Final Edition Judgments
Industrial Relations and Human Resources :: employment
South African Communication Union and another v Telkom SA SOC Ltd and others
|Case Number:||J203 / 2020|
|Judgment Date:||05 / 03 / 2020|
|Bench:||RG Lagrange J|
Labour and Employment – Retrenchments – Procedural requirements – Consultation – Voluntary severance
The applicants were trade unions representing the majority of the workforce of the first respondent (“Telkom”). Telkom gave notice of possible retrenchments to the unions on 15 January 2020. The scale of the retrenchments was significant with 3,000 of approximately 9,500 employees being affected.
During the consultation process following the notice of retrenchments, Telkom provided the unions with a pack of documents, which it alleged included a detailed proposal relating to voluntary separation packages, which included both voluntary severance packages (VSPs) and voluntary early retirement packages (VERPs). Despite disputing that any detailed VSP/VERP proposal was included in the documents, the first applicant (SACU) responded to what Telkom had tabled on voluntary severance packages. In meetings which followed, the unions opposed proceeding to consult on VSPs until other matters were addressed. The impasse between the parties crystallised into a dispute about whether management was going to accede to the unions’ demand that Telkom would take discussion of VSPs off the table until the parties got to the stage of considering alternatives. The unions confirmed that it was in a deadlock with the employer and would refer the matter to court. The following day, Telkom opened up the process of accepting applications for voluntary packages to all affected employees, with the closing date for submitting applications being a week later on 21 February 2020.
The present application was for an order directing Telkom to withdraw the notice issued on 13 February 2020 in which it opened applications for VSPs and VERPs and to withdraw the letter sent to employees on or about the same date offering these packages to its employees; and to engage in further consultations with the unions.
Held that the court was being asked to intervene under the provisions of section 189A(13)(a) of the Labour Relations Act 66 of 1995, which states that if an employer does not comply with a fair procedure, a consulting party may approach the Labour Court by way of an application for an order compelling the employer to comply with a fair procedure. Before the court can intervene it must be satisfied that the employer party has acted in such a way that it has fundamentally prevented or obstructed a fair consultation process in keeping with the intentions of section 189.
The reason for the impasse was that the applicants were not prepared to engage in discussions about the use and content of VSPs at such an early stage of the consultation process. In the unions’ view, the provisions of section 189(3) do not merely list items that the parties should consult on with a view to reaching consensus but also set out the sequence in which such discussions should take place. The court was not persuaded that section 189(3) prescribes a rigid sequence in which consultations can only proceed on a step-by-step basis. Telkom was not the cause of consultations failing. Instead, the cause was the unions’ insistence on setting preconditions for consulting over VSPs.
The application was therefore dismissed.