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[2020] ZALCJHB 92
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Food and Allied Workers Union (FAWU) v South African Breweries (Pty) Ltd (SAB) and Another (J435/20) [2020] ZALCJHB 92; (2020) 41 ILJ 2652 (LC) (28 May 2020)
In
the Labour Court of South Africa, JOHANNESBURG
Reportable
case
no:
J
435/20
In
the matter between:
FOOD
AND ALLIED WORKERS UNION (FAWU)
Applicant
and
SOUTH
AFRICAN BREWERIES (PTY) LTD (SAB)
First
Respondent
SOLIDARITY
Second Respondent
Heard
:
20 May 2020 (Due to Covid-19 lockdown, this
matter was heard
via
video conferencing and both parties agreed to this arrangement)
Delivered
:
28 May 2020 (Due to Covid-19 lockdown this
judgment was delivered by emailing a copy to the parties and 28
th
May 2020 is deemed to be a delivery date)
Summary:
Section 189A (13) of the LRA application –
where an employer offers to consult in a particular manner and the
other consulting
party refuses to consult in the proposed manner,
completion of the process without the other consulting party does not
amount to
procedural unfairness. The power of the Labour Court is to
judicially manage the process and not to dictate to the consulting
parties.
In the absence of identifiable procedural unfairness, this
Court has no powers to intervene in the consultation process. Held:
(1) The application is dismissed. (2) No order as to costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
The irony that belies this matter is that
the applicant complains about the efficacy and reliability of the
zoom application (a
video conferencing application) as a proposed
medium to complete the already commenced facilitated section 189A
consultation process,
yet the urgent application was moved through
the same application. The question that arises in this matter is
whether conducting
section 189 consultation process through zoom
application is acceptable or not and if unacceptable, is a
continuation of a
section 189 consultation using the
application amounting to a procedural unfairness. With the advent of
the outbreak of the Covid-19
pandemic, the “
new
normal”
presented itself. A
number of restrictions were put in place by the government of the day
with the sole purpose to “
flatten
the curve
” of the infection rate.
These restrictions adversely affected the way things were normally
done. This period, the Covid-19
outbreak, witnessed a barrage of
litigation in our Courts.
[2]
To state the obvious, this application is
one of the offspring of the period. In this application, the
applicant seeks, amongst
others a relief couched in the following
manner:
“
2.
Declaring that the consultation process by the first respondent on or
about 31 January
2020 in terms of
section 189A
of the
Labour
Relations Act No 66 of 1995
was not
procedurally fair;
3.
Interdicting and restraining the first respondent from:
3.1
continuing with the consultation process it commenced on or about 31
January 2020 in terms
of
section 189A
of the LRA without –
3.1.1
further facilitation by the CCMA;
3.1.2
without the
physical attendance
of the applicant’s
representatives in such facilitated consultation process; and/or
3.2
implementing or giving effect to the notices of termination issued to
their members of the
applicant between 25 April 2020 and 30 April
2020; and
3.3
issuing or implementing any further notices of termination of
employment due to the operational
requirements of the first
respondent, until first respondent has complied with the obligation
to follow a fair consultation process;
4.
compelling the first respondent to comply with a fair procedure as
contemplated
in
section 189
and
189A
of the LRA;
5.
directing the first respondent to reinstate dismissed employees until
it has
complied with a fair procedure; alternatively
6.
granting the appropriate compensation.”
[3]
The relief sought is opposed by the South
African Breweries (Pty) Ltd (SAB). In opposing the relief sought, the
SAB contended that
there was a material non-joinder of the Employee
Representatives (ER), one of the consulting parties. Further, it was
contended
that the application is not urgent on the basis that the
applicant delayed in approaching this Court for a relief. Given the
view
I take at the end of this judgment, it shall be academic to
pronounce on these preliminary points. I had informed the parties
that
a separate ruling on them was unnecessary, at the time they were
raised, because the view I took at the time was that factually,
the
points were inextricably intertwined with the merits of this
application. On proper reflection of the matter, I arrived at
a
conclusion that they do not merit any further consideration.
Background
facts pertinent to this judgment
[4]
Papers relevant to this matter ran into
thousands of pages. The majority of which related to the facilitated
consultation process
that commenced in January 2020. During argument,
the applicant’s counsel succinctly highlighted the procedural
concerns relevant
to the present dispute. Such necessitates a
recount, in this judgment, of only the pertinent facts surrounding
the procedural concerns.
Upfront, those concerns may be summarised as
follows: (a) the issue of the number of the affected employees, which
in the submission
of the applicant’s counsel affects the timing
of the dismissals; (b) the acceptance of the organogram and its
population;
and (c) the continuation of the facilitated consultation
using zoom application.
[5]
Briefly, in and around January 2020, the
SAB found the need to restructure its business operations. That
prompted it to contemplate
dismissal based on operational
requirements. A
section 189
(3) notice was then issued. Given the
number of affected employees, the SAB requested facilitation of the
consultation process.
A facilitator was appointed. The said
facilitator facilitated few meetings without any hindrance barring
jurisdictional challenges,
which the facilitator ruled on.
[6]
Following the declaration of the state of
disaster by the President of the country, certain restrictive
measures were pronounced,
which measures hindered the smooth running
of the facilitated consultation process. Such prompted the Commission
for Conciliation,
Mediation and Arbitration (CCMA) to propose methods
by which the facilitated process may continue. One of the proposed
methods
was the usage of the zoom application. This process of
proposing a method saw umbrage being taken by FAWU and culminated in
the
facilitator recusing himself from the process and a new
facilitator being ushered. At the time of the announcement of the
restrictive
measures and the subsequent national lockdown, parties
had agreed on a timetable. One of the facilitated meetings was
scheduled
to happen on or about 25 March 2020. This scheduled meeting
ultimately became the “
straw that
broke the camel’s back
”.
[7]
Proposals were
inter
alia
that the scheduled meeting take
place through the zoom application or that the process be canned
until the restrictions are removed.
The applicant, for what appears
to be incontrovertible, opted for the proposal of canning the process
until the end of the lockdown
period. Due to that impasse, the
applicant did not participate any further. As a result, the present
application was conceived.
Correspondence were exchanged in
February/March reflecting that there was a need to consult further on
the organogram that was
proposed by the SAB. In the course of the
consultation process, the SAB began to populate the structure and
employees were requested
to express interests. There is a dispute
between the parties as to whether the population of the structure is
the product of the
consultation process. It is common cause that when
the SAB requested facilitation, it stated in the request form that
the affected
employees were about 500. It is further common cause
that the number doubled in the early stages of the process.
[8]
This application was launched on or about 8
May 2020. As pointed out above it is opposed by the SAB. Solidarity,
though cited as
a party chose not to enter the fray. There are
certain allegations made in this matter which are attributed to it.
However given
my view at the end, nothing much turns on those
allegations.
Evaluation
[9]
At
the centre of this dispute lies the question whether there was any
procedural unfairness. Both counsel submitted that on the
question
whether there is procedural fairness on not, this Court must pass a
value judgment. I do not necessarily agree. The basis
of my
disagreement would become apparent in the course of this judgment. I
tend to agree that when dealing with the elastic concept
of fairness
itself, a value judgment may be called into action. However, when it
comes to a particular type of fairness, like procedural
fairness,
regard must be had to the provisions of the Labour Relations Act
[1]
(LRA).
[10]
The LRA does not afford the phrase
procedural fairness a specific meaning. To that end, section 188 (2)
dictates that any person
considering whether or not dismissal was
effected in accordance with a fair procedure, is obligated to take
into account any relevant
code of good practice issued in terms of
the LRA. This implies that this Court in determining that question
must seek refuge from
the code of good practice.
[11]
A code of good practice on operational
requirements was issued. The code does not do much more other than
referring back to the
provisions of section 189 of the LRA. A
conclusion to be arrived at is that any process that complies with
section 189 and section
189A of the LRA is bound to be procedurally
fair. The code suggests that a consultation would be regarded as
proper, if an opportunity
to meet and report back to employees is
provided; the opportunity to meet with the employer is provided and
the request, receipt
of information and consideration thereof is
provided.
[12]
On
the other hand section 189 of the LRA, first requires contemplation
and thereafter an obligation to consult. The section directs
what
must happen in the consultation process. In subsection 189 (2), the
consulting parties are obliged to engage in a meaningful
joint
consensus seeking process, which is aimed at reaching consensus on
appropriate measures listed; the method of selecting the
employees to
be dismissed and the severance pay. Therefore, a consultation would
be compliant when there is evidence of attempts
to reach consensus on
(a) the listed appropriate measures; (b) the method for selecting
employees and (c) the severance pay. In
a facilitated process, the
expectation is that a CCMA commissioner would guide and navigate the
parties through the consultation
process
[2]
.
In
Steenkamp
v Edcon Limited
[3]
,
Basson AJ, writing for the majority stated the law as follows:
“
Where
a retrenchment exercise involves a large number of employees, section
189A of the LRA applies. This section not only strives
to
enhance
the effectiveness
of the consultation
process
by providing for the appointment
of a facilitator
…”
(My
own emphasis)
[13]
It
is clear that where a facilitator is appointed the consultation
process is bound to be effective and enhanced. Ideally, this
Court
does not expect procedural lapses and/or complaints where a
facilitator is involved. The point I wish to put forward is that
in a
facilitated process, this Court expects less of section 189A (13)
applications due regard being had to the powers of the facilitator
and above all the expertise of the facilitator
[4]
[14]
Having considered the above statutory
framework, it is thus important to consider the applicant’s
procedural complaints. I
do so hereunder.
The
issue of the numbers
[15]
This Court fails to understand and
appreciate the nature of this complaint in the context of this
application. In the founding affidavit,
the case made with regard to
the numbers issue is as follows:
“
14.
SAB has embarked upon section 189 process in circumstances where it
contends that the operational
requirements dictate that the services
of a large number of employees be terminated.
Initial
notices indicated that about 500 employees would be affected, but
ultimately more than 1200 employees were affected.
(My
own emphasis)
[16]
It is unclear whether the applicant’s
complaint is that the section 189 (3) notice is defective and as such
procedural unfairness
happened. The applicant compares the initial
(500) and the ultimate (1200). Surprisingly, in the heads of argument
filed on behalf
of the applicant nothing is said to advance this
complaint. Not a single legal submission has been made in support of
that complaint.
In response to the allegation in the founding
affidavit, the SAB testified that the number 500 was referring to the
number of employees
it contemplated to retrench. This position was
laid bare in the consultation meeting of 24 February 2020. This
testimony remains
unchallenged in reply.
[17]
During oral submissions, the applicant’s
counsel sought to link the complaint to the issue of the timing of
the dismissals.
Still, this submission did not dictate logical sense
to me. However the LRA deals with the issue of the timing under
section 189
(2) (a) (iii). It provides for an attempt to reach
consensus on the appropriate measures to change the timing of the
dismissals.
The proposed timing of the dismissals in terms of the
retrenchment notice was 30 April 2020. If the applicant wished to
have that
timing changed, it would make such a proposal and the
consulting parties would attempt to reach consensus on the proposed
change.
The other way of looking at the numbers complaint is that the
applicant suggests that the SAB is withholding information with
regard
to the exact number of employees to be affected.
[18]
In terms of clause 5 (1) of the
facilitation regulations, a facilitator has powers if there is a
dispute about the disclosure of
information to after hearing
representations, make an order directing an employer to produce
documents that are relevant to the
facilitation. Therefore, a party
may not be heard in a section 189A (13) application complaining about
non-disclosure, if that
party has not exhausted the remedies
available for disclosure.
[19]
Section 189A (7) provides that if a
facilitator is appointed and sixty days lapses after the date on
which the retrenchment notice
was given, an employer may in its
discretion issue a termination notice. There is no dispute in this
matter that the contemplated
60 days has elapsed. Of course the legal
implications thereof is that the SAB may issue termination notices.
With the above statutory
obligation, this Court fails to appreciate
any procedural unfairness in this regard.
[20]
Section 189 (2)(c) obligates an employer to
disclose all the relevant information which should include the number
of employees likely
to be affected and the job categories in which
they are employed. Therefore, the issue of numbers fall under the
requirement to
disclose relevant information. In the retrenchment
notice, the likely number was disclosed. Thus,
prima
facie
, the SAB has complied with its
statutory obligation. Assuming that the applicant was not satisfied
with that disclosure, section
189 (4)(a) provides that the provisions
of section 16 of the LRA finds application with regard to the
disclosure. It is common
cause in this motion that the applicant did
not make use of the section 16 procedure. Accordingly, I arrive at a
conclusion that
no procedural irregularity has been shown to exist in
this regard.
The
issue of the organogram
[21]
The gripe of the applicant is that the
organogram was implemented without any agreement and or, as it is
being put during oral submissions,
consultation over the issue. It
does appear that the applicant’s case is that the population of
the structure amounted to
the selection criterion. When it comes to
selection criteria, the law obtains as follows. Section 189 (3) (d)
obliges an employer
to disclose in writing the proposed method for
selecting which employees to dismiss. With regard to that the SAB
stated as follows:
“
The
Company will first attempt to reach consensus with you on the
proposed changes. Depending on the progress made during the
consultations,
we may propose that affected employees apply for
vacancies that they are interested in, stating your preference per
position, if
any. However, affected employees should only apply for
vacancies where they meet the minimum requirements to do the job.
We
propose to select the best candidate for the job based on the job
profile; taking into account skills; historically agreed performance
ratings; qualifications and experience. We welcome any alternative
proposals from you”
(My
own emphasis)
[22]
On the basis of the above, the statutory
requirement was met. Further, section 189 (2) (b) requires the
consulting parties to engage
on the method for selecting the
employees to be dismissed. Lastly, section 189 (7) obligates an
employer to select employees to
be dismissed according to selection
criteria that have been agreed to by the consulting parties or if
none is agreed upon, criteria
that are fair and objective. Having
proposed a selection method, the SAB must strive, during a
consultation process, to reach an
agreement on the proposed method.
According to the SAB an agreement on the proposed method was reached.
The applicant disputes
that. The issue is not so much that the
criteria was agreed upon, but whether it was consulted upon.
Undisputed correspondence
reveals that after the consultation meeting
of 24 February 2020, on 25 February 2020, the SAB forwarded
consultation presentations
for Supply, Logistics, Sales and
Procurement.
[23]
On 5 March 2020, in a consultation meeting,
the SAB presented the broad proposed redeployment process, which
included the sharing
of the list of vacancies and new positions for
the impacted employees to apply in order to unlock the redeployment
opportunities
from 06 March 2020. Undisputed correspondences reveals
that on this proposed redeployment process – employees applying
for
positions as
per
the proposed selection criterion – the other consulting parties
stopped the population of the lists to enable them to consult
their
members first and they would revert by 11 March 2020. Following that
on 12 March 2020, the SAB populated the expression of
interest with
regard to the vacancies.
[24]
In most of the undisputed correspondences,
in the penultimate paragraphs the following is stated: “
we
are conscious of the fact that the proposed structures are still
subject of consultations
and does not in any way suggest that the structures have been
finalised
”. It is on this basis
that the applicant suggests that the issue of the organogram was not
finalised and as such there was
procedural unfairness. I shall return
to this point later in this judgment. The issue of a structure or
organogram is not a method
of selection. Even if the structure was
the method of selection, on the undisputed evidence, the proposed
structure was the subject
of consultation. Section 189 (2) does not
aim for an agreement. But if an agreement is reached, good for the
consulting parties.
Accordingly my conclusions are that no procedural
unfairness has been shown to exist on the issue of the organogram. I
agree with
Mr Van As, appearing for the SAB, that if the applicant
takes a view that the selection criteria ultimately employed was not
agreed
upon or is unfair and not objective, such is a matter of
substantive fairness and not procedure.
The
issue of the zoom application.
[25]
Elsewhere
in this judgment, I referred to this issue as the straw that broke
the camel’s back. I also stated that the outbreak
of Covid-19
ushered the
new
normal
.
Zoom as an application precedes the outbreak of Covid-19. It is just
that it was not conveniently used and if used it was used
in a
parsimonious fashion. The LRA does not prescribe the form which the
consultation process must assume. In section 189 one observes
traces
of a consultation by correspondence – section 189 (6) (b). It
would not be incongruous to conclude that a consultation
process may
fairly be undertaken through correspondence
[5]
.
The difficulty here is that normally, consultation takes a form of
physical meetings. However, when the
new
normal
presents itself, it does not follow that the commanded consultation
can no longer happen.
[26]
With the
new
normal
– lockdown period during
Covid-19 pandemic – zoom is the appropriate form in which
meetings can take place. What is
involved in this period is the
health and safety issue. Thus the usage of the zoom application is
not panoply. It is a necessary
tool to ensure that restrictions like
social distancing as a measure to avoid the spread of the virus are
observed. Much as the
applicant has its convenient preferences, those
preferences are self-serving and are ignorant of the bigger issue of
health and
safety. Therefore, in my view, there is nothing
procedurally unfair if a consulting party suggests the usage of the
zoom application
or some other form of video conferencing. This
accords with the
new normal
and is actually fair. The appointed facilitator, who possesses powers
to make a final and binding ruling on procedure was not averse
to the
zoom application. In an attempt to demonstrate the inefficacy and
unreliability of the zoom application, the applicant’s
counsel
pointed to an incident where Mr Van As’s screen hanged and his
connectivity to the proceedings was compromised as
one of the
difficulties that are raised by the applicant with the zoom
application. To that I say anywhere where technology is
employed,
even in a physical meetings, where a presentation to be made on a
projector fails, it is expected of teething problems
to emerge.
However such would not relegate the technology to obsoleteness to a
point of any form of unfairness. In my view, the
applicant’s
complaint of procedural unfairness in this regard is lacking in
merit.
Incomplete
consultation process
[27]
The
applicant placed a huge premium on the decision of
Aunde
South Africa (Pty) Ltd and Others v NUMSA
[6]
.
The applicant relies on what the Labour Appeal Court (LAC) said at
paragraph 40 of the judgment. What the applicant does not emphasise
is that there was a turn of events, which the LAC labelled a
“
dramatic
turn
”.
The dramatic turn that presented itself in that matter was when the
company refused to continue with a facilitated consultation
process
on the basis that a new staring was in town. Briefly the facts in
Aunde
were that during a facilitated consultation between the company and
NUMSA, a rather startling proposal was made by the company
to
terminate the services of the affected weekly paid employees and
re-hire them on minimum level rates of pay and conditions of
service
prescribed by the MIBCO Main Agreement.
[28]
To this proposal NUMSA stated that it was
an extraordinary and a drastic measures and it was opposed to it. Due
to the impasse on
that proposal, the consulting parties agreed to
shelve the issue until the facilitated retrenchment exercise is
finalised. UASA
was representing the interests of monthly paid
employees whilst NUMSA was representing the interest of weekly paid
employees during
the said facilitated process.
[29]
The consultation process continued as
agreed, and on 21 December 2009, Aunde concluded a recognition
agreement with UASA in terms
of which UASA became the sole bargaining
representative at the company. On 22 January 2009, UASA and the
company concluded an agreement
on the rejected proposal to terminate
and re-hire weekly paid employees. Owing to that and using section 23
(1) (d) of the LRA,
Aunde terminated the consultation process with
NUMSA. It took a view that it was no longer obligated to continue to
consult with
NUMSA. Therefore, the facts of
Aunde
are distinguishable to the facts obtaining in this matter. What was
said in paragraph 40 of the judgment does not apply in
casu
.
[30]
Having
stated the above, I return to that statement of the organogram not
being finalised. The principle in
Aunde
does not apply to that statement. What applies is what was said by
the LAC in
SAA
v Bogopa and others.
[7]
There, Zondo JP, (as he then was) formulated the law as follows:
“
[48]
…When an employer invites an employee or employees or his or
their trade union to consult and
the employee(s) or the trade union
either rejects or ignores such
invitation
, or
initially
participates but later abandons the process due to no fault
of the employer, the dismissal
cannot be
said to be procedurally unfair
, if the
employee is subsequently dismissed without consultation
or
without a completed consultation process
.”
[31]
In
casu
,
even if it can be said that consultation was not completed on the
issue of the structure, it is undisputed that parties were due
to
still consult on 25 March 2020. The applicant refused to participates
for reasons that I have already pronounced on earlier.
It is no fault
of the SAB that the applicant chose to abandon the process for
reasons of the usage of a fair application of zoom.
During the oral
submissions held on the relegated zoom application, SAB made a “
with
prejudice
” offer to continue to
consult with the applicant on the remaining topics for consultation
and such an offer was outrightly
rejected.
[32]
When the offer was made, I had pointed out
to the applicant’s counsel that I was willing to stand the
proceedings down to
enable her to obtain instructions on the offer.
To my utter amazement she instantaneously informed the Court that she
was instructed
to reject the offer. In
Bogopa
,
the affected employees refused an invitation to consult on the basis
that the employer had already placed them in a
fait
accompli
. Of course, this stance was
rejected by the LAC as demonstrated above. The procedure in section
189A (13) is there to ensure that
a fair consultation happens with a
view to ultimately preserve job security. A party would approach this
Court in the ask and quest
for a fair process, which ultimately
commands to the
audi alteram partem
principle. However, where a party in an open Court rejects an offer
to be consulted, such a party cannot lament about procedural
unfairness.
[33]
For all the above reasons, I am satisfied
that the applicant must be non-suited. The application must fail.
[34]
In the results, I make the following order:
Order
1.
The matter is heard as one of urgency.
2.
The application is dismissed.
3.
There is no order as to costs.
_______________________
G. N. Moshoana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Advocate M J Engelbrecht
SC.
Instructed
by:
Werksmans Inc, Sandton
For the 1
st
Respondent: Advocate M Van As
Instructed
by:
Bowman Gilfillan Inc, Sandton.
[1]
No
66 of 1995, as amended.
[2]
Section
189A (6) of the LRA empowers the Minister after consultation with
the
NEDLAC
and the Commission to make regulations relating to amongst others
powers and duties of facilitators. Chief amongst those powers
is the
powers to decide any issue of procedure that arises in the course of
meetings between the parties and a decision of a
facilitator in
respect of any matter concerning the procedure for conducting the
facilitation, including the date and time of
meetings, is final and
binding.
[3]
(2019)
40 ILJ 1731 (CC) at para 46.
[4]
Clause
8 (1) of the facilitation regulations provides that the Commission
must maintain a panel of facilitators
consisting
of commissioners
and other persons.
[5]
The
ILO Committee of Experts has noted the value of holding such
consultations, as “consultations provides an opportunity
for
an exchange of views and the establishment of a dialogue which can
only be beneficial for both the workers and employer.”
See
Thomas
v BNP Paribas Real Estate Advisory and (Pty) Management UK Ltd (EAT)
where it was confirmed that meaningful consultation entails early
stage consultation; providing adequate information; time to
respond
and genuinely considering the response.
[6]
[2011]
10 BLLR 945 (LAC).
[7]
[2007]
11 BLLR 1065
(LAC)