The Johannesburg Labour Court has ruled that retrenchment
negotiations can take place over Zoom or using other video conferencing
This was in light of the Covid-19 pandemic and the “new
normal”, Judge Graham Moshoana said in a judgment handed down in an urgent
application brought by the Food and Allied Workers Union (FAWU) against South African
The union claimed that the ongoing Section 189A consultation
process, which began in January this year with face-to-face talks and continued
using Zoom during the lockdown, was procedurally unfair.
The union decided not to participate in the finalisation of
the process, which resulted in a final organogram being drafted and termination
notices being issued to affected employees.
The union raised several issues, but Judge Moshoana said the
Zoom issue was the one that “broke the camel’s back”.
He also referred to the “irony” that the union’s
application to the court was done via video conferencing.
“With the new normal, Zoom is an appropriate form of
meetings taking place. It is a necessary tool to ensure restrictions like
social distancing as a measure to avoid the spread of the virus are observed.
“There is nothing procedurally unfair if a consulting
party suggests its use. The appointed facilitator, who possesses the powers to
make a final and binding ruling on procedure, was not opposed to it.”
The judge said in an attempt to demonstrate the inefficacy
and unreliability of videoconferencing, the advocate for the union raised “an
incident” when the screen of the advocate for SAB “hanged” and
his connectivity to the hearing was lost for a while.
“To that I say anywhere where technology is employed,
even in a physical meeting where a presentation to be made on a projector
fails, teething problems are expected to emerge,” he said.
This did not make the use of such technology obsolete to the
point of any form of unfairness, he said.
“It is no fault of SAB that the union chose to abandon
the process. During oral submissions, SAB made a without prejudice offer to
continue to consult with the union on the remaining topics for consultation.
“I was willing to stand proceedings down to enable
counsel to obtain instructions on this. To my utter amazement, she instantaneously
informed the court that she was instructed to reject the other.”
Dismissing the application, Judge Moshoana said a party
could not complain about procedural unfairness if, in open court, it rejected
an offer to be consulted.
Bowmans’ senior associate Yonela Sicam, who represented SAB,
said the case was important for employers, employees and trade unions engaging
in section 189 consultation processes where, due to extraordinary
circumstances, face-to-face consultations were not possible.
“It has cemented the position that a party who either
frustrates or refuses to participate in the consultation process cannot lament
on its procedural fairness,” she said.