Solidarity obo Members v Barloworld Equipment Southern Africa and Others

Barloworld Equipment Southern Africa initiated a large-scale restructuring during 2020, citing the operational impact of Covid-19. It issued a section 189(3) notice under the Labour Relations Act 66 of 1995 (LRA) and requested CCMA facilitation under section 189A. Consultations were held with various trade unions, including Solidarity, representing affected employees. A major point of dispute was the selection criteria for retrenchment, particularly Barloworld’s inclusion of transformation considerations (linked to employment equity) alongside LIFO and skills. Despite ongoing consultations, Barloworld issued termination notices in early August 2020. Solidarity contended that there was no meaningful joint consensus-seeking process as required by section 189(2) and sought relief under section 189A(13) to set aside the dismissals and compel renewed consultations. The Labour Court dismissed the application, holding that the complaints concerned procedural or substantive fairness rather than non-compliance with a fair procedure.

Leave to appeal was granted. The appeal on the merits was dismissed. The appeal against costs was upheld, and the Labour Court’s costs order was replaced with an order that each party pay its own costs.

The case clarifies the narrow scope of section 189A(13) applications in mass retrenchments and reinforces the jurisdictional limitation imposed by section 189A(18). It confirms that the Labour Court’s role under section 189A(13) is supervisory and directed at ensuring compliance with statutory procedures, not determining procedural or substantive fairness. The judgment provides important guidance on how consultation disputes and selection-criteria challenges must be pursued in South African labour law.