National Union of Metalworkers of South Africa (NUMSA) obo Members and Another v South African Airways (SOC) Ltd and Others (J149/20) [2020] ZALCJHB 43; [2020] 6 BLLR 588 (LC); (2020) 41 ILJ 1402 (LC) (14 February 2020)

National Union of Metalworkers of South Africa (NUMSA) obo Members and Another v South African Airways (SOC) Ltd and Others (J149/20) [2020] ZALCJHB 43; [2020] 6 BLLR 588 (LC); (2020) 41 ILJ 1402 (LC) (14 February 2020)

The court found that SAA had not contemplated dismissal for operational reasons as required by section 189(1) of the LRA. The cancellation of routes and related announcements did not constitute a business rescue plan nor an unequivocal intention to dismiss employees. Without a published business rescue plan contemplating retrenchment, the duty to consult did not arise. The application to compel consultation under section 189A(13) was therefore premature and not available to the applicants. The court retained jurisdiction but found no factual or legal basis to grant the relief sought.

Citation
[2020] ZALCJHB 43
Parties
Applicant: National Union of Metalworkers of South Africa (NUMSA) obo Members; Applicant: South African Cabin Crew Association (SACCA) obo Members; Respondent: South African Airways (SOC) Ltd (In Business Rescue); Respondent: Les Matuson N.O.; Respondent: Siviwe Dongwana N.O.; Respondent: Aviation Union of South Africa (AUSA); Respondent: National Transport Union (NTM); Respondent: South African Airline Pilots Association (SAAPA); Respondent: South African Transport and Allied Workers Union (SATAWU); Respondent: Solidarity Trade Union (Solidarity); Respondent: Non-unionised employees
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
14 February 2020
Case Number
J149/20
Procedural Posture
Urgent Application / Application to Compel Consultation Under Section 189 A(13) of the LRA
Outcome
Application dismissed; no order as to costs.
Judges
G N Moshoana
Legal Topics
Retrenchment Procedure, Business Rescue, Consultation Obligation, Section 189a Application
Labour Law Retrenchment Procedure Business Rescue Consultation Obligation Section 189a Application

Case Brief

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Parties

National Union of Metalworkers of South Africa (NUMSA) obo Members

Applicant

South African Cabin Crew Association (SACCA) obo Members

Applicant

South African Airways (SOC) Ltd (In Business Rescue)

Respondent

Les Matuson N.O.

Respondent

Siviwe Dongwana N.O.

Respondent

Aviation Union of South Africa (AUSA)

Respondent

National Transport Union (NTM)

Respondent

South African Airline Pilots Association (SAAPA)

Respondent

South African Transport and Allied Workers Union (SATAWU)

Respondent

Solidarity Trade Union (Solidarity)

Respondent

Non-unionised employees

Respondent

Procedural Posture

Urgent Application / Application to Compel Consultation Under Section 189 A(13) of the LRA

Legal Issues

  1. 1 Whether the employer (SAA) has contemplated dismissal for operational reasons, triggering the duty to consult under section 189(1) of the LRA.
  2. 2 Whether the application to compel consultation is premature in the absence of a business rescue plan contemplating retrenchment.
  3. 3 Whether the Labour Court retains jurisdiction to entertain the application despite section 133 of the Companies Act.

Ratio Decidendi

The court found that SAA had not contemplated dismissal for operational reasons as required by section 189(1) of the LRA. The cancellation of routes and related announcements did not constitute a business rescue plan nor an unequivocal intention to dismiss employees. Without a published business rescue plan contemplating retrenchment, the duty to consult did not arise. The application to compel consultation under section 189A(13) was therefore premature and not available to the applicants. The court retained jurisdiction but found no factual or legal basis to grant the relief sought.

Court Disposition

Application dismissed; no order as to costs.

Orders

  • The application is dismissed.
  • There is no order as to costs.