AMCU obo Employees Listed in Annexure FA 1 v Patcon Construction and Civil Engineering Contractors (Pty) Ltd (D1489/17) [2017] ZALCD 24; (2018) 39 ILJ 586 (LC) (13 December 2017)

AMCU obo Employees Listed in Annexure FA 1 v Patcon Construction and Civil Engineering Contractors (Pty) Ltd (D1489/17) [2017] ZALCD 24; (2018) 39 ILJ 586 (LC) (13 December 2017)

The court found that Patcon initiated retrenchment consultations but unduly curtailed the process after the first phase, refusing to engage in further meaningful consultation as required by section 189A(2) of the LRA. The union's communications and attempts to reopen discussions were rebuffed by Patcon, resulting in a procedurally unfair retrenchment process for employees retrenched in September and October 2017. The court held that AMCU had locus standi to represent the listed employees and that the application was in time for those retrenched within 30 days prior to the application. Given the advanced stage of retrenchments, compensation was deemed the appropriate remedy for those...

Citation
[2017] ZALCD 24
Parties
Applicant: AMCU obo THE EMPLOYEES LISTED IN ANNEXURE FA 1; Respondent: PATCON CONSTRUCTION AND CIVIL ENGINEERING CONTRACTORS (PTY) LTD
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
13 December 2017
Case Number
D1489/17
Procedural Posture
Urgent Application / Application in Terms of Section 189 A(13) of the LRA for Relief Regarding Procedural Unfairness in Retrenchment Consultations.
Outcome
Application partially granted. Compensation awarded to employees retrenched in September and October 2017; interdict against further retrenchments for remaining employees for two weeks; partial costs awarded to applicants.
Judges
Lagrange
Legal Topics
Retrenchment Procedure, Section 189a Consultation, Procedural Unfairness, Compensation for Unfair Dismissal
Labour Law Retrenchment Procedure Section 189a Consultation Procedural Unfairness Compensation for Unfair Dismissal

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Parties

AMCU obo THE EMPLOYEES LISTED IN ANNEXURE FA 1

Applicant

PATCON CONSTRUCTION AND CIVIL ENGINEERING CONTRACTORS (PTY) LTD

Respondent

Procedural Posture

Urgent Application / Application in Terms of Section 189 A(13) of the LRA for Relief Regarding Procedural Unfairness in Retrenchment Consultations.

Legal Issues

  1. 1 Whether the respondent complied with a fair consultation procedure as required by section 189A of the LRA.
  2. 2 Whether AMCU had locus standi to represent the employees listed in Annexure FA1.
  3. 3 Whether the application was brought within the time limits prescribed by section 189A(17) of the LRA.

Ratio Decidendi

The court found that Patcon initiated retrenchment consultations but unduly curtailed the process after the first phase, refusing to engage in further meaningful consultation as required by section 189A(2) of the LRA. The union's communications and attempts to reopen discussions were rebuffed by Patcon, resulting in a procedurally unfair retrenchment process for employees retrenched in September and October 2017. The court held that AMCU had locus standi to represent the listed employees and that the application was in time for those retrenched within 30 days prior to the application. Given the advanced stage of retrenchments, compensation was deemed the appropriate remedy for those...

Court Disposition

Application partially granted. Compensation awarded to employees retrenched in September and October 2017; interdict against further retrenchments for remaining employees for two weeks; partial costs awarded to applicants.

Orders

  • The matter is dealt with as one of urgency and forms and service are dispensed with.
  • Within 10 days, the respondent must pay compensation equivalent to four weeks' remuneration at the respective rates of termination to each employee listed in Annexure FA1 retrenched at the end of September or on or about 13 October 2017, or who received notices of termination for operational reasons not more than 30...