FAWU v SAB and Solidarity (South African Case No: J 435/20)

“The irony that belies this matter is that the applicant complains about the efficacy and reliability of the zoom application (a video conferencing application) as a proposed medium to complete the already commenced facilitated section 189A consultation process, yet the urgent application was moved through the same application.”

Introduction

In this short article, I highlight the important aspects of a matter between FOOD AND ALLIED WORKERS UNION (FAWU) (Applicant) and SOUTH AFRICAN BREWERIES (PTY) LTD (SAB) (First Respondent) SOLIDARITY (Second Respondent). The dispute turned on whether using the zoom application to contact a retrenchment consultation is a fair procedure in terms of the South African Labour Legislation. I will concentrate on this aspect of the dispute because the other parts of the dispute may not apply in the Zimbabwean context.

Facts

In January 2020 the employer started the process of restructuring the workplace. Such required that a retrenchment exercise be implemented. Before the retrenchment, it is necessary to make consultations with the affected parties. These consultations were hindered by the state of disaster that was pronounced by the President of SA in response to the COVID-19 virus. Proposals that the consultation process continues through the ZOOM application were put across, but parties could not agree leading to an impasse. The impasse founded the current application.

The legal question

The question before for court, among others, was “whether conducting

section 189 consultation process through zoom application is acceptable or not and if unacceptable, is a continuation of a section 189 consultation using the application amounting to a procedural unfairness.”[1]

Simply put, the court had to decide if the Labour laws of SA prohibit the use of ZOOM as a medium of consultation for retrenchment purposes. The same question can be posed in the Zimbabwean context. The answer that the court gave may also apply in the Zimbabwean scenario, we submit.

The court’s reasoning

The court’s attitude towards the purported unfairness of the ZOOM application is appropriately captured at the start of this article. It accepted that a new normal was ushered in by the pandemic and noted that the Labour Relations Act does not restrict persons on the form which retrenchment consultations can be undertaken.

The court also reasoned that the usage of the ZOOM application was meant to uphold the health and safety of people because of the pandemic. In buttressing the use of the ZOOM application, the court noted that:

“With the new normal – lockdown period during Covid-19 pandemic – zoom is the appropriate form in which meetings can take place. What is involved in this period is the health and safety issue. Thus, the usage of the zoom application is not panoply. It is a necessary tool to ensure that restrictions like social distancing as a measure to avoid the spread of the virus are observed. Much as the applicant has its convenient preferences, those preferences are self-serving and are ignorant of the bigger issue of health and safety.”[2]

Challenges that can be faced in the process of utilising technology were accepted by the court, but it argued that this should not be used to relegate technology to the extent of making it useless.

In the result the court did not support the argument that the use of the ZOOM application for consultations can lead to procedural unfairness.

Own Comment

Back home it is observed that we are not spared by the new normal. Various mechanisms have been put in place by authorities to curb the spread of the COVID-19 virus. Face to face interaction as we used to know them traditionally are no longer applicable. Retrenchment exercises are also affected

 The use of technology in labour relations can not be escaped. Since our labour laws do not provide a restriction on how technology can be utilised in retrenchment issues and matters incidental thereto, we submit that ZOOM application or any other video conferencing application can be utilised for such purposes. Further, it is submitted that the use of such technology cannot be deemed procedurally unfair.


[1]           FAWU v SAB and Solidarity (South African Case No: J 435/20) at page 2.

[2]              FAWU v SAB and Solidarity (South African Case No: J 435/20) at page 11.

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