8 June 2020 by and Employment Alert

Video conference consultation, the new normal?

In Food and Allied Workers Union (FAWU) v South African Breweries, the Labour Court, amongst other things, had to decide whether video conferencing was an appropriate means to consult in a retrenchment process during the lockdown period. The judgment shows that parties have to be adaptable and embrace the use of technology to accommodate health and safety concerns in the time of COVID-19, in what is sure to be the new normal for some time.

In early January 2020, the company commenced a restructuring process. Because of the large numbers of potentially affected employees, section 189A of the Labour Relations Act (the LRA) applied. The company opted for CCMA facilitation in the consultation process. The parties agreed to a facilitation timetable. After the facilitation process had commenced, the President announced the State of Disaster and level 5 lockdown.

In light of the lockdown, physical face-to-face consultations were not possible. There were two options open to the consulting parties: conduct the remaining consultations by video conferencing or postpone the process. The facilitator proposed that the remaining consultations be held via the popular video conferencing app, Zoom. The union’s opposition to this proposal was so vehement that the facilitator recused himself and another facilitator was appointed.

In light of the union’s refusal to participate in the consultation process, if it was to be done by video conferencing; the company continued with the process and began to populate its new structure. Notices of termination of employment were issued to affected employees.

This led to the union bringing an urgent application to the Labour Court to compel the company to comply with a fair procedure in the consultation process and interdicting it from, amongst other things, proceeding with the consultation process without the physical attendance of the union in the facilitated process.

Ironically, the union agreed to have the urgent application heard by means of Zoom - the very application they were so vehemently opposed to. The union complained that the Zoom application was inefficient and unreliable and that it could not replace physical consultation.

The court found that section 189 of the LRA did not prescribe the form that consultation must assume. In fact, section 189(6)(b) suggested that the process could be conducted by correspondence.

The court found that the union’s insistence on physical consultations was self-serving and ignorant of the bigger issue of health and safety. It found that with the new normal in the lockdown period, video conferencing was an appropriate form in which meetings could take place. In response to the union’s criticism about connectivity issues the court held that where technology was used that teething problems were to be expected. This, however, did not relegate the technology to obsoleteness or make its use unfair. In these circumstances video conferencing was a necessary tool to ensure that restrictions like social distancing as a measure to avoid the spread of the virus was observed. Consultation by video conferencing accorded with the new normal and was actually fair.

Consultations provide an opportunity for an exchange of views and the establishment of a dialogue. Meaningful consultation entails early stage consultation, providing adequate information, time to respond and genuinely considering the response. 

On the issue of the incomplete consultation process the court found that the union had unreasonably refused to participate in the process because of the use of the Zoom app. It was not the fault of the company that the union chose to abandon the process.

The application was dismissed.

This judgment shows us how the COVID-19 pandemic has accelerated the fourth industrial revolution. It illustrates further that parties involved in labour relations have to adapt to the new normal, whether it be the embrace of technology or other new ways of working. They cannot cling indefinitely to the old way of work.

 

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