The factual matrix from which this judgment arises concerns a retrenchment dispute. The matter pivoting on the consultation process adopted by Patcon Construction & Civil Engineering Contractors (Pty) Ltd (the “Employer”) with the Association of Mineworkers & Construction Union (the “Trade Union”). The Trade Union disputed the Employer’s compliance with the consultation process stipulated in Section 189A of the Labour Relations Act No. 66 of 1995 (“LRA”).
The Trade Union represented 88 employees or former employees who were unhappy with the consultation process, claiming that it was unfair and not in accordance with the procedure envisaged in the LRA. The Trade Union contended that the retrenchments were implemented rapidly and showed a blatant disregard for the protective parameters of Section 189 of the LRA.
Section 189A(1) of the LRA applies to employers that employ 50 or more employees, its aim being to facilitate and protect job security and to effectively resolve disputes in large scale retrenchments, as well as providing swift remedies, especially where procedural defects occur in the retrenchment process.
The Trade Union approached the Labour Court (the “Court”) with the intention of getting on order reinstating the employees who had been retrenched and an interdict restraining the dismissal of further employees.
In light of the meaningful consultation process envisaged by the LRA, the Court found that the Employer failed to host the comprehensive facilitation process required when embarking on retrenchment proceedings in terms of Section 189 of the LRA.
The court thus found that that the consultation process utilised by the Employer was unduly curtailed and that discussions had not run their course except in relation to the first phase of retrenchments.
The Court relied upon Banks & another v Coca-Cola SA—A Division of Coca-Cola Africa (Pty) Ltd, in which it was that:
“It is well established that the aim of the consultation process established by S189 is to avoid dismissal, or at least to effect a reduction in the number of dismissals and to mitigate the effect of dismissal on affected employees. The nature of the process is equally well established — the parties are required to engage in a problem-solving or joint consensus-seeking exercise.”
The Court granted the dismissed employees four weeks’ compensation and held further that the Employer is interdicted and restrained from retrenching the remaining employees, and also ordered the Employer to facilitate a series of meetings with the Trade Union to address various issues pertaining to the consultation process, which the Employer had reneged on previously.
This judgement highlights the protections afforded to employees, as well as the numerous hurdles an employer has to cross when contemplating retrenchment. The consultation process mandated by the LRA in Section 189, provides damage control measures and seeks to alleviate the detrimental effect retrenchments have socially and economically. The judgment demonstrates the severity with which employers will be dealt with if they attempt to evade the stipulated parameters of Section 189 of the LRA.
Written by Nicola du Toit, Associate and John Mackechnie, Candidate Attorney.