Employment law update – Exceptional circumstances – consultation in terms of s 189 v compensation

July 1st, 2014

Lebeya v Minister of Police and Another (unreported case no J728-14, 31-3-2014) (Lagrange J)

By Moksha Naidoo

With 30 years of service, the applicant employee approached the court on an urgent basis seeking to interdict his employer, the South African Police Service (SAPS), from terminating his services until such time as the parties had engaged in consultation as envisaged in s 189 of the Labour Relations Act 66 of 1995 (LRA).

Intending to reduce the number of Deputy National Commissioners within the SAPS (a rank the employee occupied at the time), the second respondent (National Commissioner), advised the employee that he would be transferred to Head of South African Police Service Research Institute at the level of Lieutenant-General (a level the employee was currently at despite occupying the rank of Deputy National Commissioner).

This request was formalised in a letter addressed to the employee, dated 17 March 2014, wherein he was further advised that his failure to take up the post would render him ‘redundant’. In a written response the employee accepted the offer on condition that his rank of Deputy National Commissioner remained the same and, therefore, his transfer would not be taken as either a promotion or demotion.

In reply the National Commissioner informed the employee that his refusal to accept the offer unconditionally rendered him redundant and that Human Resources would begin working out his exit package.

In a further letter to the employee’s colleagues, the National Commissioner announced that the employee, and other employees, had not accepted their respective new roles and would therefore be leaving at the end of March 2014.

On 24 March the employee’s attorney wrote to the National Commissioner inquiring from her the basis, in law, whereby it was a ‘natural consequence’ that the employee’s refusal to accept the new role, caused him to be redundant. In the absence of any reply from the National Commissioner or the SAPS, the employee sought recourse to the Labour Court.

Proceedings at court

Having satisfied itself that the matter was indeed urgent, the court, per Lagrange J, heard argument as to whether the employee has a right to have his termination suspended pending his employer holding consultations with him in terms of s 189.

The respondents’ legal representative argued that under these circumstances it was not open for the employee to approach the court before being dismissed. If the employee wanted to challenge the fairness of his dismissal he could, after being dismissed, refer his dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), attend conciliation and if not settled, refer his dispute to either arbitration or to the Labour Court. Further to this, argued the respondents, the principle that the Labour Court should not hear an unfair dismissal claim under the guise of an interdict had been reiterated in a number of authorities.

In response, the applicant’s legal representative argued that despite the decision to dismiss the applicant having already been taken, he remained employed until the end of March 2014. The right the employee therefore sought to enforce was the right to consult with his employer in circumstances where his intended dismissal was as a direct result of the employer’s operational requirements.

The court began by noting that, while it had the authority to intervene in incomplete proceedings which may result in dismissal, it should do so only in exceptional circumstances. The question before the court was, therefore, whether the circumstances in casu could be considered to be exceptional.

It was clear to the court that if the applicant had challenged his dismissal after being formally dismissed and if it was found that his dismissal was procedurally unfair for lack of consultation, the employee would not be in the same position he would be in had he been given the opportunity to be a part of a joint consensus-seeking process prior to dismissal.

Proper consultation could see the retrenchment being avoided or the employee being offered a suitable alternative position. Under both instances the employee would not be left without a job. However, in the absence of consultation, any subsequent and consequential finding that the employee’s dismissal was unfair for lack of proper consultation, the only remedy open for the court to award (as would be the case for any dismissal which is found to be procedurally unfair but substantively fair) is compensation.

Therefore, consultation brought with it certain advantages which would be lost should the employer dispense with such process and could not be restored by granting an employee compensation following a finding that the retrenchment was procedurally unfair. Unlike other forms of dismissal, where any procedural defect in a dismissal is largely restored by a de novo hearing before an arbitrator or judge, it would be meaningless – where an employee is dismissed as a result of the employer’s operational requirements – to achieve proper consultation after the employee had been dismissed.

The court went on to say:

‘It is true, after his termination the applicant could complain that he was retrenched in a procedurally unfair manner. The procedural fairness of his retrenchment will, to some extent, be measured against the requirements of section 189, though that will not necessarily be determinative of the issue. If the applicant subsequently does proceed to challenge his retrenchment and succeeds only in establishing that it is procedurally unfair, he will not regain an opportunity to explore what alternatives that process might have yielded. He will be confined to payment of compensation as relief’ (para 17).

In finding the employee had a clear right to consultation prior to his dismissal and on the basis that he remained in the employ of the SAPS, the court granted the interdict and thus prevented the respondents from dismissing the employee until such time as the parties had engaged in proper consultations as envisaged in terms of s 189. The court further held the respondents jointly and severally liable for the costs of the application.

Moksha Naidoo BA (Wits) LLB (UKZN) is an advocate at the Johannesburg Bar.

This article was first published in De Rebus in 2014 (July) DR 49.