In the case of South African Transport and Allied Workers Union and Others v Ikapa Coaches (A division of Cullinan Holdings Ltd) and Others (J 683/2020)  ZALCJHB 148 (2 September 2020) it was held that even where an employer is burdened by financial constraints resulting from the Covid-19 pandemic, a fair and meaningful consultation process, as prescribed by section 189 of the Labour Relations Act (“LRA”), is vital before there can be a termination of employees.
The employer operates within the hospitality and tourism industry, which was detrimentally impacted by the Covid-19 pandemic. As a result of the pandemic, the employers’ business had to close down effectively. In accordance with existing measures to curb the spread of Covid-19, the tourism industry would only be fully operational under Level 1. The employers made an application for the applicable Temporary Employee Relief Scheme (TERS) benefits and further offered reduced remuneration to its employees. Some employees accepted reduced remuneration whilst others, including the employees, in this case, rejected that offer and demanded to be paid in full.
The employers issued notices of retrenchment in terms of sections 189(3) of the LRA on and around 12 May 2020. The notices set out the details required by the LRA. The union representing the employees, SATAWU, acknowledged receipt and indicated its intention to exercise its rights to have a CCMA appointed facilitator to facilitate the consultations. SATAWU, however, failed to make timeous enquiries with the CCMA about the status of its application for a facilitator.
On and around 21 July 2020, the employer circulated text messages to their employees enquiring whether they would require their UIF documents. SATAWU contended that these messages were essentially confirmation of the employees’ dismissal. The employers replied by stating that the enquiries were merely to aid their employees in securing relief funds.
On 12 August 2020, the employers subsequently sent notices of termination to the employees; taking effect from 11 September 2020. SATAWU launched an application to the Labour Court on 17 August 2020. SATAWU subsequently sought an order reinstating its members until the employers complied with a fair retrenchment procedure.
The question to be determined was whether an employer is entitled to issue notices of termination in circumstances where a CCMA facilitator, despite a request by the union, has not been appointed; and where the 60 day period contemplated in section189A(7)(a) of the LRA had lapsed were no consultations had taken place.
The Labour Court held that the employer, even if entitled to issue a Section 189(3) notice in the light of their precarious financial position, had an obligation to do more than issue an invitation to consult, even though SATAWU had not taken the process of facilitation forward. The employers were obliged to either assist in the commencement of the facilitation process or even insist on plant level consultations. A fair and meaningful consultation process, as prescribed by the LRA, is vital.
The Labour Court accepted that when an employer invites employees or their trade union to consult, and such an invitation is either rejected or ignored, or where the employees or the union initially participated but later abandoned 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 a completed consultation process.
But in this case, SATAWU had not employed obstructive and adversarial delaying tactics or refused to engage in any consultations in circumstances where the dispute had been referred to the CCMA for the appointment of a facilitator.
The Court said SATAWU was clearly at fault by not doing enough in ensuring that the facilitation took place. But to allow the employers to effect the dismissals where not even one session of consultations took place would defeat the objectives of any form of joint consensus-seeking exercise to avoid the retrenchment and ameliorate its consequences, as required by section 189A of the LRA.
The Court held that an appropriate order would be to compel the parties to engage in a joint consensus-seeking exercise but within strict specific time frames.
It is clear from this case that the Labour Court will not accept procedural non–compliance under s189A to justify failure in attempting meaningful retrenchment consultation.
Article by: Nagarsen Naicker
Dispute Resolution Official – Pretoria