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

SAB contemplated dismissing employees based on operational requirements in January 2020. A section 189(3) notice was issued indicating approximately 500 employees would be affected, though this number ultimately increased to over 1200. A facilitated consultation process commenced under section 189A of the LRA with a CCMA facilitator. Following the declaration of a state of disaster and COVID-19 lockdown restrictions, physical consultation meetings became impossible. The CCMA and SAB proposed continuing the facilitated consultation process using the Zoom video conferencing application. FAWU refused to participate in consultations via Zoom and insisted the process be suspended until after lockdown ended. The SAB continued with the consultation process using Zoom with other consulting parties (employee representatives and Solidarity). FAWU subsequently launched an urgent application claiming procedural unfairness on three grounds: the discrepancy in employee numbers, the implementation of an organogram without agreement, and the use of Zoom for consultations. The facilitator recused himself after FAWU objected to the Zoom process, and a new facilitator was appointed.

• Whether conducting a section 189A consultation process via Zoom video conferencing constitutes procedural unfairness
• Whether the increase in affected employee numbers from the initial notice (500) to the ultimate number (1200) constituted procedural unfairness
• Whether implementing an organogram structure without full consensus during consultation amounted to procedural unfairness
• Whether a consulting party's refusal to participate in consultation in the manner proposed by the employer results in procedural unfairness when the employer continues consultation without that party
• The scope of the Labour Court's powers to intervene in an ongoing section 189A consultation process
• Whether consultation by alternative means (video conferencing) during COVID-19 lockdown restrictions is procedurally fair

1. The matter was heard as one of urgency. 2. The application was dismissed. 3. No order as to costs.

Where an employer offers to consult in a particular manner (including through video conferencing during COVID-19 restrictions) and the other consulting party refuses to participate in the proposed manner through no fault of the employer, the employer's completion of the consultation process without that party does not amount to procedural unfairness. Procedural fairness in retrenchment consultations is determined by compliance with sections 189 and 189A of the LRA and the Code of Good Practice on Dismissals Based on Operational Requirements. The LRA does not prescribe the specific form that consultations must take, and video conferencing is a procedurally fair method of consultation, particularly during COVID-19 lockdown restrictions when it serves health and safety imperatives. The Labour Court's power in section 189A(13) applications is limited to ensuring procedural compliance and judicially managing the process; it has no power to intervene in or dictate to consulting parties how to conduct consultations in the absence of identifiable procedural unfairness. A party that abandons the consultation process or rejects offers to consult cannot subsequently claim procedural unfairness.

The Court observed the irony that FAWU complained about the efficacy and reliability of Zoom as a consultation platform while using the same application to argue its urgent application before the Court. The Court noted it expected fewer section 189A(13) applications in facilitated processes given the expertise and statutory powers of facilitators to decide procedural matters with final and binding effect. The Court commented that technology, like any tool, may experience 'teething problems' (such as connectivity issues) but this does not render it obsolete or procedurally unfair - analogous to when a projector fails during a physical presentation. The Court remarked that FAWU's preference for suspending consultations until after lockdown was 'self-serving and ignorant of the bigger issue of health and safety.' The Court expressed amazement that FAWU's counsel instantaneously rejected an in-court offer to resume consultations on outstanding topics without seeking time to obtain instructions. The Court noted that the procedure in section 189A(13) exists to preserve job security, and parties approaching the Court for a fair process invoke the audi alteram partem principle, yet a party rejecting an offer to be consulted in open court cannot legitimately lament about procedural unfairness.

This judgment is significant as it established important principles for conducting retrenchment consultations during the COVID-19 pandemic and potentially other future emergencies. It confirmed that: (1) consultation processes under sections 189 and 189A of the LRA may validly be conducted through video conferencing technology when circumstances (such as lockdown restrictions) prevent physical meetings; (2) the form of consultation is not prescribed by the LRA and may adapt to circumstances; (3) where an employer offers to consult in a particular manner and the other consulting party refuses without justification, the employer may proceed without that party without rendering the process procedurally unfair; (4) the Labour Court's role in section 189A(13) applications is to ensure procedural compliance, not to manage or dictate the consultation process itself - that role belongs to the facilitator; (5) parties cannot claim procedural unfairness when they have refused to participate in consultation that is otherwise procedurally compliant. The case also clarified that issues relating to selection criteria and structural changes are matters of substantive rather than procedural fairness where consultation has occurred. The judgment adapted labour law principles to the 'new normal' of COVID-19, recognizing that health and safety considerations justify alternative consultation methods.