1 IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
(HELD AT BRAAMFONTEIN)
Case Number: CCT 220/2022 LAC case number: JA49 /2020 In the matter between:-
REGENESYS MANAGEMENT (PTY) LTD
t/a REGENESYS Applicant
(Respondent in cross-appeal)
And
SIBONGILE CHARLOTTE ILUNGA First Respondent
MARIA ANTONIA OLIVEIRA DOS SANTOS Second Respondent
MAPASEKA PATIENCE NKODI Third Respondent
NOMPUMELELO MAHLANGU Fourth Respondent
SUSARA MARIA NORTJE Fifth Applicant in cross-appeal
BETH MANN Sixth Applicant in cross-appeal
STACEY-LEIGH CHALKLEN Seventh Applicant in cross-appeal
2 REGENESYS’ WRITTEN SUBMISSIONS IN RELATION TO THE
APPLICATION FOR LEAVE TO CROSS-APPEAL
1. These heads address the employees’ cross-appeal, concerning the findings regarding the procedural fairness of their dismissals. The LAC held that the Labour Court lacked jurisdiction to determine the question procedural fairness, in trial proceedings concerned with the substantive fairness of the dismissals for operational requirements.
2. The core submission is that the law on this topic is settled, and there are no compelling reasons why this Court should reopen the debate, in circumstances where it has made clear and authoritative findings on the proper interpretation of section 189A(13) and (18).
3. All but two of the employees were dismissed by notice on 24 June 2015.
They referred unfair dismissal disputes to the CCMA during July 2015.
On 8 September 2015, the employees brought an urgent application in the Labour Court, in terms of section 189A(13), in which they sought an order directing that they be reinstated, pending compliance with a fair consultation procedure, alternatively that they be compensated for procedurally unfair dismissals. 1
1 Notice of motion, Vol 1 p2.
3 4. The reason why the urgent application was launched some 2 ½ months after notice of termination was received, and some 1 ½ months after the notice period had expired, was because the employees alleged that they were unaware that their dismissals were regulated by section 189A of the LRA, and only became aware of this fact at the CCMA conciliation in around mid-August 2015.2
5. Regenesys opposed the urgent application, and on 8 October 2015, Gush J, sitting in the Labour Court, granted condonation for the late filing of the application, and ordered that the merits of the application be consolidated with the unfair dismissal dispute referred by the applicants, in terms of section 191(5)(b) of the LRA, so that the trial court could consider both the issues of substantive and procedural fairness.
6. This is precisely what the trial court did. Prinsloo J allowed a full ventilation of evidence relating to both procedural and substantive fairness, and made findings in respect of procedurally unfair dismissal.
7. On appeal, the Labour Appeal Court held as follows:3
7.1. It was incompetent for Gush J to have issued the consolidation order, as it violates section 189A(18) of the LRA.
2 Founding affidavit in s189A(13) proceedings, Vol 1 p9, para 24.
3 LAC judgment, Vol 16 p1532, para 13-17.
4 7.2. Prinsloo J erred in conducting the trial in accordance with the order granted by Gush J, as the trial court had no jurisdiction to determine whether the dismissals were procedurally fair.
7.3. All findings of procedural unfairness must be set aside.
8. The Labour Appeal Court based its findings on the decision of this Court in Steenkamp & others v Edcon Ltd (2019) 40 ILJ 1731 (CC) (Steenkamp II). It said:
“[15] In Steenkamp & others v Edcon Ltd 2 (Edcon), the Constitutional Court noted that the primary purpose of section 189A(13) is thus to allow for early corrective action to get the retrenchment process back on track.
Section 189A regulates dismissals for operational requirements by employers with more than 50 employees, with it found that section 189A(18) expressly deprives the Labour Court of jurisdiction to determine procedural fairness in such cases. As a result, it was found that the Labour Court erred in consolidating the application for compensation in respect of procedural unfairness under section 189A with the main action and refer it to trial, on the basis that:
‘The jurisdiction of the Labour Court to adjudicate on the procedural fairness of a dismissal based on the employer’s operational requirements has been ousted by section 189A(18) of the LRA. As the Labour Appeal Court correctly stated, the Labour Court’s jurisdictional competence “cannot be read disjunctively from s 191(5)(b)(ii) of the LRA and s 189A(18) of the LRA”. (Emphasis added)
5 9. The applicants now seek to argue that the LAC’s finding was wrong, as the underlying facts in Steenkamp v Edcon are so markedly different, that the legal principles in that case do not apply here. We respectfully disagree. While the facts may be different, and while the degree of delay is far greater in Steenkamp v Edcon, the legal principles applicable, apply equally here. The key principles are:
9.1. Section 189A(18) ousts the jurisdiction of the Labour Court to determine procedural fairness, when determining the substantive fairness of dismissals where section 189A applies.
9.2. Section 189A(13) provides a partial clawback of jurisdiction, but this is limited to the court exercising a measure of oversight over the consultation process, and intervening to get things back on track at the time they go awry, or very shortly thereafter.
9.3. Section 189A(13)(d), which cannot be read disjunctively from the rest of that section, is not a self-standing jurisdictional ground for determining procedural fairness long after the fact, and does not give the Labour Court the jurisdiction to do so in a trial under section 189A(18). A procedural order to this effect (such as that granted by Gush J, and given effect to by Prinsloo J), is simply wrong. As this Court held, unanimously, in Steenkamp II:
6
“The Labour Court misunderstood the jurisdictional competence conferred on it by section 189A(13) of the LRA. This much is clear if regard is had to the order granted by the Labour Court. In its order the Labour Court consolidated the application for compensation in respect of procedural unfairness under section 189A with the main action and referred it to trial. This is wrong.
The jurisdiction of the Labour Court to adjudicate on the procedural fairness of a dismissal based on the employer’s operational requirements has been ousted by section 189A(18) of the LRA. As the Labour Appeal Court correctly stated, the Labour Court’s jurisdictional competence ‘cannot be read disjunctively from section 191(5)(b)(ii) of the LRA and section 189A(18) of the LRA’”’4.
10. This Court could hardly have expressed itself more clearly on the question. It did so unanimously. It is submitted that the Labour Appeal Court correctly applied this binding precedent to the matter before it, and that its findings on the question of procedural unfairness are undoubtedly correct.
11. Steenkamp II followed on Steenkamp I. In a further unanimous decision of this Court, in Barloworld, the Court had this to say about Steenkamp I and II:
[67] The above excerpts read with section 189A(18) remove disputes about procedural fairness, as a distinctive claim or cause of action, that a dismissal on the basis of operational requirements was procedurally unfair, from the adjudicative reach of the Labour Court.
4 Steenkamp & others v Edcon Ltd (2019) 40 ILJ 1731 (CC) (Edcon II) at para 70
7 [68] It follows from this jurisprudence that, in order for the Labour Court to adjudicate a claim of the unfairness of a procedure in dismissals for operational requirements, the Court must be approached in terms of section 189A(13) on the basis of non-compliance with the procedures prescribed by sections 189 or 189A of the LRA. … Steenkamp II further holds:
“In exercising its powers in terms of section 189A(13) of the LRA, the Labour Court thus acts ‘as the guardian of the process’ and exercises a ‘degree of judicial’ management or oversight over the process. The aim is to proactively foster the consultation process by allowing parties to seek the intervention of the Labour Court on an expedited basis to ensure that procedural irregularities do not undermine or derail the consultation process before it ends.”
[69] This approach to section 189A(13) has been followed by the Labour Court in numerous matters …
[71] The following emanates from the above discussion. Firstly, the power of the Labour Court to adjudicate the procedural fairness of retrenchment consultations is limited to the “fair procedure” that is prescribed in sections 189 and 189A, which give effect to section 188.
Secondly, it is evident that a party seeking the Labour Court’s intervention when an employer fails to follow a fair procedure during retrenchment consultations must approach the Court for relief in terms of section 189A(13). This is because the Labour Court is barred from determining the procedural fairness of a dismissal based on operational requirements when it is approached in terms of section 191(5)(b)(ii).
Thirdly, it is evident that these provisions are in place to serve the interests of expediency and efficiency, and to ensure that the procedural requirements of the LRA are followed when parties engage in consultation in anticipation of a large-scale retrenchment, and that any defects in the procedures can be cured before jobs are lost. This policy choice was adopted to avoid the courts having to adjudicate alleged
8 procedural unfairness in the aftermath of mass retrenchments. It was self-evidently a sensible legislative decision, for it reduces the likelihood of parties being exposed to the inconveniences and complications that could arise from a court ordering them to unscramble the proverbial scrambled egg. Of course section 189A(13) does envisage, and apply to a situation where a dismissal has already taken place. Paragraph (c) of this section empowers the Court to direct “the employer to reinstate an employee until it has complied with a fair procedure”. Because the section 189A(13) process is meant to take place immediately and to be finalised expeditiously, the paragraph (c) power does not detract from the metaphor of the scrambled egg, because the scrambling will not be complete.” (Emphasis added).
12. The issue on which the Employees seek leave to appeal, is a matter of settled law, which was correctly applied by the Labour Appeal Court.
There are no prospects of this Court overturning its decisions in Steenkamp I, Steenkamp II and Barloworld, and no pressing policy reasons for this Court to revisit these judgments, or the interpretation of section 189A(18) of the LRA, which is abundantly clear in its scope.
13. The Employees’ application for leave to appeal should be dismissed.
Greg Fourie SC Dirk Groenewald Counsel for Regenesys
Chambers, Sandton and Pretoria 16 May 2023
