The CCMA, along with almost every other organisation has been negatively impacted by the COVID-19 pandemic. At the same time there have been an influx of disputes referred to the CCMA, especially retrenchment based dismissals.
The Labour Court in the matter of SATAWU vs IKAPA COACHES (A DIVISION OF CULLINAN
HOLDINGS LTD (currently unreported judgement under case number J683/20) considered the situation where a request for the appointment of a facilitator was made to the CCMA but ultimately no facilitator appointed during the 60 day period from the date that the notices of possible retrenchment were issued to employees.
The faxtual matrix in the matter is essentially the following:
1. The Employer’s business was impacted by the prevailing COVID-19 and National Lockdown situation.
2. The Employer issued notices informing staff of the possibility of retrenchments.
3. SATAWU, acting on behalf of its members, requested that the CCMA appoint a facilitator.
4. No consultations were held between the parties and for reasons unknown no facilitator was appointed by the CCMA.
5. The Employer issued notices of termination once the 60 day period lapsed.
6. SATAWU approached the Labour Court on an urgent basis in accordance with section 189A(13) of the Labour Relations Act seeking to interdict the dismissals.
The Labour Court highlighted the importance of consultations in a retrenchment process.
It found that there was an obligation on SATAWU (as the referring party) to follow up the request for a facilitator and ensure that a facilitator be appointed. It also found that the Employer could not simply sit back and wait for the 60 day period to lapse in order to terminate employees as there is a positive obligation on employers to initiate consultations with the employees and or their representatives which must be adhered to.
The interdict was granted and the parties were required to undertake a consultation process prior to dismissals and further interdicted dismissals for a further 30 days.
The judgement highlights the risk exposure that employers stand to suffer if they do not properly consult as well as the obligations on employees (or their representatives) to be proactive in the handling of disputes.
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