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.’
