CONSULTATION – RETRENCHMENT – FAIR PROCEDURE

We have all conformed to a standard or way of doing things, a way we are expected to conduct ourselves, the “usual” way of doing things. This standard or way we are used to operating is so entwined to who we are, that when someone steps out of this standard, we define their conduct as ‘not normal’.

The COVID-19 Pandemic rewrote “normal”! We no longer shake hands or embrace or meet face to face in a conference room or cross provincial boarders without giving it a second thought. The question is whether the new normal renders innovative ways to consult unfair?

Dismissals based on Operational Requirements

MISA is currently consulting on more than 4 700 affected positions nationally in the Retail Motor Industry, which may result in dismissals based on operational requirements!

Reading through section 189 and 189A of the LRA, it doesn’t take long to realise that this unique type of dismissal is a ‘no fault’ dismissal and as a result the key words are ‘consultation’ and ‘joint consensus seeking process’.

The challenges that are faced in this regard is inconceivable and requires nerves of steel, new innovative ideas and alertness, especially with retrenchments and large scale retrenchments, governed in section 189 and 189A of the Labour Relations Act 66 of 1995 (LRA). In particular, those cutting across provincial boarders.

Joint Consensus Seeking Process through Virtual Consultation

Virtual consultation is just another word for ‘on-line consultation’ and can be through Face-Time; Zoom; Microsoft Teams; WhatsApp video calls and the like.

Normal was the face to face meeting, the human presence, the emotions and the notion of ‘I am not alone’. The new normal is switching on the computer and signing in on-line and adapting to virtual consultation. Even though you are still not alone, this way renders itself sometimes clinical and removed. Reaching consensus during consultation is the critical part, not the medium through which we reach that consensus, as was confirmed recently in Labour Court.

Virtual Meetings – Procedural Fairness

The question raised by the Food and Allied Workers Union (FAWU), on whether video conferencing was an appropriate means to consult in a retrenchment process during the lockdown period, was answered in the recent Labour Court judgment, FAWU v South African Breweries.

The court dismissed this application and found that, in this instance, where an employer proposes to consult in a certain manner and the consulting party rejects that manner of consultation, it is not procedurally unfair for the employer to continue with the process without the other party.

The way in which we consult may vary, even if it is not the norm! The LRA does not regulate the medium to consult, in fact, it even provides for written representations in section 189(6). It is important to grasp that the new normal will let us venture on unknown routes, but the key word is fairness!

You are not alone

Remember that MISA is your voice! Do not go through any labour related process alone, we are just a phone call away!

How to contact MISA during the lockdown?

Kindly utilise the following e-mail addresses and links for assistance during this time:

Employer UIF/TERS Submissions                    UIFClaim@ms.org.za

Legal/Labour-related enquiries                      Legal@ms.org.za

*  Legal Reception                                            0114763920

MISA Benefit claim-related enquiries            Claims@misa.org.za

Any other enquiries                                         Info@ms.org.za

Website                                                             www.misa.org.za

Mobile App                                                      https://onelink.to/w9a7ku

#MISACARES #MISAONTHEMOVE