National Education Health and Allied Workers Union (NEHAWU) obo Members and Others v Durban University of Technology (D542/2021) [2021] ZALCD 63 (30 September 2021)

THE LABOUR COURT OF SOUTH AFRICA,

HELD AT DURBAN

Of interest to other judges

Case: D 542/2021

In the matter between:

NATIONAL EDUCATION HEALTH AND First

Applicant

ALLIED WORKERS UNION (NEHAWU)

obo MEMBERS

TERTIARY EDUCATION NATIONAL Second

Applicant

UNION OF SOUTH AFRICA (TENUSA)

NATIONAL TERTIARY EMPLOYEES’ Third

Applicant

UNION (NTEU) obo MEMBERS

And

DURBAN UNIVERSITY OF TECHNOLOGY Respondent

Date of Hearing: 22 September 2021

Date of Judgment: 30 September 2021

This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down judgment is deemed to be 12h00 on 30 September 2021

Summary: (Interdict – urgent – S 189A (13) – claim of procedurally unfair retrenchment – insufficient evidence of procedurally unfair dismissal based on flawed consultation process - application dismissed)

JUDGMENT

LAGRANGE J

Introduction

[1] This is an urgent application under section 189A [13] of the Labour Relations Act[1] , (The LRA) for an order declaring that the dismissal of the individual applicants was procedurally unfair and ordering the reinstatement pending further meaningful consultations in terms of section 189 [2], [5] [6] and section 189A.

[2] The application was heard online using Zoom.

[3] The applicants are three unions acting on behalf of their members employed as academic staff by the respondent [‘the University’]. It should be mentioned that the members were not identified by names in the application, and this could have presented a problem if the outcome was different.

[4] On 1 June 2021, the unions were invited to consultations starting on 18 June over the possible retrenchment of 59 academic staff members. The reason for the anticipated retrenchments was that the University had adopted various strategic goals and objectives from 2009 to 2018 in terms of which it claimed that it was a requirement for all lecturing staff to obtain master’s degrees and some staff had not attained the qualification, whereas the University claimed 99 staff members had done so since 2008. The anticipated date of any retrenchments when the section189 notice was issued was the end of July 2021.

[5] In the last quarter of 2020 some departments issued notices warning staff who did not have master’s degrees that their services would be terminated at the end of the year or at the end of February 2021. The University admits such letters were sent out but claims they were not sent to all staff without master’s degrees but only in certain departments and those letters had not been authorized by the Human Resources department.

[6] In any event, the University agreed to a consent order to the effect that no dismissals would take place at the end of February 2021 on account of a staff member not holding a master’s degree and that it would embark on a consultation process on the need for such persons to obtain a master’s degree in an attempt to reach consensus on the way forward. The process envisaged was to be without prejudice to existing rights either party had.

[7] Five, consultation meetings took place under the auspices of a CCMA facilitator on 21 June, 2, 9, 23 and 30 July 2021.

[8] The applicants claim that at the final meeting the Commissioner summarised the deliberations of the facilitation process thus far and the unions then presented their alternatives to retrenchment, which were “rejected out of hand, without reasons” by the University. The University indicated that the timeframe prescribed for facilitation under section 189A had expired and presented a list confirming the employees who met intended to retrench. The union’s claim that further consultation under the auspices of the facilitation process should have taken place but this was refused by the University. Accordingly, they claim that the University had “manifestly failed to consider viable alternative proposals to its intended cause of action or to respond to them as required in section 189 [6] [a] [b] of the LRA.

[9] The University denies it rejected the alternative proposals out of hand. In respect of a proposal that it provide voluntary severance packages, it explained that its policy did not provide for that. Further, it was not tenable for it to extend the period for obtaining a master’s degree by another three years, after the extensive time staff had been given since the policy was adopted to achieve the necessary qualification. It also had conceded that individual employees who had made representations about the dates when they expected to receive their master’s degrees would not be retrenched if they obtained the degree by the end of December 2021. Ultimately, the number of staff retrenched was reduced from 57 to 31.

[10] The unions also claimed that the University had approached consultations with a predetermined and inflexible point of view and had not engaged in a meaningful joint consensus seeking process as envisaged by section 189 [2] of the LRA. Except for the specific reference about the alleged failure of the University to respond to the union’s alternative proposals made at the end of July, there was no detail provided about the alleged lack of a consensus seeking process, was simply inferred from the applicants’ other allegation that the University had approached the consultations with a fixed purpose.

[11] It is true that the University’s approach to the consultation process was inextricably linked to the strategic direction adopted by it in 2008, which required inter alia that academic staff should hold master’s degrees, and with its view that the full implementation of that policy should not be need to delayed any longer. Nonetheless, in its letter of 1 June 2021 inviting the union’s to consult under section 189 [3] it specifically stated it would consider any proposed reasonable alternatives tabled by the unions during the consultation process.

[12] However, it was only in the fifth and last meeting on 30 July 2021, that the unions specifically proposed alternatives and the University responded to them. On the evidence, they were not dismissed out of hand but reasons were given for rejecting the alternatives, albeit that these were not reduced to writing is terms of s 189(6)(b) of the LRA. From the sketchy outline provided by the applicants of what transpired in the other four meetings, it would appear that two of the meetings were side-tracked by a dispute over the status of Mr L Khumalo as a representative of NEHAWU owing to his dismissal on 22 June 2021. It is not clear from the limited averments in the founding affidavit to what extent the slow progress in the consultation process could be attributed to the University alone.

[13] It is clear that by 7 July the University had responded in great detail to unions’ questions posed in the consultations held on 29 June and 5 July. This is not indicative of a party that was not interested in any serious engagement with the unions. At first blush it might seem that the University had a fixed intent to dismiss academic teaching staff without masters’ degrees, but the significant reduction in the numbers of those actually retrenched, notwithstanding the lack of such qualifications does not bear that contention out. It also shows that the University was open to alternatives to dismissal according to the specific circumstances of some of the staff initially identified.

[14] Employee parties wishing to bring an application under section 189A [13] will often have a demanding task to establish the procedural unfairness of retrenchments.

[15] In cases where there has been a wholesale failure by the employer to engage in the consultation process, or a clear refusal to engage on certain issues which ought to be the subject matter of consultations, the task will be less demanding. However, in those cases where there have been extensive and detailed engagements with the employer over a number of meetings, the founding affidavits must provide sufficiently detailed evidence to substantiate the claim of procedural defects, it is not enough to cite a couple of examples thereof in order to succeed. The court must be in a position to take a view on the consultation process as a whole. It is trite that a mere failure to comply with one or other aspect of section 189 will not automatically render the dismissal unfair. In this case, the fact that the University did not provide a written response to the proposed alternatives but had debated the merits thereof in the last consultation meeting does not, in and of itself, render the retrenchments procedurally unfair.

[16] Where relief in the form of a restoration of the consultative of process is demanded, a court is more likely to be persuaded to grant the same, if issues which specifically require further consultation are also clearly identified as not having been adequately canvassed owing to the employer’s conduct and where the relationship between the parties is such that the prospect of progress in the consultations is not a remote one.

[17] On the evidence provided, there is simply not enough before the court for it to confidently make a finding that the dismissals are procedurally unfair on the basis that the consultation process was significantly defective in material respects on account of the employer’s conduct.

[18] It is noteworthy when reading the founding papers that much more weight is placed by the applicants on the lack of a genuine operational need to retrench academic staff on account of their limited academic qualifications and that the failures identified can be laid at the employer’s door. In that respect, the applicants advanced a number of reasons, based on specific factual averments, why they believe the retrenchments could not be operationally justified. The detailed allegations about substantive unfairness stand in stark contrast to the very limited and sweeping allegations relating to procedural unfairness.

Order

[1] The application is dealt with under section 189A [13] of the Labour Relations Act 66 of 1995 and as one of urgency. Accordingly, the parties’ non-compliance with the Rules of the Labour Court relating to service and time periods is condoned.

[2] The application is dismissed and no order is made as to costs.

Lagrange J

Judge of the Labour Court of South Africa

Appearances/Representatives

For the First and Second Applicants P Schumann instructed by J Phillips Attorneys

For the Third Applicant B

Dyke instructed by Brown, Browde and Vlok Inc.

For the Respondent L

R Naidoo instructed by Edward Nathan Sonnenbergs

[1] 66 of 1995 as Amended