This article was written by Verushka Reddy, a director at Norton Rose Fulbright South Africa Inc
A failure to refer a dispute to conciliation or retrenching employees before the expiry of the mandatory 30-day periods prescribed are procedural flaws and do not result in the dismissals being invalid. The latest judgment relates to retrenchments in terms of section 189A of the Labour Relations Act, where there is no request for or agreement to facilitation. The Labour Appeal Court in Edcon v Karin Steenkamp and Others handed down a judgment on 3 March 2015 and overturned its judgment in De Beers Group Services (Pty) Ltd v National Union of Mineworkers  4 BLLR 319 (LAC). Edcon was represented by the Norton Rose Fulbright employment and labour team.
Section 189A provides for a process to be followed through facilitation by the CCMA or a bargaining council, or through a process where there is no facilitation. Where there is no facilitation, the dispute must be referred to conciliation no sooner than 30 days have passed since the notice of possible retrenchments was issued. Thereafter, a further 30 days must pass before an employer is entitled to retrench employees.
Section 189A (2)(a) provides that in a dismissal covered by section 189A, an employer “must” give notice in accordance with the provisions of section 189A. In De Beers the Court held that a notice of termination issued before the second 30-day period had passed, was not issued in compliance with section 189A(2)(a) and consequently the dismissal was invalid. The Court’s finding was based on the word “must”.
In Edcon the Court held that the fact that the notices were issued prematurely did not necessarily have the effect of invalidating the dismissals. The Court took into account the fact that there is no indication in section 189A that non-compliance should result in invalidity of the dismissal. On the contrary, section 189A provides distinct remedies for both procedural and substantive fairness. Visiting the ensuing dismissals with invalidity could have capricious, disproportionate or inequitable results. Finding that an invalid notice did not result in a dismissal would also imply that the right to call a retaliatory strike in section 189A could not be triggered. A declaration of invalidity similarly would result in an employer not being able to defend the substantive fairness of the dismissal. This would be contrary to the entire scheme of chapter 8 of the LRA.
Where a facilitator is not appointed, a failure to refer a dispute to conciliation before issuing notice of termination, or giving notice of termination before the expiry of either prescribed time period are procedural flaws that do not render the dismissals invalid. A court considering a dismissal may have regard to the substantive and procedural fairness of the termination.