Section 189, read with Section 189A of the Labour Relations Act 66 of 1995 (hereafter referred to as the Act), prescribes the procedure to be followed where an employer contemplates terminating the services of employees by reason of operational requirements.

Section 189A deals with large scale retrenchments as defined by the said section. Section 189A(3) makes provision for the appointment of a facilitator by the CCMA. Where a facilitator is appointed, Facilitation Regulations issued in terms of Section 189A(6) will also be applicable.

Section 189A(13) of the Act provides that where 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 –

  1. compelling the employer to comply with a fair procedure;
  2. interdicting or restraining the employer from dismissing an employee prior to complying with a fair procedure;
  3. directing the employer to reinstate an employee until it has complied with a fair procedure; or
  4. make an award of compensation if an order in terms of paragraphs (a) to (c) is not appropriate.

The Labour Court may be asked to intervene in terms of Section 189A at any appropriate stage during the consultation process that has been initiated or even prior to that. Section 189A(17), however, prescribes that an application in terms of Section 189A(13) must be brought no later than 30 days after the employer has given the notice to terminate the employee’s services or if notice is not given, the date on which the employees are dismissed.

The first two remedies in terms of Section 189A(13) contemplate intervention by the Labour Court prior to dismissal taking effect. The latter two can only be contemplated if dismissal has already been effected.

In the matter of AMCU Members v Tshipi E Ntle Manganese Mining (Pty) Ltd, the Labour Court held that “The conclusion to be drawn from the wording of section 189A is that this Court appears to have been accorded a proactive and supervisory role concerning the procedural obligations that are attached to operational requirements dismissals. Where the remedy sought requires intervention in the consultation process prior to dismissal, the Court ought necessarily to afford a remedy that accounts for the stage that the consultation has reached. If it appears to the Court that little or no purpose would be served by intervention in the consultation process in one of the forms contemplated by section 189A(13)(a), (b) and (c), then compensation, as provided by para (d), is the more apposite remedy.”

As the remedy contained in Section 189A(13)(d) would be more enticing to employees already dismissed for operational reasons, the question begs whether an employee can specifically request the remedy of compensation to the exclusion of the other remedies contained in the section.

In Steenkamp and Others v Edcon Limited the Constitutional Court found that the broader context of Section 189A and the primary purpose of Section 189A(13) should be taken into account to aid the interpretation and consideration of the remedies provided for in terms of s 189A(13). The Court held that the section’s primary motive is corrective relief, which is directed at ensuring the retrenchment process resumes and is conducted fairly.

The Court concluded that it is only permitted to consider subsection (d) in specific circumstances, namely where awarding relief in terms of subsection (a) to (c) would be inappropriate, given the particular facts placed before the Court.

The relief in Section 189A(13) can therefore be said to have a specific order where subsection (a) to (c) are the preferred remedies and subsection (d) will only be contemplated where subsection (a) to (c) is not deemed appropriate.

Article by: Ilze Erasmus
Dispute Resolution Official – Port Elizabeth