I just called to say I’m sorry – restructuring during “the new normal”

Despite the gradual upliftment of the national Lockdown, Covid-19 has forevermore changed the dynamics and ethos of many companies. Furthermore, in addition to widespread panic and anxiety, employers must now contend with novel legal questions, particularly in the employment law arena.

It is concerning that despite the everchanging Rules, Regulations and Directives governing this period, no amendments to or relaxations of certain provisions of either the Labour Relations Act 66 of 1995, as amended (“the LRA”) or the Basic Conditions of Employment Act 75 of 1997, as amended have been made. The uncertainty that taints the year so-called “2020” will undoubtedly result in a flood of litigation.

In the recent case of FAWU v South African Breweries (J435/20)(28 May 2020) the Labour Court, by way of video conferencing, was required to determine the efficiency of video conferencing in conducting consultations in a section 189A restructuring exercising. This irony was not lost on the Court. In summary, FAWU argued that the use of Zoom during a section 189A facilitated consultation process was procedurally unfair and sought to interdict South African Breweries from continuing with the consultation process.

In view of the fact that the LRA does not expressly define procedural fairness, the Court was required to formulate a value judgment based on the provisions of the Code of Good Practice on Dismissals based on operational requirements and the provisions of section 189(2) of the LRA. Based on the provisions of the LRA the Court found that consultations would be procedurally fair where it is shown that the parties attempted to reach consensus on inter alia appropriate measures to avoid dismissals, the method of selecting employees and severance pay.

The Court furthermore highlighted that the LRA does not prescribe the form the consultation process must assume and that the consultation process may even be undertaken by way of correspondence. In conclusion, the Court found that the usage of Zoom was necessitated by the global Covid-19 pandemic and only sought to ensure the health and safety of the parties. There was accordingly nothing procedurally unfair in utilizing Zoom or video conferencing during the consultation process and it “accords with the new normal”.

In the absence of a physical consultation process being mandated by the provisions of the LRA, employers are entitled to utilize alternative means in order to conduct section 189 consultations during this trying period. This may, of course, include Zoom, Skype, Teams, Lifesize, WhatsApp, Text Messages and telephonic consultations.

In the circumstances, employers and employees alike are encouraged to adapt to the “new normal” in the furtherance of social distancing and other Covid-19 related safety measures, whilst complying with the applicable legislation and ensuring the fairness of the process.

Written by Tanya Mulligan and Sino Skondo
of Cowan-Harper-Madikizela Attorneys

Tanya Mulligan of Cowan-Harper-Madikizela Attorneys
Sino of Cowan-Harper-Madikizela Attorneys