severance pay proposed;
(g)
any assistance that the employer proposes to offer to the employees
likely to be dismissed;
(h)
the possibility of the future re-employment of the employees
who are
dismissed;
(i) the number of
employees employed by the employer; and
(j) the number of
employees that the employer has dismissed for reasons based on its
operation requirements in the preceding
12 months.”
According
to this interpretation the parties could not be discussing severance
pay issues which fell under sub-paragraph (f) when
they had not
concluded discussions on the preceding items.
[15]
The facilitator conveyed his understanding of the stage reached in
the process namely that while Telkom was
indicating that it wanted to
advertise VSP’s very soon it was willing to deal with the
proposed structures with the Alliance
the following day before
addressing those with the minority unions. He then characterized the
difference between the parties on
the issue of VSP’s being that
the Alliance was of the view that it could only be dealt with after
dealing with the rationale
for retrenchments whereas Telkom believed
discussions could take place in parallel. He acknowledged that the
matter might end in
a legal dispute but proposed that the parties
should first discuss structures, which is what he understood Telkom
wanted to do.
[16]
SACU motivated its reason for opposing the opening of VSPs on the
basis that before employees knew what the
new structure was they had
no idea whether or not they would be accommodated in it, which made
it difficult to know whether to
apply for a VSP or not. Further, it
is representative made the point that Telkom had decided to raise
VSP’s as part of the
issues under consultation instead of just
advertising VSP applications before the consultation. Having chosen
to include VSPs in
the consultation process, Telkom ought to accept
the sequence of discussion on the basis of the order of topics in
section 189
[3].
[17]
After an adjournment to permit both sides in the consultation to
consider the respective positions on the
issue of communications to
employees and VSP’s, Telkom confirmed its view that after doing
a presentation on structures,
VSP applications could be opened and
provided on the understanding that the application process would not
be closed before the
discussion on new structures had been conducted.
It was not in favour of withdrawing the section 189 notice and
advertising VSP’s
after which the 189 process would be
restarted, which was one idea floated by the Alliance. The
spokesperson emphasized that in
Telkom’s view the whole purpose
of offering VSP’s was to minimize or avoid retrenchment even
before discussion took
place on the items mentioned in S189(3) (a) to
(j). He also emphasized that during the prior meeting with the
minority unions,
even though the issue of opening VSPs was raised,
there was no discussion of dates and no discussion of structures was
held because
that had not yet been discussed with the Alliance.
[18]
Following this response, the Alliance requested a further caucus. On
returning, apart from reiterating concerns
about communications with
employees about the consultation process and the role of the minority
unions in that regard, the CWU
spokesperson explained their
opposition to opening VSP applications at that point. The concern
expressed was that if VSPs were
opened for applications, it was
possible that even a large number of persons who might not ultimately
be affected by the restructuring
would unwittingly apply for a VSP.
He questioned how Telkom could be so sure that if the VSP process was
not opened up it would
not reduce the impact of retrenchments, when
the parties had not even finished consulting on the rationale, which
was what the
Alliance understood was going to be the purpose of that
meeting. Yet now the company was talking about VSP’s already.
[19]
Management responded that it agreed that questions of clarity what
had been expected from the unions but
none had been received and that
management’s understanding was that this was where the meeting
or to have begun in the morning
and they could then have proceeded to
discuss structures in the afternoon.
[20]
The Commissioner noted that at the previous meeting when it adjourned
there had been no agreement that questions
of clarity would be
provided by the union in advance of the meeting. He also confirmed
that at the previous meeting when VSPs had
been discussed the
Alliance had indicated they did not want to pursue that issue until
the structure had been dealt with. The same
issue had arisen during
the meeting with minority unions and after initially resisting the
idea they indicated they would be prepared
to have a discussion about
VSP’s on 13 February, following the consultation meeting with
the Alliance on 12 February. As
he understood it management was
intent on discussing the structure because they did not want to open
VSP’s without doing
so.
[21]
The SACU representative expressed the view that it seemed as if
Telkom was not meaningfully engaging with
them with a view to
reaching consensus but simply ticking consultation boxes. The unions
wanted an opportunity to interrogate the
rationale and to propose
their own alternatives. For example, the unions had raised the issue
of re-skilling as an alternative
but Telkom had never responded to
this. It was also impossible for the union to engage in a parallel
process of dealing with the
business rationale on the one hand and
VSP’s on the other. He asked whether management still intended
to proceed with VSP’s.
The facilitator and the Telkom
spokesperson confirmed that the discussion on the rationale for
retrenchment was still on the table.
[22]
Management made the point that it had raised the issue of VSP’s
at the meeting on 5 February and a
SACU spokesperson confirmed this
was correct but added that the unions had already responded at that
stage saying that the whole
process would be jeopardised if the issue
of VSPs was opened up.
[23]
As the meeting progressed the impasse between the parties
crystallised more clearly into a dispute about
whether management was
going to accede to the unions’ demand that Telkom would take
discussion of VSPs off the table until
the parties got to the stage
of considering alternatives. Management appealed to the unions that
it was an issue it had put up
for discussion as an alternative and
wanted to discuss it and finalise it because if there was a good
response it would reduce
the number of potential retrenchments. The
spokesperson was unable to finish what he was saying about the way
forward on the issue
because of interjections by union
representatives who ignored the facilitators request to let him
finish speaking. The facilitator
summed up the situation as he saw it
at that point:
“
So, the way I
understand the way forward is at the end of the day there is no
agreement reached here. Intention is try and reach
an agreement and
the agreement was from labour’s perspective, employer, hold
back the SPV’s. And employer is saying,
from their side they’re
saying to labour, engage us on this thing before we send it out.
Engage us on the structure and engages
on the type of package that
has to go out. Now, that has been rejected. You’re saying, we
cannot engage you on that until
you finish rationale. So, the way I
understand the process straightforward and, really, if the way I
understand that is that the
parties need to now take their legal
positions and go forward in that regard. Nothing really stops us from
saying, okay, let’s
continue on the rationale issue. But there
is no agreement in place as what is going to happen with the VSP.
Now, the employer
has indicated that going to go ahead with it. So,
you know that. If your response is that, we could not convince you,
but we intend
to challenge that, then you must indicate that. But if
your indication is, fine, do as you please. We will deal with that
but in
the meantime let us proceed with the rationale, then we can
proceed with the rationale. That’s my view. I’m not even
saying. I am saying we should continue. But I heard the GS say
earlier that if we can’t reach agreement on this thing we
can’t
proceed with the rationale. So, that’s where I have a
difference. I believe you can still proceed with the rationale,
but
understand that if this VSP package goes out tomorrow, it doesn’t
stop the process. The processes can still continue
in terms of that
way forward.” (
sic
)
[24]
The union spokespersons insisted that the issue of VSP’s
was something that should come at the
end of the process and likened
Telkom’s approach to first skinning a goat and then
slaughtering it rather than the other
way around. At that point, the
union confirmed that it was in a deadlock with the employer and it
would refer the matter to court.
The following day, Telkom opened up
the process of accepting applications for voluntary packages to all
affected employees within
the open serve and consumer divisions, with
the closing date for submitting applications being a week later on 21
February 2020.
[25]
By the deadline 1585 employees had applied for voluntary packages and
in the answering affidavit Telkom indicated
that employees would be
informed of the outcome of the applications by 25 February 2020. Of
the applications received 57% in both
divisions were from members of
the Alliance unions and 73% of those who applied were applying for
voluntary early retirement packages,
which are available to employees
above the age of 55. Telkom argued that it would be unfair to delay
the processing of these applications
pending the outcome of this
application, but it had agreed to extend the closing date for
applications to 28 February 2020.
Evaluation
[26]
Although
Telkom argues that the matter is not urgent, it is generally accepted
that it is in the nature of applications section
189A [13] when they
seek to try and rectify serious flaws in the consultation process
while it is still underway that they are
heard on an expedited
basis.
[1]
Legal principles
[27]
The court is being asked to intervene under the provisions of s
189A(13)(a), which states
“
189(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;…”
[28]
In
Edcon v Steenkamp
the Labour Appeal Court characterised the
purpose of section 189A(13) thus:
“
[25] In summary,
section 189A(13) is
a procedure designed to enable the
Labour Court to urgently intervene in a large-scale retrenchment to
ensure that fair procedure
is followed. It is not designed to offer a
platform for
ex post de facto
adjudication of
unfair procedure disputes
. Although a failure to comply with the
30-day period can be condoned, the merits of any condonation
application must be understood
within the context of an urgent
intervention, that being the critical functional characteristic of an
application in terms of section
189A(13).
[26] Moreover, the
intervention contemplated, by its nature does not contemplate a trial
at some future remote time. It exists not
to facilitate a post mortem
but, rather,
to oversee the process of retrenchment while it is
taking place or shortly thereafter where precipitate dismissals make
intervention
before actual dismissal impossible, and to reverse the
dismissals.
”
(emphasis
added)
[29]
In
National
Union of Metalworkers of South Africa (NUMSA) obo Members v Toyota
South Africa Motors (Pty) Ltd
[2]
Cele J held:
“
The section 189A
(13) remedy was clearly designed to correct a derailment of
consultations in a consensus seeking process prescribed
by
SectionSACU89 and 189A of the Act.”
[3]
[30]
Lastly, in
RAWUSA v
Schuurman Metal Pressing (Pty) Ltd
[4]
,
Murphy AJ, as he then was, held:
“
[32]…(T)he
aim of section 189A(13) (Act 66 of 1995) is to provide a remedy to
employees to approach the Labour Court to set
their employer on the
right track
where there is a genuine and clear cut procedural
unfairness which goes to the core of the process
. The section is
aimed at securing the process in the interests of a fair outcome. It
follows that not every minor transgression
of a procedural nature
will invite the benefit of the court’s discretionary power to
grant a remedy. To hold otherwise would
be to open the door to
excessive litigation, abuse and unnecessary delay in the process of
consultation.
Section 189A(13) is aimed at unjustifiable
intransigence, it is not available as a tool to thwart a retrenchment
process where the
process, as in the present case, is otherwise
capable of being rescued by genuine efforts to cure such flaws as may
exist
.”
[31]
Various
dicta
of the labour court have also elaborated on the extent and manner in
which the court might intervene in procedurally unfair retrenchment
processes. In
AMCU
and others v Sibanye Gold Ltd t/a Sibanye Stillwater
and
others
[5]
Van Niekerk J stated that there were limits on the extent to which
the court should intervene under SACU89A(13):
“
[15] The preamble
to section 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 section 191,
is to extend to this Court a real-time supervisory role over the
consultation process, with powers to intervene if and when necessary,
and to craft a remedy designed to address any procedural shortcoming
that is 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
.”
(emphasis
added)
[32]
In
SASBO
v Standard Bank of South Africa
[6]
this court emphasised the importance of orders made under the section
not being cast in wide terms:
“
[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.”
Should the court
intervene on this occasion?
[33]
Bearing the above considerations in mind, the crisp question is:
should the court intervene in the type of
impasse reached between the
parties in this process? Essentially, before the court can intervene
it must be satisfied that the
employer party has acted in such a way
that it has fundamentally prevented or obstructed a fair consultation
process in keeping
with the intentions of section 189.
[34]
The reason for the impasse is that the Alliance was not prepared to
engage in discussions about the use and
content of voluntary
separation packages at such an early stage of the consultation
process. In the unions’ view, the provisions
of section 189 [3]
do not merely list items that the parties should consult on with a
view to reaching consensus but also sets
out the sequence in which
such discussions should take place. Further, without having concluded
discussions on the rationale for
retrenching it would be premature to
discuss alternatives. The logic of this argument is that if the
rationale is found wanting
then the need for retrenchment would not
exist, and there would be no need to discuss alternatives to
retrenchment. In addition,
the unions argue that offering voluntary
severance packages before employees know what the proposed structure
is so they can take
a view on whether they would probably be
accommodated in it, means that any decision they make to apply for a
voluntary severance
package would only be a partially informed
decision based solely on weighing up the benefit of a more generous
voluntary severance
package against the standard retrenchment
package, without knowing the likelihood of whether or not they would
be selected for
forced retrenchment.
[35]
Telkom for its part was prepared to continue to discuss the rationale
for the retrenchment’s and to
explain the proposed new
structure, which would then be populated by employees eligible for
those positions and subject to other
criteria. However, it also
wanted to put VSP’s on the table for consultation at the same
time. In essence, Telkom contended
that because of the significant
impact that voluntary terminations could have on the ultimate need
for any forced retrenchment’s,
it made good sense to deal with
this at the start of the process to reduce the scale of the potential
retrenchments. Although it
was clearly anxious to initiate a
voluntary severance process as soon as possible, it was willing to
consult over it. What the
2 sides could not agree on was when
consultation on VSP’s should take place.
[36]
As the facilitator observed at the conclusion of the meeting on 12
February, even though the Alliance was
supposed to consulting on
VSP’s at that stage of the process, it did not mean that the
consultation process had to come to
a halt: discussions could still
continue on the rationale and structure.
[37]
What needs to be considered is whether the sequence of items for
consultation set out in section 189 [3]
also dictates that discussion
of successive items in the list should not be embarked on until
consensus or impasse is reached on
the previous items, and that a
failure to follow such a sequence renders the consultation process
unfair. Having regard to subsectionSACU89
[3] [a]-[j], I am not
persuaded that they prescribe a rigid sequence in which consultations
can only proceed on a step-by-step
basis. The first point to make is
that the provisions of section 189 [3] cannot be read in isolation
from section 189 [2], which
sets out the primary obligations of both
parties to the consultation process:
“
189 (2) The
employer and the other consulting parties must, in the consultation
envisaged by subsections (1) and (3), engage
in a meaningful joint
consensus-seeking process and attempt to reach consensus on -
(a)
appropriate measures-
(i)
to avoid the dismissals;
(ii)
to minimise the number of dismissals;
(iii)
to change the timing of the dismissals; and
(iv)
to mitigate the adverse effects of the dismissals;
(b)
the method for selecting the employees to be dismissed; and
(c)
the severance pay for dismissed employees.”
[38]
What is readily apparent from the section is the emphasis on the
search for alternatives as an important
objective for the parties to
attempt to reach agreement on. Obviously, voluntary severance
packages, however distasteful aspects
of such schemes might be, are
one of the ways of reducing the ultimate number of forced
retrenchments which might eventuate. Even
though there might be
rational arguments for delaying the offer of voluntary severance
packages that does not mean that a party
should refuse to discuss
them altogether unless its proposal on the timing of such offers is
accepted. The timing of offering voluntary
severance packages is
something to be discussed together with the terms and conditions of
such offers. It is not insignificant
that, before the deadlock was
declared by the Alliance, the unions did not propose that the parties
should consult on voluntary
severance packages as an alternative to
retrenchment including the timing of such packages. Instead, they
sought to embargo any
discussion of VSP’s until consultations
on the rationale and structure had been concluded or exhausted.
[39]
It is true that there is a logic to deliberating on the rationale for
retrenchments first in order to understand
what measures might be
adopted as partial or complete alternatives to attain the same
operational objective. However, a failure
to agree on that issue,
does not mean the process must grind to a halt. It is noteworthy in
this regard that section 189(2) does
not impose an obligation on the
parties to attempt to reach consensus on the reason or need for
retrenchment. It is true that section
189 [5] requires an employer to
allow its employee counterpart 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” and an
employer is required to respond
to any representations on these
issues, and if it does not accept them explain why it disagrees with
the representation. However,
that is as far as the obligation to
debate the rationale for the retrenchment goes. Of course if the
rationale is murky and the
scope and scale of the proposed
retrenchments cannot be easily explained by the reasons advanced for
the retrenchment those might
be factors bearing on the substantive
fairness of the dismissal. Unions always have the option of
challenging the substantive fairness
of the retrenchment which lacks
an operational rationale.
[40]
By contrast, the obligation on the parties to consult over
alternatives to retrenchment is unambiguous. Even
if a party has
reservations about whether there is a need for retrenchment, it must
be prepared to engage in consultations on alternatives.
Nothing
prevents a party from engaging on a provisional basis, by making it
clear upfront that its consent to the adoption of certain
alternative
measures is subject to it being persuaded that retrenchments would
otherwise be required.
[41]
I accept that Telkom was anxious to open the process of offering
voluntary severance packages and that once
the union made its
intention clear that it was going to court about the issue, it
decided to proceed in any event. Although the
relief sought by the
applicant unions seeks to reverse this process, it is important to
emphasise that the Alliance declared a
deadlock over the very timing
of consultation on VSP’s at a point when Telkom wanted to
consult on that issue together with
consultations on the rationale
and proposed new business structure. Telkom only proceeded to open
the voluntary severance process
after the unions had rejected holding
consultations on VSPs until other issues had been exhausted.
[42]
In the light of the discussion above, I am not satisfied that it can
be said that Telkom was the stumbling
block to consultations
proceeding. The stumbling block was erected by the Alliance when it
set preconditions for consulting over
VSP’s. It is regrettable
that this matter has come to court. With a bit of imagination and
mutual commitment to engagement,
despite their differences over VSPs,
I believe the parties could have had a constructive engagement on the
use, content and timing
of VSP’s, which might have resulted in
a consensus on the issue. There is also nothing to prevent the
parties still consulting
on whether the period for applying for VSPs
should be extended further.
Costs
[43]
The parties are still in the process of consultation and I believe a
cost award arising from this application
might unnecessarily sour the
already somewhat frayed relationship between them.
Order
[1]
The application is dismissed.
[2]
No order is made as to costs.
[3]
_______________________
R
G Lagrange
Judge
of the Labour Court of South Africa
APPEARANCES
For
the Applicants:
M
Lennox instructed by Boutoulas Krause & Da Silva Inc.
For
the Respondent:
P
Maserumule of Puke Maserumule Attorneys
[1]
See
e.g
Banks
v Coca-Cola SA
[2007]
10 BLLR 929
(LC) par 6
[2]
(2017) 38 ILJ 1162 (LC)
[3]
At
par [25]
[4]
[2005] 1 BLLR 78
(LC)
[5]
[2019] 8 BLLR 802 (LC)
[6]
(2011) 32 ILJ 1236 (LC)