Virtual hearings are here to stay – 2
31 May 2021 00:00 by Dr Hilda Grobler
In the second of four articles which look at what happens when parties refuse to participate virtually, Dr Hilda Grobler discusses what happens when parties refuse to participate virtually in retrenchment consultations. It is done with reference to what the Labour Court had to say when FAWU claimed procedural unfairness when the consultation proceeded in its absence.
Written by Dr Hilda Grobler, Director of Aequitate Dispute Resolution Services (Pty) Ltd, for LexisNexis South Africa
Virtual consultations are valid: The Labour Court refused to entertain “self-serving” preferences which were ignorant of health and safety requirements
South African Breweries (“SAB”) took a step forward into the “new normal” when it advised trade unions FAWU and Solidarity that it would enter into consultations in terms of section 189A (13) of the Labour Relations Act (LRA) on a virtual platform.
FAWU elected not to attend the virtual consultation.
Solidarity, on the other hand, attended and fully participated in the consultation process which continued in the absence of FAWU.
FAWU referred the matter to the Labour Court, claiming that SAB’s conduct resulted in procedural unfairness.
The court disagreed when it handed down its decision in the matter of Food and Allied Workers Union (FAWU) and South African Breweries (case number J4/20) on 28 May 2020.
The court held in no uncertain terms that while a party may have “convenient preferences”, such preferences may be disregarded as they are merely “self-serving” and indicative of ignorance “of the bigger issue of health and safety”.
The court, firstly, pointed out that the LRA does not provide a definition of what constitutes procedural fairness.
Secondly, with reference to the Code of Good Practice, the court concluded that “any process that complies with section 189 and section 189A of the LRA is bound to be procedurally fair”.
The reason for having reached such a conclusion is provided at paragraph  of the judgment:
“The code suggests that a consultation would be regarded as proper, if an opportunity to meet and report back to employees is provided; the opportunity to meet with the employer is provided and the request, receipt of information and consideration thereof is provided.”
Finally, the court held that the LRA did not prescribe the form in which a consultation process should take place. While the convention was to convene physical meetings, the advent of COVID-19 has changed the way in which parties engage.
In this regard the Court specifically stated “that the outbreak of COVID-19 ushered in the new normal” and confirmed the fact that, hence forward, matters could proceed virtually. It emphasised that Zoom has always been available, but hastened to add that in the past “if used it was used in a parsimonious fashion”. That, however, is no longer the case:
 “With the new normal – lockdown period during COVID-19 pandemic – Zoom is the appropriate form in which meetings can take place. What is involved in this period is the health and safety issue. Thus the usage of the zoom application is not panoply. It is a necessary tool to ensure that restrictions like social distancing as a measure to avoid the spread of the virus are observed.”
The Labour Appeal Court had already held in 2007 in the matter of SAA v Bogopa and others that should an employee or a trade union reject or ignore an invitation to consult, and such consultation proceeded nevertheless without them being present, they could not claim procedural unfairness.
Therefore, it did not come as a surprise that the Labour Court found that it wasn’t the fault of SAB that FAWU “chose to abandon the process for reasons of the usage of a fair application of Zoom”.
The importance of this judgment is that it categorically confirmed that the “new normal” means that dispute resolution processes may, and perhaps even should, take place virtually in compliance with the restrictions levelled by the government in its attempts to safeguard the health of its citizens.
Dr Hilda Grobler
Director of Aequitate Dispute Resolution Services (Pty) Ltd
Related articles in the series:
Part 3: Zoomed out of a job