Has the Horse bolted? Section 189A Facilitation, when has been a sufficient consultation and what remedies are available?

This question can be rephrased to be whether there was compliance with all of the subsections of section 189. The following caselaw can be cited and discussed with the parties to provide insight:

THE CONSTITUTIONAL COURT CASE

The labour Court case Solidarity obo Members and Another v Barloworld Equipment but for a single error was, not altogether set side by the Constitutional Court. Therefore, it is also discussed here because it provides far more insight into the eventual Constitutional Court judgement.

The Honourable Judge Moshoane echoed his findings in the TAWUSA case to a large extent. In addition to what was stated in the TAWUSA case, the Labour Court held as follows:

? the Court pointed out that section 189(2) uses the word ‘engage’ and not ‘consultation’. It cited the definition of engage ‘to occupy oneself; become involved’, finding that engagement must be done by the employer and the consulting party. Therefore, the engagement as a process is not the duty of the employer alone.

? The labour Court went on to hold that the Court held that the issue is a simple one: did the employer comply with its statutory obligations or not.?

? Section 189A(13) does not make any reference to procedural fairness but a consulting party may approach the Labour Court by way of an application for an order compelling the employer to comply with a fair procedure. The court made a distinction and emphasised let this distinction was material namely that there was a difference Between the concept of procedural fairness in compliance.

? According to judge Moshoane the procedural fairness concept, is wider as opposed to compliance. To adjudicate procedural fairness disputes under section 189A (13) it would be ultra vires.

? In writer’s view the apparent rationale for this is that an application for an interdict to compel was not designed to extensively examine procedural fairness of a retrenchment but to get consultation back on track as soon as possible.

? The judge stated in relation mass retrenchment that the legislature deliberately removed the powers to adjudicate procedural fairness and introduced a quick and less complicated application to compel an employer to comply. The issue is a simple one: did the employer comply with its statutory obligations or not. As when an employer may be obligated by a collective agreement to do certain things, and if an employer fails to do so, a consulting party may approach the Labour Court for an order to compel.

? The court explained that the statutory obligation was similar to that in section 23 of the LRA regarding enforcement of collective agreements.

? The primary relief in section 189A (13) is that of compelling compliance, before horse has bolted. Thereafter it serves little or no purpose to make an order to compel and/or interdict. Even temporary reinstatement would not assist.

? He added that as much as section 189A (17)(a) provides an ‘outer’ time frame, applications of this nature ought to be brought earlier than that if the purpose of section 189A(13) is to be served – to bring the consulting parties back on track.

? The Labour Court held that section 189(2) of the LRA employs the word ‘engage’ and not ‘consultation’. The word engage according to the Court also means to occupy oneself or become involved.

? It held that the consultation envisaged in section 189(1) is an engagement. That engagement must be done by the employer and the consulting party. Therefore, the engagement as a process is not the duty of the employer alone.

However, this was not the last Court. The matter came before the Constitutional Court in November 2021 and the decision was handed down in May 2022:

The following is an extract from a media release by the Constitutional Court on this case which is significant and is quotes in full here because all of it is important and relevant to this answer. However, the more pertinent aspects are highlighted in bold:

‘The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Friday, 6 May 2022 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against a judgment of the Labour Court that dismissed an application brought in terms of section 189A(13) of the Labour Relations Act (LRA). That application was brought on the basis that the first respondent had dismissed certain employees after engaging in retrenchment consultations, pursuant to section 189 and 189A of the LRA, which were allegedly flawed. The application for leave to appeal against the order of the Labour Court was dismissed by both the Labour Court and the Labour Appeal Court, and the applicant consequently approached the Constitutional Court for relief on the basis that the Labour Court erred in its interpretation of the relevant law.

In the proceedings before this Court, the applicant is Solidarity, a trade union acting on behalf of its members who are the former employees of the first respondent, Barloworld Equipment Southern Africa (“Barloworld”). The fifth respondent, National Union of Metalworkers of South Africa (NUMSA), was the second applicant in the proceedings in the Labour Court, but has not participated in the appeals process.

On 27 April 2020, Barloworld sent a notice to Solidarity’s members relating to the restructuring of its operations as a result of the impact of Covid-19. Shortly thereafter, Barloworld lodged a request with the CCMA for it to facilitate a joint consensus-seeking process between the affected parties and Barloworld. The goal of that process was to find alternative solutions to restructuring, with dismissal being the last resort.

The parties embarked on the consultation process, during which a number of disagreements arose in relation to Barloworld’s proposed restructuring plan. In these proceedings, the most controversial issue pertained to the selection criteria that was proposed, and ultimately adopted, by Barloworld. Notwithstanding Solidarity’s objections to the inclusion of transformation as a component of the selection criteria and its complaint that proper consultation had not taken place in relation to this criterion, Barloworld proceeded to terminate the employment of Solidarity’s members after the consultation period had expired.

Approximately a month after Barloworld began issuing termination notices, Solidarity and NUMSA approached the Labour Court in separate applications alleging procedural irregularities in relation to the consultation process. The two applications were consolidated, and the Labour Court dealt with them in one judgment. Solidarity based its application on the ground that Barloworld failed to consult over its selection criteria, which included transformation. Further, Solidarity argued that transformation was an unlawful and unfair selection criterion, and it accordingly sought an order compelling the parties to return to the consultation process.

The Labour Court reasoned that in terms of section 189A(18) of the LRA, the Labour Court “is precluded from adjudicating disputes about the procedural fairness of a dismissal based on the employer’s operational requirements”. The Court noted that there is a misconceived view that the Labour Court does have jurisdiction in such matters pursuant to section 189A(13) of the LRA. The Court held that this view is plainly incorrect because section 189A(13) specifically and narrowly provides for a party to approach the Court where an employer does not comply with a fair procedure. It accordingly held that the Labour Court’s jurisdiction is ousted in matters where it is called upon to adjudicate the procedural fairness of a dismissal based on the employer’s operational requirements. The Labour Court further held that the LRA does not leave the consulting parties without a remedy or permit the employer to do whatever it wishes during the consultation process. Rather, it permits a facilitator to be appointed in order to facilitate a joint consensus-seeking process. In addition, employees retain their constitutional right to strike over issues arising from procedural fairness throughout the consultation process.

The Labour Court concluded that the issues raised did not pertain to Barloworld’s failure to comply with a fair procedure, but rather general issues relating to procedural fairness and, to a large extent, substantive fairness. In dealing with Solidarity’s complaints about the selection criteria, the Labour Court held that the evidence revealed that these complaints related to substance and not form, because they were predicated upon Solidarity’s dissatisfaction with the manner in which the parties consulted on the selection criteria. The Labour Court accordingly held that it was inappropriate for Solidarity to frame this issue as a dispute under section 189A(13), and thus declined to grant the relief sought by Solidarity. The Court further held that the remedy envisaged by section 189A(13) was no longer available since the consultation process had been concluded and the proverbial horse had bolted.

The Labour Court also held that the requirements of law and fairness dictated that an award of costs against Solidarity and NUMSA was apposite in the circumstances, because their applications amounted to an abuse of court process.

Solidarity’s application for leave to appeal to the Labour Appeal Court was dismissed by both the Labour Court and the Labour Appeal Court, on the basis that the application lacked reasonable prospects of success.

Solidarity accordingly sought leave to appeal to the Constitutional Court, and submitted that this matter engages the Court’s jurisdiction as it concerns the proper interpretation of section 189A(13) of the LRA, which implicates the constitutional right to fair labour practices. Further, Solidarity submitted that these issues are not confined to the parties involved, but are relevant to the whole labour force and other future employment relationships. It submitted that a pronouncement by the Constitutional Court that will provide certainty and finality on the interpretation of section 189A(13) is in the public interest and warrants a determination by this Court.

On the merits, Solidarity argued that the distinction drawn by the Labour Court between a “fair procedure” and “procedural fairness” is superficial and unsupported by judicial precedent and the plain wording of the LRA. Furthermore, Solidarity submitted that there was no meaningful consultation on the selection criteria and the criterion of transformation. In argued that the issues it raised fell squarely within the ambit of section 189A(13).

Solidarity also challenged the reasons given by the Labour Court in justifying a costs order. It argued that trade unions are non-profit organisations, now mulcted in costs in a matter where constitutional issues arose and, furthermore, where general unfairness in the process existed and where there was patently no malice or vexatious conduct in bringing the application. Solidarity accordingly sought an order upholding its application for leave to appeal against the Labour Court’s order, and that costs in this matter be costs in the appeal.

Barloworld opposed Solidarity’s application and submitted that this matter does not raise a constitutional issue nor does it raise an arguable point of law of general public importance that ought to be considered by the Constitutional Court. Furthermore, it submitted that the application has no reasonable prospects of success and is, in any event, moot by virtue of the fact that it has been brought too late to obtain the relief envisaged by section 189A(13), which is aimed at restoring the consultation process. It submitted that the application for leave to appeal should be refused.

On the merits, Barloworld argued that Solidarity does not deny that it was consulted on the selection criteria and that the use of transformation as a selection criterion in a retrenchment exercise is not completely outlawed. Barloworld therefore submitted that whether the selection criteria were fair, or were fairly applied, is a matter for determination at a trial on the substantive fairness of the dismissals, and not through the mechanism created by section 189A(13). It further submitted that other arguments raised by Solidarity concern factual issues that do not engage the Constitutional Court’s jurisdiction.

Barloworld argued that the Labour Court’s costs order is unassailable, because that Court provided sufficient reasons for exercising its discretion to award costs in a labour matter.

In a unanimous judgment penned by Tshiqi J, the Court held that this Court’s jurisdiction is engaged because the matter concerns interpretative issues flowing from the application of sections 189 and 189A of the LRA, which issues will undoubtedly impact the labour rights of many South Africans. The Court held that the Labour Court was correct in holding that there was adequate consultation between the parties because Solidarity’s primary complaint relates to the inclusion of transformation as part of the selection criteria matrix and to the fact that there was no agreement between the parties.

The Court held that on the evidence before it, Barloworld genuinely and meaningfully considered the representations made by Solidarity. The Court further held that Solidarity persistently rejected the inclusion of transformation, with the effect that the parties dead-locked. There is no requirement in our jurisprudence requiring that there should be an agreement in consultations. The Court further held that Solidarity could approach the Labour Court to adjudicate on the substantive fairness of its inclusion in the criteria.

The Court further held that the Labour Court erred in drawing a distinction between disputes about procedural fairness and those relating to compliance with a fair procedure.

The Court held that the Labour Court’s costs order was unwarranted and had no basis as the issues raised in the applications before were indeed arguable and did not amount to an abuse of court process.

Accordingly, the Court granted leave to appeal, dismissed the appeal on its merits and set aside the Labour Court’s costs order.

THE OBLIGATION IS ON THE EMPLOYER BUT THE CONSULTATION PROCESS ENGAGES BOTH PARTIES AS A UNIT

In FAWU v South African Breweries (Pty) Ltd it was held that in circumstances where a trade union abandons the process due to no fault of the employer, the dismissal cannot be said to be procedurally unfair if the employee is subsequently dismissed without the consultation process having been completed.

In TAWUSA & Another v Barloworld Transport (Pty) Ltd Judge Moshoana dealt with the purpose of section 189A(13). and held:

? The role of the Labour Court is supervisory paying careful attention to the statutory obligations of the consulting parties.

? The point of departure in relation to the duty to consult is the provisions of section 189(1) which obligates an employer to consult once it contemplates dismissing one or more employees for reasons based on its operational requirements. The dictionary meaning of the word consult is to seek advice or information, meaning the statutory obligation is to seek advice or information before dismissing.

? According to the court it was not a matter of how the process should happen but what must happen in the process. The employer and consulting parties must engage in a meaningful joint consensus-seeking process, to attempt to reach consensus on the issues listed in section 189(2).

? The court found that this was where the difficulty arises in respect what the meaning of ‘meaningful joint consensus-seeking process’ is. Thel labour Court concluded that the intention of the legislature with this phrase is to oblige the employer and the employee forum or representatives to purposefully share an agreement searching process.

? The employer commences the consultation process by issuing a letter in terms of section 189(3). The focal point thereafter is on the consulting parties as a unit. Consultation is a shared process and in performing its supervisory task, the Labour Court does not only consider what the employer does in the process but looks at the conduct of the consulting parties as a unit.

COMPLIANCE WITH SECTION 189

To determine whether there has been compliance is therefore determined by the statutory obligations on an employer imposed in terms of section 189, subsection by subsection. Where a subsection has already been discussed elsewhere it is mentioned but the full discussion not regurgitated.

Section 189 (1)

In this regard the question to be answered will be was the consultation contemporaneously with contemplation of possible dismissals. This aspect is discussed more fully in the answer to question one above.

In this case study, apart from a consideration of the aspect relating to the contemplation element discussed elsewhere in the assignment it appears that the newspaper has consulted with the relevant registered trade union.

S189(2) MEANING OF SUFFICIENT CONSULTATION:

The Cambridge Dictionary defines consultation as: a meeting to discuss something or to get advice.

In writer’s view the latter part already provides insight. The employees and their representatives are consulted with for advice. The emphasis is on a two-way flow of ideas not simply presentation by the employer. That is the crux: meaningfulness follows because of openness to accept and consideration of ideas from the other party.

Has the employer engaged in a meaningful joint consensus seeking process?

In this regard formal participation would mean abiding with the full period provided after the date of the notice in terms of Section 189(3) being 60 days and attending all meetings with full cooperation.

It is crucial that this is not just to arrive and fill in an attendance register. The participation has to be meaningful. That will be determined by the compliance with the further requirements of Sectio 189.

The author Wiener has stated that employers in her words ‘should be open and helpful… as a sign of bargaining in good faith.’

Another question would be has the party avoided as far as possible declaring dispute and rather focused on consulting to avoid a dispute arising.

The meaning of sufficient consultation can be described as participating in a trust building dialogue.

The writer’s view is that this implies meaningful joint consensus seeking interaction and dialogue. It implies an open line of communication between the consulting parties facilitated by the facilitator.

It will also mean parties with the aid of facilitator have been able to overcome their initial inhibitions which are usually:

o Scepticism from labour on the need to dismiss; and

o Resentment from the employer arising from its prerogative to respond to market conditions competitively and speedily.

S189(3)

Has the employer given written notice with all the information necessary. This aspect has already and more fully been discussed above in section (a).

COOPERATION IN FACILITATION

Section 189(4)

Have all the question contained in Section 189(3) been addressed: Has this included the reason for the operational dilemma, Selection criteria, Severance, and Alternatives.

Has the employer cooperated with and or abided by any Ruling in terms of Section 16 by the facilitator.?

Section 189(5)

Has the employer allowed an opportunity for representations from the other consulting party on the peremptory issues outlined by subsections (2) and (3)?

If they are made in writing has the employer responded in writing?

S189(7)

Has sufficient emphasis and engagement occurred in regard to Selection criteria.?

This has been extensively considered in the discussion of the Solidarity case in the Constitutional Court decision.

It remains to ask the consulting parties whether all questions and alternatives have been responded to with reasons.

THE REMEDY

In the light thereof that it has been established that there is an obligation on both parties effectively to engage as a unit either party has as a remedy where what section 189 has required to be engaged on has not been adhered to.

Any party who believes this has not occurred may in those circumstances apply to Court for interdict or in the case of facilitation a mandamus which is a positive directive in terms of Section 189A(13).

The Constitutional Court judgement of Basson AJ in Steenkamp and Others v Edcon Limited where it was said:

“It is clear that where a facilitator is appointed the consultation process is bound to be effective and enhanced. Ideally, this Court does not expect procedural lapses and/or complaints where a facilitator is involved. The point I wish to put forward is that in a facilitated process, this Court expects less of section 189A (13) applications due regard being had to the powers of the facilitator and above all the expertise “

The Courts on more than one occasion is echoed this indication given by the constitutional court by including in the dictum that not every process related irregularity need to be referred to the Labour Court but dealt with by the facilitator. Because a facilitator is merely a creature of statute the view of the writer is that this would be purely as manager of the process.

See in this regard Transport and Allied Workers’ Union of South Africa (TAWUSA) and Another v Barloworld Transport (Pty) Ltd which held:

? ‘A party can only approach the Labour Court in terms of section 189A(13) if an employer does not comply with a fair procedure. If the employer (a) consults once it contemplates to dismiss for operational reasons; (b) invites the other consulting party in writing; (c) allows the other consulting party an opportunity during consultation to make representations and (d) considers and responds to the representations made, then that would constitute a fair procedure as required in terms of section 189. Once CCMA facilitation is invoked, it then becomes the role of the CCMA facilitator and not the Labour Court, to ensure that the statutory obligations are complied with by the employer.’

According to the Courts challenges can and ought to be brought on an urgent basis in the Labour Court in terms of section 189A(13).

It should be done as soon as the alleged irregularity arises in interests of both parties and not at the latest opportunity, which can, as a consequence, result in the aims of this process being undermined. Or as the honourable J Moshoane labelled it before the horse has already bolted.

The following aspects arose from the judgement in TAWUSA & Another v Barloworld Transport (Pty) Ltd :

There is an interpretative tension between subsections 189A(13) and (17) of the LRA regarding when a consulting party should approach the Labour Court. Section 189A(13) of the LRA states that if an employer does not comply with a fair procedure, a consulting party may approach the Labour Court by way of an application. Section 189A(17) states that an application in terms of subsection (13) must be brought not later than 30 days after the employer has given notice to terminate the employee’s services or, if notice is not given, the date on which the employees are dismissed.

In order to resolve the tension, one must have regard to the purpose of section 189A(13), which is to bring the consulting parties back on track. Therefore, section 189A(17) must be afforded an interpretation that accords with the purpose of the intervention in subsection (13). That is to say, the application must be launched once an irregularity arises, and a consulting party should not simply wait for a termination notice and/or dismissal – the last opportunity.

If the issues raised by TAWUSA and SATAWU were procedural in nature they ought to have been brought before the Labour Court shortly after they were not answered satisfactorily in order to bring the process back on track.

In addition, given the powers of the CCMA facilitator, any irregularity ought to have been raised with the CCMA facilitator.

Writer’s view is that this is limited to the element of participation and meaningful engagement, but the Constitutional Court has not upheld Judge Moshoane’s distinction between procedural fairness and fair procedure.

In writer’s view this does create a dilemma for a facilitator who is a creature of statute. The statute which creates the role of a facilitator makes it clear that fairness of a dismissal where it involves a large scale retrenchment or multiple employees who are not employed by a small to medium enterprise, is the exclusive domain of the jurisdiction of the Labour Court.

Is the Constitutional Court making it the duty of this creature of statute to manage the process and issue directives in order to ensure procedural fairness? This is a question that begs to be answered. More importantly is judge Moshoane in the Solidarity case correct to assume that where a facilitation process has been properly conducted and engaged in by both parties, there can apparently be no question of procedural unfairness?

Writer’s view is, that only in circumstances where the ‘with prejudice’ record of a facilitation record provides a sufficient basis to allege that there has been a failure to comply with the facilitation requirements and obligations to engage meaningfully on all relevant information, that the matter may be referred to the Labour Court alleging procedural unfairness.

It is important to point out that such a referral will not be in terms of section 189A(13) but under section 188 (1) (a) (ii).

CONCLUSION

The overarching rationale behind all of these requirements and case law remains the same.

It stems from the ILO Convention and Recommendation which was echoed in section 189 of the LRA, the Code Of Good Practise, and the Regulations that apply to Facilitations.

This has been stated several times and the more relevant aspect is the element of meaningful engagement on all aspects that are relevant.

The remedy provided in terms of section 189A(13) is designed not to assess procedural fairness but as an urgent intervention by the labour Court to ‘get the parties back on track’ that is to say back to the facilitation or whatever consultation process is in motion in order themselves to drill down meaningfully not only on the ‘why we are here question’ but also the ‘what can we do about saving the company and or saving as many jobs as possible’ question, before the proverbial ‘horse bolts’.