Article 37/2021

Labour Edge

Is individual or parallel consultation required when embarking on a s189 exercise?


In Association of Mineworkers and Construction Union and Others v Royal Bafokeng Platinum Ltd and Others (2020) 31 SALLR 1 (CC), the following was stated:

  1. the procedural requirements for a fair consultative process are set out in s189 of the LRA. Since the introduction of the LRA, as will be shown below, our jurisprudence has consistently interpreted s189 to exclude any requirement of individual or parallel consultation in the retrenchment process outside the confines of the hierarchy created in s189(1); and
  2. the tone was set in the labour court twenty years ago in Sikhosana and Others v Sasol Synthetic Fuels (2000) 21 ILJ 649 (LC). Commenting on s189, Brassey AJ stated:

‘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 subsection, need only consult the employees likely to be affected by the proposed dismissals (or their representatives) if there is no registered union whose members are likely to be effected 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 retrenchees 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 be 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 point to some juristic act an agreement, undertaking or commitment of some sort in terms of which the employer concedes that [it] will engage in such consultation.’

In Minister of Police v M and Others (2016) 27 SALLR 53 (LC); (2017) 38 ILJ 402 (LC), the labour court identified the content of hearsay evidence of a special type affording greater weight than simple hearsay.  What is the approach adopted by the labour court in such case as to the transcript of an internal enquiry admitted as hearsay evidence in terms of s3(1)(c) of the Law of Evidence Amendment Act?  Subsequent to such judgment, the labour court, in Department of Home Affairs v General Public Service Sector Bargaining Council and Others (2019) 30 SALLR 172 (LC); (2019) 40 ILJ 2544 (LC), had the opportunity to apply the approach adopted in the aforesaid judgment to the specific facts of this matter.  In this subsequent judgment, how did the labour court identify such transcript of an internal enquiry as not constituting hearsay of a special type (as required in Minister of Police v M (supra))?

According to the constitutional court, when a referral is made to the CCMA or a bargaining council concerning a dismissal, is it a requirement that the reason for the dismissal (i.e. misconduct, incapacity poor work performance, etc) is also identified in order for such CCMA or bargaining council to require the requisite jurisdiction?

What are the principles governing hearsay evidence as contained in the Law of Evidence Amendment Act 45 of 1998 and applied by the labour court in, inter alia, Swiss South Africa (Pty) Ltd v Louw NO [2006] 4 BLLR 373 (LC) and NUMSA v SA Metal & Engineering Industries Bargaining Council and Others (2014) 25 SALLR 4 (LC)?