A union's duty to consult: The Labour Court's disapproval of delaying tactics and obstructive behaviour
Section 189 of the Labour Relations Act, 1995 (the "LRA") provides that an employer, after giving notice that it is contemplating dismissals on the grounds of its operational requirements, must enter into a consultation process with regard to the proposed dismissals. Section 189(2) provides that this consultation process must be a “meaningful joint consensus-seeking process” in which an attempt must be made to reach consensus on a range of issues, including measures to avoid or minimise the need to dismiss employees.
There are numerous cases where dismissals based on an employer’s operational requirements have been held to be procedurally unfair due to the employer’s failure to consult properly. But the obligation to consult properly in terms of section 189, as reinforced by section 189A, applies to employee parties as well.
Throughout the consultation process, Putco had provided all requested information, answered all queries timeously, provided detailed proposals on all the aspects included in section 189, and provided the unions with sufficient time to consider and respond to them. In addition, Putco agreed to a one-week extension of the consultation process despite its dire financial situation, which had worsened as a result of the national bus strike. Ultimately, however, it was forced to retrench the affected employees without completing the consultation process.
In deciding that Putco’s decision to retrench was fair and dismissing the unions’ section 189A(13) application, Whitcher J emphasised the lengths to which Putco went to consult meaningfully on all consultation topics and to reach consensus. Also emphasised was the consistent failure on the part of the unions to provide substantial reasons for not attending consultations or even demonstrate why the information and time periods provided by Putco were insufficient.
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