Voice of The Workers of South Africa Civil Right Union v Kijima Construction (Pty) Ltd (J591/2022) [2022] ZALCJHB 153 (1 June 2022)

THE LABOUR COURT OF SOUTH AFRICA

(Held at Johannesburg)

Not reportable

CASE NO: J 591/2022

In the matter between:

VOICE OF THE WORKERS OF SOUTH AFRICA CIVIL

RIGHT UNION

APPLICANT

And

KIJIMA CONSTRUCTION (PTY) LTD

RESPONDENT

Date of hearing: 31 May 2022

Date of judgment: 1 June 2022 (delivered by email)

(In view of the measures implemented as a result of the Covid 19 pandemic, this judgement was handed down electronically by circulation to the parties’ representatives, by email. The date on which the judgment is delivered is deemed to be 1 June 2022.)

JUDGMENT

VAN NIEKERK J

[1] The applicant (the union) seeks an order in terms of section 189A (13), staying or suspending the retrenchment of its members (the employees), pending ‘the outcome of the facilitation in the CCMA’.

[2] The employees were retrenched on 18 May 2022, having been given notice of the termination of their employment on 14 April 2022. The consultation process that culminated in the retrenchment commenced in January 2022, initiated by a section 189(3) notice dated 10 January 2022. At a meeting held on 26 January 2022, the union raised the issue of facilitation, and it was agreed that the union may apply to the CCMA for the appointment of a facilitator. The application appears to have been served late, without any application for condonation and in the event, the CCMA did not appoint a facilitator.

[3] The union does not dispute having had ‘several meetings’ with the respondent, and states that it was ‘under the impression’ that the CCMA would have commenced the facilitation process. During argument, the union’s representative sought to make the case that the court’s intervention was warranted on the basis that information sought by the union during the consultation process had not been disclosed by the respondent, and that the respondent had thus failed to comply with its obligations to consult. This is not a case made in the founding papers, but for a single paragraph where it is averred that the respondent had failed to reply to a letter dated 28 April 2022 in which certain documents had been requested. The primary challenge to the consultation in the founding papers is to the effect that the respondent acted precipitately, and that the implementation of the retrenchment ought to be stayed pending the outcome of a CCMA facilitation process.

[4] To the extent that the respondent contends that the application is not urgent, it is not necessary in an application of this nature for an application to satisfy the court, as a separate requirement, that the application is urgent. Section 189A (13) establishes its own time limits, and the present application was filed within the required period. Section 189A (13) contemplates that this court exercises a supervisory function in consultation processes conducted in terms of section 189A. In Steenkamp & Others v Edcon Ltd 2019 (7) BCLR 826 (CC) the Constitutional Court held that:

[52] Where procedural irregularities arise, the process provided for in section 189A (13) of the LRA allows for the urgent intervention of the Labour Court to correct any such irregularities as and when they arise so that the integrity of the consultation process can be restored and the consultation process can be forced back on track. The purpose of section 189A (13) has been recognised in a long line of cases. In Insurance & Banking Staff Association the Labour Court explained:

"The overriding consideration under section 189A is to correct and prevent procedurally unfair retrenchments as soon as procedural flaws are detected, so that job losses can be avoided. Correcting a procedurally flawed mass retrenchment long after the process has been completed is often economically prohibitive and practically impossible. All too often the changes in an enterprise with the passage of time deter reinstatement as a remedy. So, the key elements of section 189A are: early expedited, effective intervention and job retention in mass dismissals.”

[53] Similarly in SA Five Engineering the Labour Court held that:

"Suffice it now to say that the intention of section 189A (13), read with section 189A (18), is to exclude procedural issues from the determination of fairness where the employees have opted for adjudication rather than industrial action, providing instead for a mechanism to pre-empt procedural problems before the substantive issues become ripe for adjudication or industrial action."

[54] In exercising its powers in terms of section 189A (13) of the LRA, the Labour Court thus acts "as the guardian of the process” and exercises a "degree of judicial" management or oversight over the process. The aim is to proactively foster the consultation process by allowing parties to seek the intervention of the Labour Court on an expedited basis to ensure that procedural irregularities do not undermine or derail the consultation process before it ends. The Labour Court in Anglo American expounds:

"Section 189A (13) was introduced in 2002 and was intended, broadly speaking, to provide for the adjudication of disputes about procedural fairness in retrenchments at an earlier stage in the ordinary dispute-resolution process, and by providing for their determination, inevitably as a matter of urgency, on application rather than by way of referral. The section empowers employees and their representatives to approach the court to require an employer to apply fair procedure, assuming, of course, that the jurisdictional requirements set out in section 189A are met. The section affords the court a broad range of powers, most of which appear to suggest that where a complaint about procedure is made by a consulting party, the court has a broad discretion to make orders and issue directives, thereby extending to the court an element of what might be termed a degree of judicial management into a contested consultation process." (footnotes omitted)

[5] The appointment of a facilitator to assist the parties engaged in consultation is not automatic. Section 189A (3) of the LRA provides:

The Commission must appoint a facilitator in terms of any regulations made under subsection (6) to assist the parties engaged in consultation if –

(a) the employer has in its notice in terms of section 189(3) requested facilitation; and

(b) consulting parties representing the majority of employees whom the employer contemplates dismissing have requested facilitation have notified the Commission within 15 days of the notice.

[6] It is common cause that the respondent did not request facilitation in its section 189(3) notice and that the first time that the applicant sought ‘independent facilitation’ was on 28 January 2022. In short, the time for the appointment of a facilitator has come and gone, both in the sense that the time period within which any appointment may be requested has long lapsed, and that the 60-day period during which a facilitator might assist the parties has long expired. On this basis alone, the present application stands to be dismissed, given that the relief sought is in the nature of interim relief pending the outcome of a facilitation process.

[7] In regard to the union’s submission that the consultation was unfair in the absence of any response to the request for information filed by the union on 28 April 2022, by that time, the statutory 60-day period had expired and notices of termination of employment had been issued. At the hearing, the union’s representative was unable to explain why the request for information had not been made timeously, and why the union had failed to enforce its rights to disclose of information in terms of the available mechanisms. In summary: the union has failed to make out a case for the relief that it seeks, and the application stands to be dismissed.

[8] Turning next to the issue of costs. Section 162 of the LRA provides that this court may make orders for costs according to the requirements of the law and fairness. The rule that costs follow the result does not apply in this court. The court must necessarily take into account all relevant facts and circumstances in the exercise of the discretion that has been conferred on it in relation to costs. This court has always been reluctant to make orders for costs against employees who seek in good faith to pursue legitimately felt grievances against their employers. The rationale for this approach is obvious – the court does not wish to close its doors to employees who may be reluctant to pursue the remedies afforded to them by the LRA on account of the spectre of an adverse order for costs.

[9] In the present instance, it is difficult to accept that the present application was brought in good faith. First, the union seeks a remedy that is simply not available, as a cursory reading of section 189A would have made clear. Secondly, and more fundamentally, the union engaged in what by definition a joint consensus-seeking exercise with less than the required degree of diligence, seeking intervention by this court in circumstances where the proverbial horse had bolted. Section 189A is not there for a union to seek to stay the implementation of a retrenchment process in circumstances where it has been less than enthusiastic in its representation or the advancement of its members’ rights during the consultation process. The present application is too little, too late. The respondent has been obliged to incur costs in its opposition to the application. Having regard to all of the facts and circumstances, the requirements of the law and fairness are best served by an order for costs.

I make the following order:

1. The application is dismissed, with costs.

___________________________

André van Niekerk

Judge of the Labour Court of South Africa

REPRESENTATION

For the applicant: T Feke-Myeko Attorney

For the respondent: N Muller, Yusuf Ngdee Attorneys.