Article 38/2021

Labour Edge

What are the consequences of an employer electing to consult with non-union members?


An example of looking ‘beyond the Act’ occurred in SA Commercial Catering and Allied Workers Union and Another v Amalgamated Retailers (2002) 23 ILJ 165 (LC), where the employer elected to also consult with non-union members.  In this regard, Van Niekerk AJ held:

‘[25]   Section 189 of the LRA requires consultation with a defined consulting partner.  The hierarchy established by s189(1) establishes the identity of that partner.  It is entirely possible, in the discharge of an obligation under s189, that an individual employee is never directly advised that his or 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.

[26]    …However, in this instance, the respondent decided to initiate and conduct a separate consultation with non-union members, and to meet with these employees on an individual basis to discuss with [them] matters relating to the proposed restructuring and their security of employment.  Having elected to do so, it was incumbent on the respondent to interact with each employee with a view to reaching consensus on his or her proposed retrenchment, and the fairness of the respondent’s actions must accordingly be determined on the basis of its stated intentions.

[27]    I wish to emphasize that I reach this conclusion on the facts of this case and in the light of the respondent’s 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 s189(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.  Baloyi’s case is an example of such an instance.’

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)?