McCarthy Attorneys Inc

Virtual Retrenchment Consultations

The Labour Court in Food and Allied Workers Union (FAWU) v South African Breweries (SAB) held that where an employer offers to consult in the retrenchment process in a particular manner (in this instance via video conferencing) and the other party refuses to consult in the proposed manner, completion of the retrenchment process without the other consulting party does not amount to procedural unfairness.

In response to the declaration of a national disaster occasioned by COVID-19, the CCMA had issued an urgent directive whereby all processes involving face-to-face interactions were postponed. Retrenchment consultations in terms of S189A of the Labour Relations Act could, however, continue in venues outside the CCMA offices, with the consent of all relevant parties.

In this case, FAWU refused to take part in the proposed Zoom consultations as they were not face-to-face. SAB went ahead despite FAWU’s unreasonable refusal and continued the consultation process. When the consultations concluded, notices of termination were subsequently issued by SAB to the relevant employees.

FAWU contended on application to the Labour Court that the continuation of the consultations using Zoom video conferencing, in its absence, was procedurally unfair. The Court held, however, that the consultations were procedurally fair and that such consultations are the “new normal”. The Court reiterated that where a union abandons the process due to no fault of the employer, the dismissal cannot be said to be procedurally unfair if the dismissal of an employee follows without the consultation process having been completed.

Therefore, where a party refuses to participate in or frustrates the consultation process, they cannot bemoan its procedural unfairness.

Employers, therefore, do have the right to insist on the use of video conferencing facilities. They must still, however, take cognisance of whether the other consulting parties have the necessary tools to participate in a meaningful way.

If you have any questions about other Labour or Land issues, contact McCarthy & Associates Attorneys on (033) 266 6170 or admin@maalaw.co.za