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Labour Court gives Zoom retrenchment consultations the thumbs up

Updated: Jul 3, 2020

In retrenchment processes, the employer has a duty to consult with employees on a number of factors as set out in the Labour Relations Act (“LRA”).

In Food and Allied Workers Union (FAWU) v South African Breweries (Pty) Ltd (SAB) (J435/20) [2020] SALCJHB 92 (28 May 2020) SAB embarked upon a business restructure and issued a section 189(3) notice to the affected employees. A facilitator was appointed by the CCMA and the consultation process commenced.

Following the declaration of the state of disaster by the President, the CCMA proposed some methods by which the facilitated process could continue, one of which was through the zoom platform. The union took umbrage with the facilitation process proceeding in that fashion and opted to rather abandon the process until the end of the lockdown period.

SAB issued termination notices between 25 and 30 April 2020 which prompted the union to bring an urgent application to have the consultation process declared unfair and to interdict SAB from concluding the consultation process “without the physical attendance of the [union] representatives in such facilitated consultation process.”

The union complained that zoom was not an appropriate forum due to the fact that there could be connectivity issues or ‘hanging’ screens. The Judge dismissed this by saying even in physical meetings technology can be problematic, such as where a projector fails. The mere fact that there may be technical difficulties to overcome does not render the process unfair.

The Judge pointed out that the Labour Relations Act does not prescribe the form in which the consultation process should take place and that section 189(6)(b) of the LRA even allows for consultation to occur by means of correspondence. Whilst consultations ordinarily take place through physical meetings, this was not possible in light of the need for social distancing.

The Judge found that there is no procedural unfairness if a “consulting party suggests the usage of the zoom application or some other form of video conferencing.” Video conferencing is an important tool to ensure that social distancing and other restrictions can be observed.

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