Retrenchments. Can Zoom be used as a platform to consultations?

The COVID-19 pandemic is having an unprecedented impact on the South African society. As lockdown restrictions are relieved, South African employers, employer organizations, employees and trade unions are starting to feel the impact on job security. Revenue is down, cash resources depleted and negative cash flow straining business to the extent of many employers potentially having to liquidate. 

National Treasury forecasted millions of employees to lose their jobs because of the COVID-19 Pandemic. In anticipation of the ‘new normal’ after lockdown, many employers are compelled to restructure their businesses during the lockdown period to mitigate and offset the impact of the pandemic on the sustainability of the business.  

Considering that Section 189 of the LRA requires a joint-consensus-seeking consultation process between the employer and the affected parties, one pertinent question asked during this time is whether consultations conducted digitally via video conferencing applications would satisfy the procedural requirements of a fair procedure and weather consultations conducted via these platforms could be done in a meaningful way. Does Sect 189 require face-to- face consultations or could parties resort to digital platforms? 

In Food and Allied Workers Union vs South African Breweries (May 2020), the Labour Court had to deal with this very issue. Due to the outbreak of the COVID-19 pandemic several restrictions were put in place by the government with the purpose of ‘flattening the curve’ of the infection rate. Naturally, these restrictions had an impact on the way things are normally done. During a Section 189A process, facilitation commenced in January 2020. The applicant’s concerns could be summarised as follows; a) an issue with the number of the affected employees, which influenced the timing of the dismissals, b) the acceptance of the organogram and c) the continuation of the facilitated consultation using the Zoom application.  

The relief sought by the applicant was, in essence, that the court find that the process was procedurally unfair, to interdict or restraint the employer from continuing the consultation process without the physical attendance of the applicant’s representatives. During January 2020, the SAB restructured its business, which prompted it to contemplate dismissals based on its operational requirements. A Section 189 (3) notice was issued. Considering the number of employees affected, SAB requested facilitation of the consultation process. A facilitator was appointed. A few meetings were facilitated without any hindrance.  

Subsequently to the lockdown, which impacted the facilitation process, it was proposed that the consultation process continued via zoom. The union was annoyed at the proposal, which ultimately saw the facilitator recusing himself from the process. A new facilitator was appointed. Due to the restrictive measures, a new timetable was agreed upon, with a facilitated meeting scheduled for the 25th of March that became the ‘straw that broke the camel’s back’. 

Proposals were made that facilitation continued via the zoom application or that the processed be canned until the restrictions are removed. The applicant opted for the proposal of canning the process until the end of the lockdown period. Due to the impasse, the applicant did not further participate in the process, which ultimately led to the urgent application at the Labour Court. During February /March correspondence was exchanged that there was a need to further consult on the organogram that was proposed by SAB. During the consultation process, the SAB populated the structure and employees were requested to express interest. 

The court noted that the LRA does not afford the phrase ‘procedural fairness’ a specific meaning and as such, any person, in terms of Sect 188 (2) who needs to consider whether or not a dismissal was effected in accordance with a fair procedure, is obliged to take into account and relevant code of good practice issued in terms of the LRA. The code of good practice on retrenchments does not do much more than referring back to the provisions of Section 189 and Section 189A of the LRA and suggests that a consultation would be regarded as proper if an opportunity to meet and report back to employees were provided, that the request, receipt of information and consideration thereof were provided.

 Accepting Section 189 and 189A as the legal framework, the court noted that Section 189 (6) (b) observes traces of a consultation by correspondence (‘..representations made in writing must be responded to in writing..’). It would not be contentious to conclude then that a consultation process could be fairly undertaken via correspondence. The current difficulty, however, is that normally consultations takes a form of physical meetings, but, when the new normal presents itself, it does not follow that the required consultations can no longer happen. 

The court stated:

 “With the new normal, lockdown period during COVID-19 pandemic-zoom is the appropriate form in which meetings can take place. What is involved in this period is the health and safety issue. Thus, the usage of the zoom application is not panoply. It is a necessary tool to ensure that the restrictions like social distancing as a measure to avoid the spread of the virus are observed. Much as the applicant has its convenient preferences, those preferences are self-serving and are ignorant of the bigger issue of health and safety. Therefore, in my view, there is nothing procedurally unfair if a consulting party suggests the usage of the zoom application or some other form of video conferencing. This accords with the new normal and is actually fair.”

 Further, the court responded to a technical issue raised by the applicant that during the zoom consultation that at one stage Mr van As’s screen hanged due to his connectivity being compromised. In response the judge stated that anywhere where technology is employed, even in physical meetings, where presentations are made that teething problems may emerge. However, such would not relegate the technology to obsoleteness to a point of any form of unfairness.  

The conclusion the court found that the applicant refused to participate in the consultation process at no fault of SAB. The applicant chose to abandon the process for usage of a fair application of zoom.

 The court dismissed the application. 

What we learn from this case is that Section 189 and 189A is considered the legal framework within which the fairness of a retrenchment procedure should be considered. Within this framework the LRA does not deny the use of digital technology and applications to conduct consultations. Section 189 (6) (b) supports the notion that consultations can be done via correspondence and as such face-to-face-consultations are not a legislative requirement. One should, however, be considered that the context of this judgement is that consultations via zoom are fair in our current COVID-19 conditions and our ‘new normal’. Could an employer consult via digital applications once the pandemic has subsided? It is my view that considering that the LRA does not prescribe to a consultation platform, that the essence of a fair procedure is one that is confined to the legal framework and that is meaningful.

It is advisable for employers to ask for the assistance of a professional Labour Relations Specialist when facing employment law difficulties. Tobie Nel is the Managing Director for Effectus Harmony (Pty) Ltd and has over 15 years’ experience in Labour Law. You can contact him, by phone: 0824479512, by email: [email protected]