Can you be retrenched via Zoom?

Since the outbreak of the Coronavirus (COVID-19), and with it the lockdown and restrictions imposed in SA, we have all had to adapt to a “new normal” such as working from home, more often than not, using the digital and virtual platforms to communicate with employers/ employees as well as clients and suppliers etc. We have all had to adapt to this new way of working which many believe is the new normal. This will affect our employment relationships going forward and it is essential that we keep abreast of the case law, pertaining to employment, which will similarly evolve to give effect to this new normal.

We have already had disciplinary, grievance and poor performance proceedings conducted via the digital platforms and employers have had to amend their respective policies to accommodate this.

What about retrenchments in terms of section 189 of the Labour Relations Act, 1995 (“LRA”)? 

The Labour Court dealt with this in the recent matter of Food and Allied Workers Union (“FAWU”) v South African Breweries and another.

Background facts

During January 2020, South African Breweries (“SAB”) contemplated the need to restructure its operations, and issued a notice in terms of section 189(3) of the LRA, as required by the Act to commence with the consultation process. As large-scale retrenchments were contemplated SAB invoked the provisions of section 189A of the LRA, and requested the appointment of a facilitator through the auspices of Commission for Conciliation, Mediation and Arbitration (“CCMA”) to facilitate the consultations, which was done.

On 23 March 2020 our president declared a complete lockdown in accord with the National Disaster Management Act as a means of limiting the spread of the virus which including social distancing measures resulting in many employers having to make arrangements, where possible, for their employees to work remotely from their home. 

Section 189 and more particularly section 189 (2) LRA requires that the parties (employers and employees or their representatives) to engage in “a meaningful joint-consensus seeking process and attempt to reach consensus” on the issues as set out in s189. 

How did SAB continue with this consultative process during the lockdown? SAB proposed that consultations continue via Zoom (videoconferencing application). FAWU adopted the position that it could not consult via Zoom and that the consultations could only resume once the national lockdown had been uplifted.

Notwithstanding FAWU’s objections, SAB continued consultations with the remaining consulting parties despite FAWU refusing to attend these consultations.

FAWU then launched an application in terms of section 189A (13) of the LRA on the basis it argued that SAB was acting in a procedurally unfair manner and sought an order from the Labour Court, inter alia, declaring that SAB was acting procedurally unfairly in continuing with the consultations via Zoom.

The Law

The presiding Justice Moshoana held that the LRA does not prescribe the form in which consultations must take place and that the LRA even allows for consultation to occur exclusively via correspondence. The court noted that what   the COVID-19 pandemic meant was that a “new normal” had to be adopted to accommodate the prevailing circumstances. 

The court had to consider whether consultations which were normally held in the form of physical meetings and were now conducted in a manner other than this rendered the consultations procedurally unfair.

The court held that in the present circumstances, applications such as Zoom must be used to ensure that health and safety of individuals are maintained and the use of Zoom or similar applications for the purposes of consultations in terms of section 189 does not render the consultation process procedurally unfair.

The irony is that whilst FAWU refused to participate in the section 189 consultations and yet it participated in the urgent application before the court via zoom. 

Insofar as FAWU had refused to participate in the consultations via videoconferencing facilities, the Labour Court reiterated the principles that were articulated by the Labour Appeal Court in the matter of SAA v Bogopa and others which held that in circumstances where a trade union 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 the consultation process having been completed.

The court dealt with the benefits of the CCMA facilitated process by reiterating the Constitutional Court judgment of Basson AJ in Steenkamp v Edcon Limited where it was said:

“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 “

Accordingly the court dismissed FAWU’s application.

What this means is that our courts are adopting and adapting to the so-called “new normal” and this looks to be the approach going forward where possible and not just during the lockdown.

Please remember whilst you have the right to refuse to participate in the consultative process, you do so at your own risk, as employers may continue in your absence which may see you being retrenched without being heard and generally the courts are unlikely to be sympathetic if you have refused participation based on the employer’s use of the digital platforms as a means of consulting. 

BUT where employers insist on using videoconferencing as a means of communication/consultation, the employer bears the onus of ensuring that its employees/ consulting parties have the necessary equipment and tools to meaningfully participate in this manner, failing which the courts are likely to declare such process to be unfair.NB: Please note that this article is for informational purposes only and not for the purpose of providing legal advice. Should you require more information on this topic or any issue arising out of this please contact Allardyce & Partners on 011-234 2125 or enquiries@www.allardyce.co.za

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