Section 189A of the LRA is applicable to dismissals based upon the operational requirements of an employer who employs more than 50 employees and, in essence, contemplates dismissing at least 10 of such employees.
In terms of s189A(13) of the LRA, if an employer does not comply with a fair procedure, a consulting party may approach the labour court by way of an application for an order compelling compliance with a fair procedure or interdicting or restraining the employer from dismissing an employee prior to complying with a fair procedure, or directing the employer to reinstate an employee until it has complied with a fair procedure, or, alternatively, if none of the above are applicable, to make an award of compensation.
In terms of s189A(18) of the LRA, the labour court may not adjudicate a dispute about the procedural fairness of a dismissal, based upon the employer’s operational requirements, in any dispute referred to it in terms of s191(5)(b)(ii) of the LRA.
The labour appeal court, in the Regenesys matter, relying on Steenkamp v Edcon Ltd [2019] 11 BLLR 1189 (CC) (CC Steenkamp II) and Solidarity obo Members v Barloworld Equipment Southern Africa (2022) 43 ILJ 1757 (CC) (CC Barloworld) adopted the approach that the labour court’s jurisdiction to determine a dispute about procedural fairness of a dismissal for operational requirements is completely ousted, irrespective of whether the dispute was referred to the labour court in terms of secton191(5)(b)(ii) or s189A(13) of the LRA.
On what basis did the constitutional court find that such approach is inconsistent with an employee’s fundamental right to fair labour practices enshrined in s23(1) and s34 of the Constitution?
Furthermore, how did the constitutional court deal with the following issues:
- in a s189A scenario, where there is non-compliance with a fair procedure, at what stage must an application be brought in terms of s189A(13)?
- when can an order for compensation in terms of s189A(13)(d) be claimed as a standalone remedy?
- how is compensation in terms of s191 to be compared with compensation in terms of s189A(13)(d) of the LRA?
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IS THE LABOUR COURT’S JURISDICTION TO DETERMINE A DISPUTE ABOUT PROCEDURAL FAIRNESS OF A DISMISSAL FOR OPERATIONAL REQUIREMENTS COMPLETELY OUSTED?
- The ousting of the jurisdiction of the LC, irrespective of whether the dispute is referred to the LC in terms of s191(5)(b)(ii) or s189A(13), may have an effect on various fundamental rights of an employee.
- The answer may affect the employee’s fundamental right to fair labour practices (s23(1) of the Constitution), the right of every person to have his/her justiciable disputes adjudicated by a court in a public hearing (s34 of the Constitution) and the right to approach a competent court alleging that the right in the Bill of Rights had been infringed (s38 of the Constitution).
AT WHAT STAGE MUST AN APPLICATION BE BROUGHT IN TERMS OF s189A(13) OF THE LRA?
- An order to compel an employer to comply with a fair procedure (s189A(13)(a)) must be brought before, or at the start, or during the consultation when the dismissal is not imminent or, alternatively, no dismissal as yet has taken place.
- An order interdicting and restraining the employer from dismissing an employee prior to complying with a fair procedure (s189A(13)(b)) must be brought when the dismissal is imminent, but has not as yet happened, without a fair procedure.
- An application directing the employer to reinstate the employee until there is compliance with a fair procedure (s189A(13)(c)) must be brought when the dismissal has taken place without a fair procedure, when it is appropriate to reverse the dismissal and consultation is capable of being put back on track.
- An application for the award of compensation, if the above three subsections are not applicable (s189A(13)(d)), must be brought when an order in terms of the above subsections is inappropriate and, thus, when an order of reinstatement is inappropriate – it is to hold the employer responsible for failure to comply with a fair procedure and compensate the employee for such infringement.
WHEN CAN AN ORDER FOR COMPENSATION IN TERMS OF s189A(13)(d) OF THE LRA BE CLAIMED AS A STANDALONE REMEDY?
- This standalone remedy is applicable under the following circumstances:
- the time-lapse between the date of the dismissal and the date of adjudication is so long that it cannot reasonably be expected that the employer should resume consultation
- an order in terms of s189A(13)(a) or (b) or (c) is inappropriate
- in short, an order of reinstatement is inappropriate
COMPARISON BETWEEN COMPENSATION IN TERMS OF s191 AND s189A(13)(d) OF THE LRA
- There is no difference in the purpose of compensation in these separate provisions – the purpose in both these provisions is to afford the employee relief for the right that he/she has to procedural fairness and that has been infringed.
- There is also very little difference in the route to be followed in claiming compensation, except that, in the case of s189A(13)(d):
- such compensation is only available if an order in terms of s189A(13)(a) to
(c) is inappropriate - the application must be brought within 30 days of the employer giving notice to terminate, or, if no notice is given, within 30 days of the dismissal (subject to condonation granted in terms of s189A(17) of the LRA)
- such compensation is only available if an order in terms of s189A(13)(a) to
