The factual context from which this judgment arises concerns the procedural fairness of a retrenchment dispute. The matter pivoted on the applicability of S189A of the Labour Relations Act No. 66 of 1995 (“LRA”), Mr. Wessel Enslin (“the Employee”) disputed the provisions applicability, whereas Lonmin Platinum Comprising Western Platinum Limited (“the Employer”) contended the provision applied and “that consequently this Court’s jurisdiction to enquire into procedural fairness is ousted by section 189A(18) of the LRA.”
At the heart of the Employer’s contentions was section 189A(18) of the LRA which provides that:
‘The Labour Court may not adjudicate a dispute about procedural fairness of a dismissal based on the employer’s operational requirements referred to it in terms of section 191(5)(b)(ii)’.
In the current matter, the Employer issued 2 (two) notices under the provisions of Section 189(3) of the LRA, being addressed to the trade unions involved, being NUM, UASA, Solidarity and AMCU (the trade unions), the second notice being issued to the Employee.
At the heart of the Employee’s disputation was that there were alternatives to retrenchments. The Employee contended that the Employer failed to consider the implications of the retrenchment, as well as failing to disclose the number of employees effected.
However, on analysis of the factual matrix, the court noted that the Employer was mindful of the provisions of the LRA, this being evidenced by the proposed facilitation of consultations and proposed use of restructuring agreements. The parties agreed to seek a facilitator to assist in the restructuring process.
In light of the facilitation process envisioned by the LRA, the Court found that the Employer hosted the comprehensive facilitation process required when embarking on retrenchment proceedings in terms of S189 of the LRA.
Furthermore, the court was cognisant of the fact that the Employer had contemplated retrenching employees in accordance with the scale provided in section 189A(1)(a)(v). In addition, a facilitator was appointed in terms of section 189A(4). This being a large-scale retrenchment, section 189(13) read with section 189A(18).
Consequently, the Court concluded that the court had no jurisdiction to adjudicate a dispute about the procedural fairness of the Employee’s dismissal based on the Employer’s operational requirements.
The court noted that the substantive fairness of the matter needed to be adjudicated at a future date.
This judgement highlights that even though there are protections afforded to employees (as well as numerous hurdles an employer has to overcome when contemplating retrenchment), employers will not be unduly punished when effecting retrenchments under the ambit of the LRA. Furthermore, the judgment highlights the detrimental effect retrenchments have socially and economically, one gets a glimpse into the severity with which employers will be dealt with if they attempt to evade the stipulated parameters of S189 of the LRA.
Written by John Mackechnie and supervised by Heidi Barter, 22 November 2018