South African Communication Union and Another v Telkom SA SOC Ltd (J203/2020) [2020] ZALCJHB 56; (2020) 41 ILJ 1425 (LC) (5 March 2020)

South African Communication Union and Another v Telkom SA SOC Ltd (J203/2020) [2020] ZALCJHB 56; (2020) 41 ILJ 1425 (LC) (5 March 2020)

The court found that Telkom did not fundamentally obstruct or prevent a fair consultation process. Section 189(3) does not prescribe a rigid sequence for consultation topics, and parties are obliged to consult on alternatives to retrenchment even if consensus on the rationale has not been reached. The Alliance unions' refusal to engage on voluntary severance packages until other topics were exhausted constituted the real stumbling block to consultation. Telkom was willing to consult on VSPs and the rationale in parallel, and only proceeded to open VSP applications after the unions declared a deadlock. The court held that there was no material failure by Telkom to comply with a fair...

Citation
[2020] ZALCJHB 56
Parties
Applicant: South African Communication Union; Applicant: Communication Workers Union; Respondent: Telkom SA SOC Ltd; Respondent: Abdul Carrim Osman n.o.; Respondent: Commission for Conciliation, Mediation & Arbitration; Respondent: National Union of Metalworkers of South Africa; Respondent: Solidarity; Respondent: Information Communication Technology Union
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
5 March 2020
Case Number
J203/2020
Procedural Posture
Urgent Application / Application Under Section 189 A(13) for Urgent Interdict During Retrenchment Consultation Process
Outcome
Application dismissed.
Judges
R G Lagrange
Legal Topics
Retrenchment Consultation, Section 189a Procedure, Voluntary Severance Packages, Procedural Fairness, Urgent Interdict
Labour Law Civil Procedure Retrenchment Consultation Section 189a Procedure Voluntary Severance Packages Procedural Fairness Urgent Interdict

Case Brief

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Parties

South African Communication Union

Applicant

Communication Workers Union

Applicant

Telkom SA SOC Ltd

Respondent

Abdul Carrim Osman n.o.

Respondent

Commission for Conciliation, Mediation & Arbitration

Respondent

National Union of Metalworkers of South Africa

Respondent

Solidarity

Respondent

Information Communication Technology Union

Respondent

Procedural Posture

Urgent Application / Application Under Section 189 A(13) for Urgent Interdict During Retrenchment Consultation Process

Legal Issues

  1. 1 Whether Telkom failed to comply with a fair procedure in the retrenchment consultation process under section 189A(13).
  2. 2 Whether the employer was obliged to consult on voluntary severance packages only after consensus or impasse on the rationale for retrenchment.
  3. 3 Whether the timing of offering voluntary severance packages rendered the consultation process procedurally unfair.

Ratio Decidendi

The court found that Telkom did not fundamentally obstruct or prevent a fair consultation process. Section 189(3) does not prescribe a rigid sequence for consultation topics, and parties are obliged to consult on alternatives to retrenchment even if consensus on the rationale has not been reached. The Alliance unions' refusal to engage on voluntary severance packages until other topics were exhausted constituted the real stumbling block to consultation. Telkom was willing to consult on VSPs and the rationale in parallel, and only proceeded to open VSP applications after the unions declared a deadlock. The court held that there was no material failure by Telkom to comply with a fair...

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.
  • No order is made as to costs.