s189 Video Consultations – Labour Law In A Nutshell March 2021
s189 Video Consultations: Is it legally acceptable to conduct s189 retrenchment consultations by video conferencing?
Yes – said the Labour Court in Food and Allied Workers Union (FAWU) v South African Breweries.
SAB had started a restructuring process in January 2020. They opted for CCMA facilitation due to the large number of employees who were potentially affected. The parties agreed to a facilitation timetable of in-person meetings with the facilitator. Soon after the process started, the President announced the Level 5 national lock-down. This made the in-person meetings impossible.
The parties were left with only two options: to postpone the consultations until the lockdown was lifted or to conduct the rest of the consultation meetings by video conferencing. The facilitator proposed video conferencing. The union rejected the proposal so strongly that the facilitator recused himself and another one had to be appointed.
When the union flatly refused to participate in the video consultations on Zoom, the company proceeded in its absence. They began to populate the new structure and issued notices of termination to affected employees.
The union brought an urgent application to the Labour Court to stop the consultations being conducted on the video platform. They complained that it was procedurally unfair to conduct the consultations online by video instead of in-person with the union officials. This was because the technology was inefficient and unreliable and that it could not replace physical consultation.
The Labour Court had to decide if it was appropriate for parties to conduct s189 retrenchment consultations by video conferencing during the lockdown period. In deciding that it is an appropriate and fair means to conduct the consultations. It made several observations –
- Section 189 of the LRA does not prescribe the form that consultation must take. In fact, section 189(6)(b) suggests that the process could be conducted by correspondence.
- Parties have to adapt to the new circumstances and embrace the use of technology to deal with health and safety concerns in the time of COVID-19.
- They need to accept that this is sure to be the new normal for some time.
- Teething problems with connectivity and other issues were to be expected and should not be used as a reason to reject the use of the technology.
(J435/20)  ZALCJHB 92; (2020) 41 ILJ 2652 (LC) (28 May 2020)
Source: Article in Labour Law Guide by Jose Jorge, Director and Chanté du Plessis, Candidate Attorney, Employment, Cliffe Dekker Hofmeyr
Edited by Sarah Christie
- Video conferencing is a necessary tool to assist parties to comply with Covid restrictions like social distancing as a measure to avoid the spread of the virus.
- Video conferencing has become the “new normal” method of conducting consultations and other legal processes during the lockdown. It offers a meaningful way for parties to conduct consultations as envisaged by s189.
- The union’s insistence on physical consultations was self-serving and ignorant of the bigger issue of health and safety.
- The union had unreasonably refused to participate in the process on the Zoom video facility. It was not the company’s fault that the union chose to abandon the process.
- The company was entitled to proceed with the restructuring process on the video conferencing platform to completion without the union’s participation.
TIP: The courts have accepted that the use of video conferencing to conduct legal processes such as s189 retrenchment consultations has become the “new normal”. This implies that the use of online communication video and other technology will long outlive Covid restrictions. In the short term, it’ll help to protect us from health risks during the pandemic. In the long-term, its value in drastically cutting down the costs of travel and time will continue to expand its use as the go-to method of conducting workplace and social engagements. There’ll have to be an exceptional reason to justify a refusal to embrace the new normal.
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