Video Conferencing: The new normal?

In Food and Allied Workers Union v South African Breweries (Pty) Ltd J435/20 an urgent application was heard by the Labour Court regarding a section 189A facilitated retrenchment process initiated by SAB in January 2020. The predominant issue upon which the court was called to decide was the fairness of the continuation of the facilitated retrenchment process via the Zoom Application, a video conferencing programme.

SAB was forced to consider the restructuring of its business operations and initiated this process in January 2020 by issuing a notice in terms of section 189(3) of the Labour Relations Act (LRA), informing the parties of its perceived need to implement a retrenchment process. As the retrenchment was likely to affect approximately 500 employees, SAB requested CCMA facilitation. A number of consultations were chaired by a CCMA facilitator before the process was interrupted by the nationwide lockdown in March.

The parties had initially agreed to a consultation timetable which had scheduled the next consultation to be held on 25 March 2020 but an impasse regarding the continuation of the process was reached between the parties in light of the lockdown. FAWU proposed that the process be stalled until the end of the lockdown period and, on that basis, did not participate any further. This barred any further consultation between the parties despite the employer making various attempts to continue with the process via Zoom, a video conferencing programme. The need to implement the retrenchment remained urgent and SAB made the decision to proceed with the process.

The procedural fairness of the process was then challenged by FAWU in a number of respects, including the employer’s attempt to continue the consultation process using the Zoom application. In this regard, the court noted that the LRA does not prescribe the form which the retrenchment consultation process is to assume. While the court acknowledged that these consultations will generally take place by way of physical meetings, a new normal, in the form of the covid-19 lockdown,had presented itself which demanded an adaptation of the ordinary process. As such, the court ordered that Zoom is an “appropriate form in which meetings can take place.” The court stated further that the utilisation of the tool was necessary to ensure the health and safety of all the parties involved in the consultation which trumps any convenient preferences FAWU may have had. Moshoana, J went as far as to describe these preferences as “self-serving” and “ignorant of the bigger issue of health and safety.” Ultimately, the court ordered that the complaint of procedural unfairness in this regard was without merit.

In reaching its decision, the court relied heavily on the Labour Appeal Court’s comments in SAA v Bogopa and others [2007] 11 BLLR 1065 (LAC) paragraph 48 which formulated the law as follows:

“When an employer invites an employee or employees or his or their trade union to consult and the employee(s) or the trade union either rejects or ignores such invitation, or initially participates but later abandons the progress due to no fault of the employer, the dismissal cannot be said to be procedurally unfair, if the employee is subsequently dismissed without consultation or without a completed consultation process.”

The Labour Court’s finding in this matter has the effect of not only ensuring that employees are duly consulted in any and every retrenchment process but also bolsters an employer’s right to proceed with the restructuring of its business in what has proved to be a very critical time – despite “the new normal”.  While this decision related specifically to retrenchment processes, it relays strong legal principles which may arguably be applied to various situations in the workplace demanding engagement between a number of parties, including, but not limited to, disciplinary enquiries, implementing short-time working arrangements and temporary lay-offs, and section 186 business transfer consultations. The versatility of video conferencing was acknowledged by the court itself when Moshoana, J noted the irony that this matter had proceeded before him via the Zoom application. While the Covid-19 pandemic accelerated this judicial acknowledgment of the use of technology in the workplace, it was an inevitable decision which is likely to be applied in varying scales and complexity as the digital revolution continues.

Download the full judgment here