Our courts have held that under lockdown conditions it is practical and indeed desirable that consultations between employers, employees and trade unions can take place via platforms like Zoom and Skype, as long as consulting parties have the necessary tools to meaningfully participate in this manner.
In the recent Labour Court matter of Food and Allied Workers Union (“FAWU”) v South African Breweries and another, South African Breweries (“SAB”) contemplated large-scale retrenchments, and issued a notice in terms of section 189(3) of the Labour Relations Act, 1995 (“LRA”) commencing consultations.
Because of the Coronavirus (COVID-19) and to adhere to the health protocols imposed by the State, SAB proposed that consultations continue via the videoconferencing application, Zoom. FAWU adopted the position that it could not consult via Zoom and that the consultations could only resume once the national lockdown had been uplifted.
SAB nevertheless continued consultations with the remaining consulting parties, and FAWU did not attend these e-consultations. FAWU then launched an application in terms of section 189A (13) of the LRA, seeking an order, inter alia, that in continuing consultation via Zoom, SAB had acted in a procedurally unfair manner.
Moshoana J held that the LRA does not prescribe the form in which consultations must take place. The LRA even allows for consultation to occur exclusively via correspondence. The court noted that the COVID-19 pandemic meant that a new normal had to be adopted. The issue of contention was that consultations were normally held in the form of physical meetings and whether the absence of following that specific format rendered the consultations procedurally unfair.
The court held that in the present circumstances, applications such as Zoom must be used to ensure that health and safety of individuals are maintained. The irony that the urgent application launched by FAWU was heard by the Labour Court via Zoom was not lost on the court. The use of Zoom or similar applications for the purposes of consultations in terms of section 189 does not render the consultation process procedurally unfair.
Insofar as FAWU had refused to participate in the consultations via videoconferencing facilities, the Labour Court reiterated the principles that were articulated by the Labour Appeal Court in the matter of SAA v Bogopa and others: 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.
Considering the above, the court dismissed FAWU’s application.