6 January 2010

Section 189(2) of the LRA determines that:
“2)  The employer and the other consulting parties must in the consultation envisaged by subsections (1) and (3) engage in a meaningful joint consensus-seeking process and attempt to reach consensus on—
(a)    appropriate measures—
(i)     to avoid the dismissals;
(ii)    to minimise the number of dismissals;
(iii)    to change the timing of the dismissal; and
(iv)    to mitigate the adverse effects of the dismissals and

(b)    the method for selecting the employees to be dismissed; and
(c)    the severance pay for dismissed employees.”

The parties do not have to reach consensus on the points listed above.  The process of seeking consensus is sufficient.  In Wanda v Toyota SA Marketing the Labour Appeal Court held that there is no legal requirement to reach consensus provided the parties have engaged in a proper joint consensus seeking exercise.  Therefore a retrenchment process won’t necessarily be procedurally unfair if consensus was not reached on each and every single topic listed in section 189(2). 
The period over which consultation takes place can also have a bearing on the procedural fairness of a dismissal for operational requirements.  Thus not allowing sufficient time for consultation, may demonstrate a failure to attempt to reach consensus.  In the case of Dhlamini & others v Faraday Wholesale Meat Supply  it was held that it is totally inconceivable to consult meaningfully with approximately forty people in a time span that ranges between five and ten minutes and  the court inferred that there was no attempt to reach consensus on the appropriate measures envisaged in section 189(2)(a).


The onus to consult on the topics listed in section 189(2) is not only on the employer and it is expected of the employee to engage the employer actively in the joint consensus seeking process.  Where either the employee or the employer can be held accountable for not making a genuine attempt to reach consensus the court will take it into account in determining the procedural fairness of a retrenchment.  Our courts have confirmed on numerous occasions that should both parties be guilty in not participating in the consultation process the court won’t take notice of the failure and none of the parties should benefit from the others failure.
It is also expected of the employer to play a more active role in the consultation process.  This is submitted in the light of the fact that it is the employer who initiates and manages the process.  In the case of SACWU & others v Afrox Ltd   the Labour Appeal Court found it implicit in section 189(2) “that an employer, apart from taking part in the formal consultations on the aspects set out in the section, should also take substantive steps on his or her own initiative to take appropriate measures to avoid the dismissals; to minimise the number of dismissals; to change the timing of the dismissals; to mitigate the adverse effects of the dismissals; to select a fair and objective method for the dismissals . . . and to provide appropriate severance pay for dismissed employees”. Also in Somers v Friedrich-Naumann-Stiftung  it was submitted that it is the employer who kick starts the process by reason of its’ operational requirements, therefore the initial running has to be made by the employer to set out fully its commercial rationale, all relevant information at that stage and what alternatives it has considered, before the employee can engage meaningfully.   The employer can thus not just sit back and expect of the employee to come up with alternatives and suggestions.
It is abundantly clear that the Court expects of both the employer and employee to actively participate in the consultation process and to attempt to reach consensus over a reasonable time period on the topics as listed in section 189(2). The failure to consult on one of the topics listed in section 189(2) might lead to the presumption of unfairness.   Next week we will be discussing the specific topics for consultation as listed in section 189(2) (a) – (c) in more detail.
Me. Lezanne Bouwer
(LLB, LLM (labour law))
General Manager: Legal Assistance


  Labour Relations Act 66 of 1995 (hereinafter referred to as LRA).
  [2003] 3 BLLR 224 (LAC).
  [1999] 8 BLLR 771 (LC).
  [1999] 10 BLLR 1005 (LAC)
  [2000] 3 BLLR 356 (LC)

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