---

FLYNOTES: LABOUR – Dismissal – Operational requirements – Whether section 189A applicable because employer contemplating dismissing more than 50 employees – Employer contending that numbers dismissed below threshold – Issued notices to 63 employees – Those likely to be affected by proposed dismissals are employees it contemplates dismissing – Employer acted in a procedurally unfair manner when it proceeded to dismiss employees for operational reasons without following the prescripts of section 189A – Labour Relations Act 66 of 1995.

 

IN THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

Reportable

CASE NO: P 46/23 

In the matter between:

SOLIDARITY obo MEMBERS	Applicant
And
DIE HUMANSDORPSE LANDBOU KOӦPERASIE LTD	Respondent

 

Heard: 19 May 2023

 

Delivered: This judgment was handed down electronically by circulation to the Applicant’s and the Respondent’s legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing - down is deemed to be 14h00 on 26 May 2023.

JUDGMENT

 

JOLWANA AJ

 

Introduction

 

[1]      The applicant has approached this Court by way of urgency, in the main, seeking an order compelling the respondent to comply with a fair procedure in the retrenchment process the respondent has embarked upon. There is other ancillary relief sought by the applicant which hinges on the applicant being successful in the main relief. The applicant’s central contention is that in the process of retrenching some of its employees, which include applicant’s members, the respondent ought to have followed the procedure prescribed in section 189A of the Labour Relations Act (the LRA)[1] read with section 189 of the same Act. Contrarily the respondent contends that section 189A is not applicable in its circumstances. It was only required to comply with section 189(1) of the LRA because of the number of employees it contemplated dismissing and that is the procedure it followed.

 

The parties

 

[2]      The applicant is a registered trade union. In moving this application it is acting on behalf of its members, some of whom have already been dismissed. Its other members have not yet been dismissed as the retrenchment process is still underway. However, they are amongst the employees who received the section 189(3) notice. It also acts in its own interests as a registered trade union.

 

[3]      The respondent is a registered Cooperative with limited liability registered in terms of section 7 of the Co-Operatives Act No. 14 of 2005. It is based in the Eastern Cape town of Humansdorp.

 

 Background

 

[4]      At the time it needed to embark on a retrenchment process, the respondent employed a workforce of about 712 employees. It issued a section 189(3)[2] notice to 63 of its employees on 30 March 2023. In that notice it, inter alia, indicated that in the past 12 months preceding the notice it had dismissed a total of 8 employees for operational reasons. It further indicated that it was contemplating retrenching between 35 and 45 employees on this occasion for operational reasons.  

 

[5]      The applicant contends that based on the large number of employees whose services are likely to be terminated for operational requirements, the respondent is required to comply with the procedures and follow the processes prescribed in section 189A of the LRA read with some of the provisions of section 189 of the LRA. There is not much that is in dispute about the factual matrix in this matter. A lot of it is common ground. For instance it is common ground that 63 employees who worked in about 12 different departments of the respondent were identified as being affected by the looming retrenchment process. It is further common cause that in the section 189(3) notice it was indicated that between 35 and 45 employees were likely to be affected and that 8 employees had been retrenched in the 12 months preceding the section 189(3) notice. It is also not in dispute that the respondent did advise the affected employees during the consultation process that reference to the numbers 35 to 45 employees as being likely to be affected by retrenchment was in error. It then pointed out that the correct numbers were 35 to 40 employees that were likely to be affected. I deal with this specific issue later hereinbelow. Lastly it is further common cause that the respondent employed more than 500 employees. 

 

[6]      Essentially, the applicant raises two main contentions. The first contention is that this whole retrenchment process that the respondent embarked upon ought to have been done in terms of section 189A read with section 189. It further contends that the applicable provisions of section 189(2) were not complied with in that there was no meaningful consultation on alternatives to retrenchment. There was no meaningful joint consensus-seeking consultation on the selection criteria utilised by the respondent. The selection criteria were not agreed to and the criteria embarked upon was neither fair nor objective. Finally, the applicant contends that the respondent refused to disclose relevant information which was vital in ensuring the affected employees’ effective participation in the consultation process.

 

The section 189(3) notice and consultations

 

[7]      The section 189(3) notice, inter alia, indicated that the first consultation would take place on 5 and 6 April 2023. Indeed there was a consultation meeting on 5 April 2023 in which the affected employees sought further information from the respondent including the departments that would be affected, the alternatives that were considered by the respondent prior to the contemplated retrenchments and the proposed cost saving measures adopted by the respondent. It appears from the written record of consultation dated 6 April 2023 that the respondent identified and named the 12 departments that were going to be affected by the retrenchment process. It further explained that prior to issuing the notices it implemented the following measures to prevent possible redundancies:

“2.1      The salary and wage increases were granted for the 2023/2024 financial year.

2.2       The budgeted operational costs for the 2023/2024 financial year have been reduced by R18 million if compared to the actual costs of the 2022/2023 financial year.

2.3       The Qamata trading branch, which was not profitable, was closed.

2.4       It has been decided that certain operational and support service vacancies will become redundant and will not be filled.

2.5       The process for the sale of non-profit and non-core businesses has been started.

2.6       Stock levels have been reduced”.

  

[8]      The respondent further explained to the affected employees during the consultation process that despite the above measures being implemented they were not sufficient to prevent further cost saving measures including possible layoffs. The respondent still needed to implement further cost saving measures of about R15 million per year. Further engagements were embarked upon in which further clarity was sought by the affected employees and responses were given which resulted in the extension of consultation time by another 5 days to the 18 April 2023 to enable the affected employees to have more time to make submissions and proposals on possible alternatives. It was further indicated that the parties could meet again on 19 April 2023 for further consultations and discussions. However, the consultation meeting of the 19 April 2023 was postponed.

 

[9]      On the 20 April 2023 the respondent unilaterally decided to issue an invitation for employees in the affected departments who might be interested in taking voluntary separation packages as a further cost cutting measure. The applicant contends that there was no consultation about the contents and conditions of the proposed voluntary packages. Another meeting was scheduled for the 25 April 2023. However, that meeting was postponed after the applicant, through its attorneys, intervened on behalf of its members by sending a letter to the respondent dated 24 April 2023 raising a number of issues relating to what it called proper joint consensus-seeking consultation process and the respondent’s failure to provide the employees with the proposed workplace organogram. The applicant further alleges that in the midst of the exchange of correspondence between its attorneys and the respondent, the latter issued termination notices to some of its members including Mr Landman whose termination notice is dated 28 April 2023. This was shortly after Mr Landman had referred a dispute to the CCMA concerning the respondent’s alleged failure to provide relevant information concerning the retrenchment process.

 

[10]    The respondent’s main contention is that this Court has no jurisdiction to adjudicate this matter. This is because, so contends the respondent, it did not contemplate retrenching more than 50 employees including those it retrenched in the preceding 12 month period. Therefore, section 189A(13) on which the applicant relies simply finds no application. It further contends that with regard to it having indicated in its section 189(3) notice that it contemplated retrenching between 35 and 45 employees, reference to 45 was a bona fide error. It explained that no more than 40 employees would be retrenched. The respondent argues that this figure of 40 employees who could be possibly affected and the figure of 45 employees mentioned in the notice being an error is nothing new. It is not an after thought raised as an answer to the applicant’s application. It submitted that it was clarified during consultations held on 5 and 6 April 2023 verbally and unequivocally that the respondent was contemplating retrenching up to a maximum of 40 employees. 

 

[11]    The respondent explains that as a direct result of it having meaningfully engaged with the affected employees, only 21 employees were ultimately dismissed for operational purposes while 10 others elected to take the voluntary severance packages that were offered. Furthermore, in the preceding 12 months period only 8 employees were dismissed for operational purposes. This amounts to a total of 39 employees that have been dismissed for operational reasons. In fact, so goes the submission, the 10 employees who elected to accept voluntary severance packages are not classified as having been dismissed. Therefore, the actual number of employees who have been actually dismissed for operational reasons is 29 employees. That number is substantively less than the threshhold number of 50 employees required to trigger the provisions of section 189A of the LRA. For all those reasons, so contends the respondent, section 189A is simply inapplicable and in relying on this section, the applicant is merely trying to get ahead of the queue in this Court by resorting to this urgent application which it alleges is a misuse of the court process.

 

The legal framework    

 

[12]    This case largely turns on whether or not the respondent should have dealt with the retrenchment process in terms of section 189A and not solely in terms of section 189 as it has done. The jurisdictional factors for the applicant to approach this Court in terms of section 189A which in its terms provides various remedies to employees falling in a certain category are provided for in section 189A(1). Section 189A(1) reads as follows:

 

“This section applies to employers employing more than 50 employees

if-

 

(a)        the employer contemplates dismissing by reason of the employer’s operational requirements, at least –

 

(i)    10 employees if the employer employs up to 200 employees;

(ii)  20 employees, if the employer employs more than 200, but not more than 300, employees;

(iii) 30 employees, if the employer employs more than 300, but not more than 400, employees;

(iv) 40 employees, if the employer employs more than 400, but not more than 500 employees; or

(v) 50 employees, if the employer employs more than 500 employees; or

 

(b)     the number of employees that the employer contemplates dismissing together with the number of employees that have been dismissed by reason of the employer’s operational requirements in the 12 months prior to the employer issuing a notice in terms of section 189(3) is equal to or exceeds the relevant number specified in paragraph (a).”

 

[13]    It is common ground that before the section 189(3) notice was issued on the 30 March 2023 the respondent had dismissed, for operational reasons, 8 of its employees in the preceding 12 months. The only contested issue is the number of employees that the respondent was contemplating dismissing for operational reasons when it issued the section 189(3) notice. Some of the relevant facts in this matter which are largely common cause are that on the 30 March 2023 the respondent issued a section 189(3) notice aimed at only 63 of its over 700 employees. In that notice it communicated to the 63 employees that between 35 and 45 of them were likely to be affected and that in the preceding 12 months it had retrenched a total of 8 employees.

 

[14]    However, the issue of the number of employees to be affected does not end there.  During the consultation process, the affected employees asked a number of clarity seeking questions to the respondent. In response to those questions it was clarified that while the section 189(3) notice referred to anything between 35 and 45 employees as being affected, the number of employees the respondent contemplated dismissing was up to 40 employees. The employees then demanded to know the reason for the change in the numbers. The respondent’s did not provide reasons for the numbers changing from between 35 and 45 to between 35 and 40 as one would have expected. Its response was a curt indication that reference to 45 was an error and it should have referred to 40 employees that would be affected. The next question related to the number of staff to be retrenched. The respondent’s response was that the final number had not been decided.

 

Discussion on section 189(1) and (3)

 

[15]    It is very important to keep in mind that the requirement for the section 189(3) notice to contain, inter alia, the number of employees likely to be affected and the job categories in which they are employed is the only number that is mentioned which must be reflected in the notice in the whole of section 189 as it relates to the number of employees who are likely to be affected. Section 189(3)(c) requires the disclosure of information to the other consulting party in writing about the number of employees likely to be affected and the job categories in which they are employed. Therefore, the higher number, 45, which was mentioned in the section 189(3) notice in this case must be the number referred to in section 189(3)(c) which was basically that anything between 35 and 45 employees were likely to be affected.

 

[16]    Section 189(3) must be read with section 189(1). Section 189(1) reads:

 

“When an employer contemplates dismissing one or more employees for reasons based on the employer’s operational requirements, the employer must consult-

 

(a)   any person whom the employer is required to consult in terms of a collective agreement.

(b)   if there is no collective agreement that requires consultation-

(i) a workplace forum, if the employees likely to be affected by the proposed dismissals are employed in a workplace in respect of which there is a workplace forum; and

(ii) any registered trade union whose members are likely to be affected by the proposed dismissals;

(c)   if there is no workplace forum in the workplace in which the employees likely to be affected by the proposed dismissals are employed, any registered trade union whose members are likely to be affected by the proposed dismissals; or

(d)   if there is no such trade union, the employees likely to be affected by the proposed dismissals or their representatives nominated for that purpose.”  

 

[17]    In this case there was no collective agreement applicable, there was no trade union that had to be consulted, at least at the time of the notice, there was no workplace forum and there were no representatives that were nominated by the employees likely to be affected. Therefore, the consultation referred to in section 189(1) had to be with each employee who was likely to be affected. At that stage only the employer would know how many employees were likely to be affected. In its answering affidavit, the respondent indicates that it could have sent the section 189(3) notices to each and everyone of the more than 700 employees. I have serious reservations about the soundness of this submission. It seems to me that it misses the fact that in terms of section 189(1)(d), only the employees likely to be affected had to be consulted. The possibility of the whole workforce being subjected to the process and sent a section 189(3) notice when the employer knows that only a limited number of its employees in certain identified categories will be affected and should therefore be consulted seems to me to be an aberration.  

 

[18]    In any event, the respondent issued notices to only 63 employees that were in certain identified departments. Therefore, each and everyone of those 63 employees was, as a matter of law, an employee likely to be affected by the proposed dismissals. None of them could, on any reading of section 189(1), assume that they were not affected. The question therefore is whether the number of employees an employer contemplates dismissing as referred to in section 189(1) is different from the number referred to in section 189(3)(c) to whom critical and detailed information concerning the whole process must be disclosed in the notice. I am of the view that the number referred to in both subsections is the same. In other words, if the employer believes that a certain number of employees may be affected, those are the employees it contemplates dismissing. Were it not so, it would make no sense to consult, in this case, with 700 or so employees when only 63 of them are in the retrenchment radar. Similarly, consultation with 63 employees when only 40 employees may be affected or the employer contemplates dismissing is counterintuitive in my view. I simply do not think that the Legislature intended two different categories of employees, that is the ones who must receive the notice and must be consulted and the other category being those the employer actually contemplates dismissing who must also be consulted. The interpretation that seeks to distinguish the number of employees referred to in section 189(1) from the one referred to in section 189(3)(c ) would lead to an avoidable absurdity.

 

[19]    The process envisaged in section 189 is a very onerous and involved one, with far reaching implications for those affected not only because it presents an existential crisis in the life of an employer and its employees but also because it is regulated by and it flows from legislation. It may affect the livelihood of potentially millions of employees who may go through it in their working lives in this country. It also has a very serious impact on the families of those employees including their children whose trajectory of life may be changed drastically depending on the outcome of the retrenchment process in respect of each individual employee. I find the comments made in Atlantis Diesel[3] by the then Appellate Division most compelling on what lies at the core of the legislated consultation process. In that case Smallberger JA expressed himself thus:

 

“The need to consult before a final decision on retrenchment is taken has its rationale both in pragmatism and in principle. (cf South African Roads Board v Johannesburg City Council 1991 (4) SA 1 (A) at 13B–C). It is rooted in pragmatism because the main objective must be to avoid retrenchments altogether, alternatively, to reduce the number of dismissals and mitigate their consequences. Consultation provides employees or their union(s) with a fair opportunity to make meaningful and effective proposals relating to the need for retrenchment or, if such need is accepted, the extent and implementation of the retrenchment process. It satisfies principle because it gives effect to the desire of employees who may be affected to be heard, and helps serve the underlying policy of the Act, to avoid or at least minimize industrial conflict. Where retrenchment looms employees face the daunting prospect of losing their employment through no fault of their own. This can have serious consequences and threaten industrial peace. Proper consultation minimizes resentment and promotes greater harmony in the workplace.”

 

[20]    I am of the view that due to the serious nature of the retrenchment process and its implications for those affected, the number of employees affected cannot be a product of mere conjecture. It has to be based on the actual information at the employer’s disposal and must lead to everyone who may be affected being part and parcel of and actually actively participating in the evolution of the process regardless of what may ultimately be the outcome. Therefore, the 63 employees in this case are the ones who are affected employees referred to in section 189. It follows that they are also the number of employees the respondent contemplated dismissing. Even if I am wrong in this regard, not only did the respondent have in its retrenchment radar 63 employees, it also issued a section 189(3) notice in which it communicated a figure of between 35 and 45 employees as being the number it was contemplating retrenching.  It has not explained what informed the number of 63 employees or at the very least the basis on which any one of those 63 employees could, by some logic, be regarded as not being under the dismissal contemplation. Even the error that the respondent says led to it referring to 45 instead of 40 employees is not explained beyond merely saying that it was just an error. There is no explanation as to when the error was realized and what was done to correct it. For instance there is no explanation for the conclusion that 45 could only have been an error because, for instance it was not aligned with whatever information or data at its disposal which informed the maximum number of 40 employees. It surely cannot be that just because the employer says it is contemplating dismissing up to 40 employees, therefore it is up to 40 and not up to 45 or up to 63 with no reference to any numerical data that informs whichever number is referred to.  

  

[21]    The section 189(3) notice issued on 30 March 2023 was never withdrawn. It therefore remains extant. I cannot fathom why it could not have been withdrawn when the error was realized and replaced with one reflecting the correct number the respondent says it intended. That is, if the number referred to in the notice was a mere error as the respondent submits. During the consultation process and throughout, whenever the employees repeatedly asked about the number of employees who may be affected, the consistent answer was that the final number had not yet been decided. This, in circumstances in which 63 employees had been informed by the respondent that they could possibly be affected. The idea that an employer could possibly simply avoid the cumbersome section 189A process by ensuring that the number mentioned in the section 189(3) notice is less than the applicable threshhold is fraught with problems. An employer must surely be able to justify the targeted number which can be explained, scientifically so, not based on whatever number the employer says it is. Any elasticity to the numbers without more would make a mockery of the whole section 189A legislated framework. Any untrammelled elasticity would lead to the unintended consequence that the section 189A process could be subject to manipulation by unscrupulous employers.

  

[22]    It cannot be ignored that the section 189A process is not only cumbersome but also it has elements built in it which require the involvement of an independent third party, the facilitator appointed by the CCMA. This has the effect of neutralizing the control an employer has over the process. In NEHAWU[4] Van Niekerk J had this to say about the requirements of sections 189 and 189A.

 

“The question then is whether the second respondent had failed to comply with the process-related requirements of sections 189 and 189A. At the outset, it should be observed that where a facilitator is appointed to chair the facilitation process, the broad powers and duties of a facilitator conferred by both section 189A and Regulation 4 of the facilitation regulations, would ordinarily leave little scope for criticism of employer conduct in relation to procedure. The structure of section 189A and the powers and duties conferred on facilitators ought to have the result that facilitators manage the process and ensure that the statutory requirements of procedural fairness are observed. Put another way, one of the primary objectives of a facilitator is to exercise the powers afforded him or her to ensure that the employer complies with a fair procedure.”  

 

It is not difficult to imagine some employers looking for and finding creative ways of avoiding surrendering their control over the process to the facilitator who is statutorily obliged to ensure that all the legislative requirements and prescripts are observed to the letter.  

 

Section 189A(13) of the LRA

 

[23]    I turn now to look at the pertinent issues around section 189A which should deal with two of the respondent’s points in limine, the issue of jurisdiction and the issue of urgency. I must point out at the very outset that a finding that the respondent should have followed the procedure prescribed in section 189 read with section 189A and not just section 189(1) only will dispose of the issue of urgency. This is so because in terms of section 189A(17) an application in terms of section 189A(13) must be brought not later than 30 days after the employer has given a termination notice to the affected employees or within 30 days of their dismissal. That makes this kind of an application generally urgent. Furthermore, as will be shown below some, if not all the relief envisaged in section 189A(13), is intended to force compliance with a fair procedure. The order for compliance with a fair procedure, if the employees succeed, means that the process must be immediately corrected in terms of the directives the court may issue. That cannot possibly be expected to be something that could be done in the normal course and outside the rules of urgency as that could foreseeably lead to the proverbial horse having bolted by the time relief in the normal course is obtained.

 

[24]    Section 189A(13) on which the applicant’s case stands and falls and on which the respondent’s jurisdictional point in limine will also stand or fall reads:

 

“If 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-

 

(a)   compelling the employer to comply with a fair procedure;

(b)   interdicting or restraining the employer from dismissing an employee prior to complying with a fair procedure;

(c)   directing the employer to reinstate an employee until it has complied with a fair procedure;

(d)   make an award of compensation, if an order in terms of paragraphs (a) to (c) is not appropriate.”

   

[25]    I am emboldened in the views that I hold on the urgency of the section 189A(13) applications by the sentiments expressed in Steenkamp[5] in which the court said:

 

“Where procedural irregularities arise, the process provided for in section 189A(13) of the LRA allows for the urgent intervention of the Labour Court to correct any such irregularities as and when they arise so that the integrity of the consultation process can be restored and the consultation process can be forced back on track. The purpose of section 189A(13) has been recognized in a long line of cases. In Insurance & Banking Staff Association the Labour Court explained:

 

“The overriding consideration under section 189A is to correct and prevent procedurally unfair retrenchments as soon as procedural flaws are detected, so that job losses can be avoided. Correcting a procedurally flawed mass retrenchment long after the process has been completed is often economically prohibited and practically impossible. All too often the changes in an enterprise with the passage of time deter reinstatement as a remedy. So, the key elements of section 189A are: early expedited, effective intervention and job retention in mass dismissals.”

 

I can perceive of no worse procedural irregularity in a retrenchment process than the procedure provided for in section 189A not being followed at all under the mistaken belief that in the circumstances of a particular case that process is not applicable when in fact it is.

 

[26]    The other point in limine was that Messrs Potgieter, Van Vuuren and Theron who are also members of the applicant have not been dismissed and therefore should not be party to these proceedings. This argument is misplaced as it completely misses the point that on the correct reading of section 189A(13) it is permissible to approach court even before dismissals happen to force compliance with a fair procedure by correcting any irregularities in the process so as to avoid dismissals, if possible. The argument that the three members of the applicant could not, and the applicant should not have approached this Court on their behalf until they are dismissed also misses the overriding fundamental value of the section 189 and 189A legal framework which is, where possible, the complete avoidance of dismissals.

 

[27]    For the correct interpretation of section 189A(13) the Constitutional Court in Solidarity[6] quoted with approval, the interpretation of this section by the Labour Court in NUM as follows:   

 

“In NUM, the Labour Court described section 189A(13) as follows:

 

“Section 189A(13) was introduced in 2002 and was intended, broadly speaking, to provide for the adjudication of disputes about procedural fairness in retrenchments at an earlier stage in the ordinary dispute resolution process, and by providing for their determination, inevitably as a matter of urgency, on application rather than by way of referral. The section empowers employees and their representatives to approach the court to require an employer to apply fair procedure, assuming, of course, that the jurisdictional requirements set out in section 189A are met. The section affords the court a broad range of powers, most of which appear to suggest that where a complaint about procedure is made by a consulting party, the court has a broad discretion to make orders and issue directives, thereby extending to the court an element of what might be termed a degree of judicial management into a contested consultation process.”

 

[28]    As I conclude I do need to point out that this case is not, in my view, primarily about whether or not there was compliance with a fair procedure in the consultation process that the respondent embarked upon as such. Its genesis is the mischaracterization as a process in which section 189A is not applicable and that the section 189(1) process is the applicable one. This mischaracterization by the respondent led to it completely ignoring section 189A, incorrectly so as I have found. It might very well be that the process followed by the respondent on the basis of its belief that section 189(1) was the correct process was, whilst not without criticism or short comings, not a complete waste of time . It is only when it is looked at with the section 189A prism that the whole edifice of the respondent’s consultation process falls flat. The remedy in that situation is not the issuing of orders or directives for that process to be tweaked here and there. It is for that process to be done under the auspices of section 189A read with section 189 which is what should have happened from the beginning.

 

[29]    Section 158(1)(a) gives certain powers to this Court in the following terms:

“The Labour Court may-

(a)  make any appropriate order, including-

(i)  the grant of urgent interim relief;

(ii)  an interdict;

(iii) an order directing the performance of any particular act which order, when implemented, will remedy a wrong and give effect to the primary objects of this Act;

(iv) a declaratory order;

(v) an award of compensation in any circumstances contemplated in this Act;

(vi) an award of damages in any circumstances contemplated in this Act; and

(vii) an order for costs.”

 

[30]    The mistake that needs to be remedied is the non-compliance with the provisions of section 189A when the respondent acted under the incorrect impression that it was not necessary for it to have regard to section 189A as it dealt with the retrenchment process. While it is so that there were some consultations as required in terms of section 189, it is clear that in some of the consultations that did take place, the respondent was still going to consider certain proposals that the employees made as a way of mitigating the number of the employees that could be dismissed, if avoiding dismissals totally was not possible. Even in this court the respondent has not presented the new workplace organogram that ought to have been a product of proper consultations. In other words, it went ahead with dismissals with no road map of how the employee floor plan would look like on completion of retrenchments. The powers of the Labour court especially as they relate to non-compliance with section 189A were explained in Steenkamp[7] in the following terms:

 

“If an employer has not issued notices of dismissal but has failed or is failing to comply with a fair procedure in the pre-dismissal process, a consulting party may make use of the remedy in subsection (13)(a). In such a case the consulting party would apply to the Labour Court for an order compelling the employer to comply with a fair procedure. If an employer gives employees notices of dismissal without complying with a fair procedure, or, if an employer dismisses employees without complying with a fair procedure, the consulting party may apply to the Labour Court for an order interdicting the dismissal of employees in terms of subsection (13)(b) until there is compliance with a fair procedure. This would include giving premature notices of dismissal.

 

If an employer has already dismissed employees without complying with a fair procedure, the consulting party may apply to the Labour Court in terms of subsection (13) (c) for an order reinstating the employees until the employer has complied with a fair procedure. The significance of the remedy of reinstatement in subsection (13) (c) is that it is made available even for a dismissal that is unfair only because of non-compliance with a fair procedure. That is significant because it is a departure from the normal provision that reinstatement may not be granted in a case where the only basis for the finding that the dismissal is unfair is the employer’s failure to comply with a fair procedure. In such a case the norm is that the Labour Court or an arbitrator may award the employee only compensation.”     

 

[31]    In this matter some of the applicant’s members have already been dismissed whilst others have not yet been so dismissed. Bearing in mind that the retrenchment process has not yet been completed, those who have not yet been dismissed may very well face a possible dismissal if an appropriate relief is not granted. No case was made that for whatever reason or circumstance it would be inappropriate to reinstate the applicant’s members that have already been dismissed. In light of the fact that some consultation process did take place, all is not lost. The parties need to go back to the consultation table and iron out all the outstanding issues. As the applicant’s counsel pointed out, the possibility of finalising the whole process in a short space of time cannot be ruled out. I am however, reluctant to put any time frames for the consultation process. I would like to assume that both parties are committed to a consultation process that is legally compliant and that is conducted in a bona fide manner. After all, there is no benefit for any of the parties in an unduly prolonged process that may cause harm to the respondent. This is besides the fact that the employer and the employees are always entitled to approach court for an appropriate relief should a need arise.

  

Conclusion

 

[32]    The applicant must therefore succeed in its application and must be granted the relief sought. I do not think that it would be appropriate to make an order for costs against the respondent in the circumstances of this case. Costs are generally a matter for the discretion of the court which must be judiciously exercised in light of equity and fairness considerations. In my view, no case has been made that the respondent necessarily acted mala fides in not complying with section 189A. Besides, it seems to me that until there was a need for retrenchment, the relationship between the parties was always good. The employer/employee relations were, throughout, cordial and all concerned acted for the greater good of the respondent. That can still happen in my view even under these challenging times. Where maturity is required, it is hoped that that maturity will be abundantly manifested by all concerned to avoid harm being caused to the respondent which employs close to one thousand employees who may suffer if the work situation is not handled with the requisite care by all participants including the applicant. These remarks are made to caution both sides and indeed all affected employees in this matter to act carefully and responsibly to make the consultation process as seamless as possible.  

 

[33]    In the result the following order shall issue:

 

Order:                        

1.     That the matter be and is hereby entertained on an urgent basis and that the applicant’s non-compliance with the rules of this Court is condoned.

 

2.     It is declared that the respondent has acted in a procedurally unfair manner when it proceeded to dismiss the applicant’s members for alleged operational reasons without following the prescripts of section 189A.

0.5in; margin-bottom: 0in; line-height: 150%">  

 

3.     The respondent is ordered to reinstate with retrospective effect and with full remuneration and benefits the applicant’s members that have been dismissed as at the date of the hearing of the application and the respondent is directed to embark on and continue with a meaningful joint consensus-seeking process as envisaged by s 189 and s 189A of the Labour Relations Act 66 of 1995, which fair operational procedure includes inter alia:  

 

3.1 That the applicant be included in the meaningful joint consensus-seeking process on behalf of its members.

 

3.2 That the respondent is ordered to consult with the applicant and its members with the view of reaching consensus on certain cardinal matters which include the avoidance of retrenchments, the selection criteria, the timing of the retrenchments, and other measures which might minimize the impact of the proposed retrenchment.

 

3.3 That the respondent is ordered to provide the applicant and its members with important information such as the proposed restructured workplace organogram and the proposed method of selecting employees likely to be retrenched and all possible alternatives to retrenchment.

 

3.4 That the applicant and its members be afforded sufficient and reasonable time to submit their representations and that the respondent reply thereto in writing within a reasonable period prior to subsequent consultations.

 

4.     That the respondent be and is hereby interdicted and restrained from dismissing any of the applicant’s members employed by the respondent forthwith prior to complying with a fair operational requirement procedure.

 

5.     There will be no order as to costs.

 

M. JOLWANA

Acting Judge of the Labour Court of South Africa

 

APPEARANCES

 

For the Applicant:	Adv. Groenewald
Instructed by	Sertontein Viljoen & Swart
	PRETORIA
For the Respondents:	Adv. AH Shene
Instructed by	Andrew Meldrum Attorneys
	GQEBERHA

 

---