COVID-19: LABOUR COURT RULES THAT SECTION 189A CONSULTATION VIA ZOOM IS FAIR

By Yonela Sicam Monday, June 01, 2020
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On 20 May 2020, Bowmans represented the South African Breweries (Pty) Ltd (SAB) in an urgent application in the Labour Court launched by the Food and Allied Workers Union (FAWU) under section 189A(13) of the Labour Relations Act, 1995 (LRA).

It was alleged that the section 189A consultation procedure engaged by the SAB was procedurally unfair on the basis that the final consultation meetings were held via the Zoom videoconferencing facility without FAWU’s consent and in the absence of facilitation by the Commission for Conciliation, Mediation and Arbitration (CCMA).

FAWU sought an order, among others, declaring that the consultation process was procedurally unfair, and interdicting the SAB from retrenching the employees until such time that a face-to-face facilitated consultation meeting can be held.

Background Facts

In January 2020, the SAB contemplated a restructure which would result in possible large-scale retrenchments. Section 189(3) notices were issued to the consulting parties, which included FAWU, and the SAB requested that a CCMA facilitator be appointed in terms of Section 189A of the LRA.

The CCMA appointed a facilitator and three consultation meetings were held successfully under the auspices of the CCMA. However, on 15 March 2020, the COVID-19 pandemic was declared a national disaster and the president placed a ban on gatherings of over 100 people.

In response to the virus being declared a national disaster, on 17 March 2020, the CCMA issued an urgent directive which, among others, postponed all processes involving face-to-face interactions, with the caveat that certain processes, such as section 189A consultations, could continue in venues other than the CCMA offices, with the consent of all consulting parties.

The SAB proposed that in light of the CCMA directive issued in response to the COVID-19 pandemic, the remaining consultation meeting be held via Zoom, instead of an in-person meeting. Although the CCMA was not averse to remote consultations by way of videoconferencing, FAWU raised objections to the consultations proceeding via Zoom and refused to take part in consultation meetings that were not face-to-face.

On 23 March 2020, a country-wide lockdown was imposed by the President to flatten the curve of the virus. FAWU persisted with its position that they it not participate in consultation meetings until a physical meeting was possible. In response, the CCMA informed the consulting parties that they were unable to facilitate the remaining consultation meetings unless all parties consent to consulting via Zoom.

With FAWU unreasonably withholding consent to further consult via Zoom, the SAB decided to forge ahead and continued consulting with the other consulting party representing non-unionised employees in the absence of FAWU.

The section 189A process was duly finalised in the absence of FAWU and SAB subsequently issued notices of termination to the affected employees. It was at this time that FAWU approached the Labour Court on an urgent basis to rule among others that the continuation of the consultations using the Zoom application (and its absence) was procedurally unfair.  

The Judgment

FAWU placed heavy reliance on the principles in Aunde South Africa (Pty) Ltd and Others v NUMSA, which states that an employer cannot forge ahead with the section 189A process if the consultation period is incomplete.

To this effect, the Court held that this principle was distinguishable from the current matter and therefore could find no application. The Court stated that the LRA does not prescribe the form in which the consultation process must assume. Although it is preferable to have face-to-face consultations, the COVID-19 pandemic has seen remote meetings become the ‘new normal’, in the interest of preserving health and safety and maintaining social distancing.

During the hearing, in an attempt to discredit the use of Zoom, the applicant’s counsel pointed out an instance where SAB’s counsel experienced brief connectivity issues. The Court likened the issue to a projector failing at a physical meeting and emphasised that where technology is employed, regardless of whether the meeting is held physically or remotely, teething problems are expected to emerge. Such an issue cannot render the technology obsolete to the point of procedural unfairness.

The Court held that consultation meetings via Zoom are fair against the backdrop of the COVID-19 pandemic and the ‘new normal’ we find ourselves in. The Court further held that FAWU could not claim procedural unfairness when it had abandoned the consultation process and refused to consult through no fault of the SAB. FAWU’s application was dismissed.

Conclusion

This case is an important one for employers, employees and trade unions engaging in the section 189 consultation process where, due to extraordinary circumstances, face-to-face consultations are not possible.

Effectively, this judgment has found that in the context of the COVID-19 pandemic, where physical consultations were not possible, it is fair to hold consultation proceedings via video conference platforms in the interests of health and safety and to adhere to social distancing.

This judgment has cemented the position that a party who either frustrates or refuses to participate in the consultation process cannot lament on its procedural fairness.