Dif­fer­ent routes for dif­fer­ent chal­lenges

Tourism Tattler - - LEGAL - By Kirsten Caddy Aadil Pa­tel. Pub­lished with ac­knowl­edg­ment to Cliffe Dekker Hofmeyr At­tor­neys.

Sec­tion 189A of the Labour Re­la­tions Act, No 66 of 1995 (LRA) enu­mer­ates the rules ap­pli­ca­ble in large scale re­trench­ments. Em­ploy­ees who are re­trenched in terms of a re­trench­ment process pur­suant to s189A have the right to chal­lenge both the sub­stan­tive and pro­ce­dural fair­ness of their dis­missals. They can do so through ad­ju­di­ca­tion or strike action. South Africa has seen a lim­ited num­ber of strikes as a re­sult of re­trench­ments.

Sec­tion 189A pro­vides for a bi­fur­cated process in terms of which sep­a­rate reme­dies are cre­ated to chal­lenge sub­stan­tive fair­ness and pro­ce­dural fair­ness. Where the pro­ce­dural fair­ness of a mass re­trench­ment is chal­lenged, it is nec­es­sary for the em­ploy­ees to bring an ap­pli­ca­tion (mo­tion pro­ceed­ings) to the Labour Court in terms of s189A(13). Action pro­ceed­ings are not per­mit­ted to deal with pro­ce­dural chal­lenges.

How­ever, when a dis­missal is al­leged to be sub­stan­tively un­fair, em­ploy­ees may choose to fur­ther their in­ter­ests by re­sort­ing to strike action, al­ter­na­tively, by re­fer­ring a dis­pute to the Labour Court for ad­ju­di­ca­tion. If em­ploy­ees elect to chal­lenge their dis­missals by re­fer­ring a dis­pute to the Labour Court re­gard­ing whether there was a fair rea­son for their dis­missals, such em­ploy­ees are pre­cluded from em­bark­ing on strike action in re­spect of that dis­pute.

The in­ten­tion of s189A of the LRA is to ex­clude pro­ce­dural is­sues from the de­ter­mi­na­tion of sub­stan­tive fair­ness where the em­ploy­ees have opted for ad­ju­di­ca­tion rather than in­dus­trial action, pro­vid­ing in­stead for a mech­a­nism to pre-empt pro­ce­dural problems before the sub­stan­tive is­sues be­come ripe for ad­ju­di­ca­tion or in­dus­trial action.

In the re­cent de­ci­sion in SACCAWU and P Dzivhani and 12 oth­ers v South­ern Sun Ho­tel In­ter­ests (Pty) Ltd, the em­ploy­ees elected to and

re­fer a dis­pute to the Labour Court (as op­posed to em­bark­ing on strike action) in or­der to chal­lenge the sub­stan­tive fair­ness of their dis­missal. They had also brought an ap­pli­ca­tion to chal­lenge the pro­ce­dural fair­ness of the re­trench­ment process. The em­ploy­ees then ap­plied to con­sol­i­date the re­fer­ral (chal­leng­ing sub­stan­tive fair­ness) and the ap­pli­ca­tion (chal­leng­ing pro­ce­dural fair­ness) in or­der for the two is­sues to be heard si­mul­ta­ne­ously.

The court found that the con­sol­i­da­tion or any other co-hear­ing of the pro­ce­dural and sub­stan­tive chal­lenges raised in large scale re­trench­ments is im­per­mis­si­ble in terms of the LRA.

While con­sol­i­da­tion of con­nected claims is pro­vided for in the Labour Court Rules, where a statute pre­vents con­sol­i­da­tion, it is un­nec­es­sary to even de­cide whether the con­di­tions under the rules for con­sol­i­da­tion ap­ply or not. Ac­cord­ingly, the court found that it lacked the ju­ris­dic­tion to or­der con­sol­i­da­tion even if it was con­ve­nient to do so and would not prej­u­dice the em­ployer.

Em­ploy­ees are there­fore obliged to pur­sue sep­a­rate pro­ce­dures in or­der to chal­lenge the sub­stan­tive fair­ness of their dis­missals on the one hand and the pro­ce­dural fair­ness of their dis­missals on the other. In ad­di­tion to that, when chal­leng­ing the sub­stan­tive fair­ness of their dis­missals, em­ploy­ees are pro­vided with an elec­tion be­tween em­bark­ing on in­dus­trial action and re­fer­ring a dis­pute to the Labour Court for ad­ju­di­ca­tion.

When em­ploy­ees make an elec­tion to re­fer a sub­stan­tive fair­ness dis­pute to ad­ju­di­ca­tion before the Labour Court, they may not em­bark on strike action in re­la­tion to that sub­stan­tive fair­ness dis­pute.

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