Food and Allied Workers Union (FAWU) v South African Breweries (Pty) Ltd and Another

South African Breweries (Pty) Ltd (SAB) initiated a large-scale retrenchment process in January 2020 due to operational requirements and issued a section 189(3) notice under the Labour Relations Act 66 of 1995 (LRA). Given the scale of the contemplated retrenchments, the process was facilitated in terms of section 189A, with a CCMA-appointed facilitator. Initially, consultations occurred through physical meetings. Following the declaration of the Covid-19 national state of disaster and lockdown, the CCMA proposed that consultations continue via the Zoom video-conferencing platform. FAWU objected to the use of Zoom, raised concerns about procedural fairness, and refused to continue participating in the consultation process unless physical meetings resumed or the process was halted. SAB proceeded with the consultation process and ultimately issued notices of termination after the statutory 60-day period had elapsed. FAWU approached the Labour Court urgently under section 189A(13), alleging procedural unfairness relating to (a) the increase in the number of affected employees, (b) the implementation and population of a new organogram, and (c) the continuation of consultations via Zoom.

The application was dismissed. No order as to costs was made.

This judgment is significant for confirming that consultation processes under sections 189 and 189A of the LRA may lawfully and fairly be conducted via electronic means such as video conferencing, particularly in extraordinary circumstances like the Covid-19 pandemic. It clarifies the limits of the Labour Court’s intervention under section 189A(13), emphasising that the Court cannot dictate the manner of consultation where no identifiable procedural unfairness exists. The case reinforces the principle that a party cannot claim procedural unfairness after refusing to participate in a consultation process offered by the employer.