South African Transport and Allied Workers Union (SATAWU) and Another v Fidelity Security Services (Pty) (JS 284/14) [2022] ZALCJHB 11 (1 February 2022)

Not Reportable

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Case No: JS 284/14

In the matter between:

SOUTH AFRICAN TRANSPORT AND ALLIED

WORKERS UNION (SATAWU)

First Applicant

LEGAGANE AND TWO OTHERS Second

Applicants

and

FIDELITY SECURITY SERVICES (PTY) LTD

Respondent

Decided: In chambers

Delivered: 01 February 2022 (In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be on 01 February 2022)

JUDGMENT –LEAVE TO APPEAL

NHLAPO, AJ

[1] What serves before me is an application for leave to appeal against the judgment and order of this Court handed down on 01 June 2020. There is also a condonation application for the late application for leave to appeal. The reasons provided for the lateness are accepted and thus condonation is granted.

[2] This case is concerned with the hierarchy of the consultative process set out in section 189(1) of the Labour Relations Act[1] (LRA),[2] the various items on which parties are to consult as well as the issue of substantive fairness of a dismissal based on operational requirements.

[3] The applicant Fidelity Security Services (PTY) LTD (FSS) contends that this Court erred in considering the hierarchy created in section 189(1) when I ought to have accepted Keevy’s uncontested evidence that the employees indicated at the first and second meeting that they are neither members of a trade union, nor did they want their union involved.

[4] The FSS further states that it would have been a gross violation of the employee’s constitutional rights to force them to engage their trade union after they elected not to do so, as they have a right to associate with whoever they wish.

[5] The Constitutional Court in Association of Mineworkers and Construction and Others v Royal Bafokeng Platinum Limited and Others[3] (AMCU) stated as follows in the majority judgement:

“[108] The procedural requirements for a fair consultative process are set out in section 189 of the LRA. Since the introduction of the LRA, as will be shown below, our jurisprudence has consistently interpreted section 189 to exclude any requirement of individual or parallel consultation in the retrenchment process outside the confines of the hierarchy created in section 189(1).”

[6] Furthermore, the Constitutional Court referred to a number of decisions of this Court in order to give meaning to the hierarchy provided for in section 189(1) of the LRA. One of the important decisions referred to is that of Sikhosana and Others v Sasol Synthetic Fuels[4], where it was held:

“It is impossible to believe that this hierarchy of obligations is anything but intentional: care has too obviously been taken in the choice of language to permit the conditional clauses to be dismissed as mere rhetorical flourishes. The interpreter is driven to the conclusion, therefore, that an employer, to satisfy [its] obligations under the sub-section, need only consult the employees likely to be affected by the proposed dismissal (or their representatives) if there is no registered union whose members are likely to be affected by the dismissal, no workplace forum in the workplace in which the dismissal might occur and no collective agreement governing consultation. The union, in turn, need be consulted only if there is no such workplace forum and no such collective agreement, and so on up the ladder. Under the unfair labour practice jurisdiction of the previous Act, there were suggestions that the employer had a duty to consult at two levels: first with the collective bargaining

representative on matters such as the need to retrench and the criteria for retrenchment, then with the prospective retrenches over matters specific to their individual future and fate. Section 189(1) quite deliberately renounces dual consultation in favour of the single level of consultation for which it provides. The change evinces, I take it, more than just a concern to make the process of consultation simple and speedy: it embodies a desire, evident elsewhere in the Act too, that bargaining and consultation should be collective rather than individual and that the legitimacy of the representative with the best claim to be consulted should not undermined by the claims to consult made by lesser interests. The effect of the section, thus, is to vest the appropriate collective representative with sole power of representation; if others claim the right to be consulted, they must look beyond the section, indeed beyond the Act, and to point to some sort in terms of which the employer concedes that [it] will engage in such consultation.” (own emphasis)

[7] The Constitutional Court further referred to an equally important decision by Van Niekerk AJ (as he then was) in SACCAWU v Amalgamated Retailers (Pty) Ltd[5] as an example of looking “beyond the Act”, where the employer elected to also consult with non-union members. The Labour Court held:

“Section 189 of the LRA requires consultation with the defined consulting partner. The hierarchy established by section 189(1) establishes the identity of that partner. It is entirely possible, in the discharge of an obligation under section 189, that an individual employee is never directly advised that his/her continued employment is in jeopardy. This is the consequence of a deliberate recognition by the Act of the primacy of the rights accorded to trade unions, workplace forums, and ad hoc employee representatives in the consultation process.(own emphasis)

…

However, in this instance, the respondent decided to initiate and conduct a separate consultation with non-union member, and to meet with these employees on an individual basis to discuss with matters relating to the proposed restructuring and their security of emc .]\

/ployment. Having elected to do so, it was incumbent on the respondent to interact with each employee with a view to reaching consensus on his/her proposed retrenchment, and the fairness of the respondent must accordingly be determined on the basis of its stated intentions.

I wish to emphasise that I reach this conclusion on the facts of this case and in the light of the respondents stated intentions. It is not a general proposition concerning the rights of individual employees in a consultation process. Given the primacy accorded to collective engagement with a trade union, a workplace forum or the representatives of employees accorded by section 189(1) and to which I have referred above, it is entirely feasible that an employer may discharge its obligations in terms of that section without engaging in separate consultation with affected individual employees.

(own emphasis)

[8] It was therefore not open to FSS to choose to approach employees outside the confines of the hierarchy created in section 189(1) of the LRA. Instead for the employer (FSS in this instance) to satisfy its obligations under the sub-section, it need only consult the employees likely to be affected by the proposed dismissal (or their representatives) if there is no registered union whose members are likely to be affected by the dismissal, no workplace forum in the workplace in which the dismissal might occur and no collective agreement governing consultation. This principle was endorsed by the Constitutional Court in AMCU. In any event, the evidence was not that all employees consented to being consulted as a group.

[9] Further to the above, section 189(5) requires the employer to allow the other consulting party an opportunity during consultation to make the representations about any matter on which they are consulting. Section 189(6) obliges the employer to consider and respond to the representations made by the other consulting party and, if the employer does not agree with them, the employer must state the reasons for disagreeing. Section 189(7) makes provision for what happens at the end of the process of consultation. Where attempts at finding measures that would avoid the dismissal of employees have failed, the end of the consultation process is the selection of the employees to be dismissed and then, finally, the dismissal.

[10] In this instance, nothing envisaged in section 189(5), (6) and (7) of the LRA occurred on any of the topics identified in section 189(2). There was no attempt by FSS to engage the first and second respondents in a meaningful joint consensus seeking process.

[11] There was also no attempt to discuss the selection criteria during the so-called consultation process.

[12] For these reasons, I am persuaded that the applicant has failed to make out a case that another court might reasonably arrive at a decision different to the one reached by this Court.

[13] The Respondents have not filed any submissions, and I am therefore not inclined to award costs against the applicant.

[14] Accordingly, the following order is made:

Order

1. The condonation application is granted.

2. The application for leave to appeal is dismissed.

3. There is no order as to costs.

___________________________

S B Nhlapo

Acting Judge of the Labour Court of South Africa

Appearances:

Applicants Attorneys: Mr Crafford of Crafford Attorneys

Respondent’s Attorneys: Mr Maphanga of Mafenya Attorneys

[1] No 66 of 1995, as amended.

[2] More specifically an instance where there is no collective agreement in place identifying parties to a consultative process. In an instance where there is a collective agreement in place, the Constitutional Court has pronounced itself in Association of Mineworkers and Construction & Others v Royal Bafokeng Platinum Limited and Others (2020) 41 ILJ 555 (CC)

[3] (2020) 41 ILJ 555 (CC).

[4] (2000) 21 ILJ 649 (LC) 656C – I .

[5] (2002) 23 ILJ 165 (LC) at paras 25 – 27.