We at CEO previously brought you an article regarding retrenchment negotiations during the lockdown, discussing the difficulties of consulting with employees face-to-face.
We confirmed that, in this new mask-wearing, social distancing way of life, modern technology can assist an employer in fulfilling its’ obligation under section 189 of the Labour Relations Act to meaningfully consult with its’ employees regarding looming retrenchments.
And now the Johannesburg Labour court has confirmed, in the case of Food and Allied Workers Union (FAWU) v South African Breweries (SAB), that the use of Zoom and other video conferencing facilities are acceptable in the current climate.
In this case, the first three consultations, which began in January, were held in the presence of a CCMA facilitator, however, due to the lockdown regulations being imposed in response to the COVID 19 pandemic, the process had to continue under the crisis.
SAB requested that the final consultation be held via Zoom, this request was in line with the directives issued by the CCMA during the lockdown supporting the use of Zoom. However, FAWU refused this request and refused to participate in the consultation.
In terms of the CCMA directives, both parties to a dispute MUST consent to the proceedings being held via Zoom, therefore due to the lack of consensus, the CCMA was not able to facilitate the consultation. SAB then proceeded to hold the final consultation with the employees via Zoom and in the absence of FAWU and the CCMA.
The union then referred an urgent application to the Labour Court alleging that SAB had held a final consultation in an s189A retrenchment proceeding via ZOOM and that this was done without the consent of the trade union and in the absence of the CCMA. FAWU sought an order from the Labour Court declaring the process procedurally unfair and sought to interdict SAB from retrenching employees until such a time that face-to-face consultations could be held.
Judge Graham Moshoana confirmed that “with the new normal, Zoom is an appropriate form of meetings taking place. It is a necessary tool to ensure restrictions, like social distancing as a measure to avoid the spread of the virus, are observed.” Judge Moshoana continued to state that “there is nothing procedurally unfair if a consulting party suggests its use.”
In dismissing the application, the court said that a party could not complain about procedural unfairness if it rejected the offer to be consulted.
This judgement reiterates the drastic changes that employers and society, in general, need to implement in order to work around COVID 19 to ensure that they do not remain stagnant. It is clearly time to accept our new normal and embrace technology as part of the solution to the many problems brought on by COVID 19.
We at CEO will continue to work to discover innovative methods of providing the best possible service to our members.