IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT BRAAMFONTEIN)
CASE NUMBER :J954/98
DATE:12.5.1998

In the matter of:
	FOOD AND ALLIED WORKERS UNION		1st  Applicant
	BILLY LANZAYE AND 25 OTHERS		2nd to 26th Applicants
and
FREDDY HIRSCH GROUP (PTY)
	LIMITED						Respondent

J U D G M E N T

	Constitution of the Court :	Revelas J

	Date of Hearing 		 :	8 May 1998

	Date of Judgement		 :	12 May 1998

	On behalf of Applicant 	 :	ADVOCATE SPITZ
	Instructed by 			 :	CHEADLE THOMPSON & HAYSOM

On behalf of Respondent 	 :	D J COETSEE
COETSEE VAN RENSBURG INC

REVELAS J:  
	[1]	On 30 April the applicants, the Food and Allied Workers' Union, (the first applicant) representing Billy Lanzaye and 25 Others, (the individual applicants) approached the Labour Court in Johannesburg on an urgent basis and obtained an interim order compelling the respondent to comply with the provisions of section 189 of the Labour Relations Act, 66 of 1995 (hereafter “the Act”).  In other words, a mandatory interdict was obtained.  The effect of the relief sought,  was to restrain the respondent from retrenching the individual applicants who are members of the first applicant before consulting with them in accordance with the requirements of section 189 of the Act.

	[2]	On 8 May 1998, when the rule was discharged, the proposed retrenchments had not yet taken place at that stage and I was informed on 11 May 1998 that they still have not been implemented yet.  

	[3]	On 11 May 1998 I discharged the rule issued by myself on 30 April 1998.  The first applicant has indicated that it would apply for leave to appeal in this matter. I am inclined to grant such leave to appeal.   The issue at hand is a fairly problematic issue.  The Labour Appeal Court may very well come to a different conclusion than I have come to.  

	[4]	I gave short reasons for my decision and  I reserved the right to amplify those reasons.  

	[5]	It is the case for the applicants that there was no substantial compliance with the Act in that there were no adequate consultations or attempts by the respondent to consult with the applicants.  The core of the applicants’ case is that the decision to retrench had been taken prior to any consultations.

	[6]	In its answering affidavit, the respondent alleges that it did have meetings with the first applicant but that the first applicant did not want to consult on certain occasions when invited to do so.  This much is common cause.

	[7]	It was contended on behalf of the applicants that because the decision to retrench had already been taken, there was hardly any point in consulting about how it was to be effected.  The respondent denies that it had taken such a decision prior to the consultations with the first applicant.

	[8]	Section 43 of the former Labour Relations Act, 28 of 1956, (hereafter “the former Act”) provided for a status quo order.  In terms of that section, parties could approach the Industrial Court on affidavit, prior  to the hearing of the matter and the court could grant reinstatement or other interim relief.  The Act governing this matter, does not have such a provision and I believe that such a provision was deliberately 
omitted from the Act.   Therefore, the court may not set aside a retrenchment which has already taken place, in an urgent application, prior to conciliation or adjudication. The question which now falls to be decided, is whether the court, in the form of final relief, may grant an order which has the effect of preventing a retrenchment to be implemented.

	[9]	Whether the respondent consulted in accordance with the requirements of the Act, is difficult to determine on the papers. Attached to the respondent's answering affidavit are copies of letters and faxes to the first applicant which are certainly not indicative of any wilfulness on its part not to consult properly.  

	[10]	It is also common cause that the respondent was considering the outsourcing of certain of the work performed by the individual applicants. The  outsourcing appears to be a question of great concern to the applicants who feel that this option should be investigated properly.   There is a suggestion by the applicants that the outsourcing is nothing more than a disguised transfer of the respondents business to circumvent the provisions of the Act.  The applicants believe that to investigate these issues properly, they are entitled to certain information which must be disclosed by the respondent which the respondent allegedly has failed to do.  This is also in dispute.  A dispute about the disclosing of information, should have been referred to the Commission for Conciliation, Mediation and Arbitration (hereafter the “CCMA”) in terms of sections 16(6) and 189(4) of the Act and despite its urgent nature.    The CCMA, I’m certain, would have provided for an urgent conciliation process, given the circumstances.  The Labour Court has a general discretion to refuse to determine any dispute if the court is not satisfied that an attempt has been made to resolve the dispute through conciliation.  This is provided for in section 157(4)(a) of the Act. The dispute about the disclosure of information was not referred to the CCMA,  not even after 30 April when the interim relief was granted.  It was an option not taken up by the applicants.
	[11]	I do not accept the applicants’ argument that there is no other alternative remedy available to the applicants in the situation in which they find themselves.  For a court to compel an employer to comply with the Act, prior to retrenching its employees, is in itself an extraordinary measure. In a situation where an employer is about to retrench but has not consulted at all, then this Court would come to the rescue of the employees and  grant  a mandatory order compelling the employer to consult.  Specific performance is actually what is ordered.  Where however there has been some form of consultation, the adequacy of which is in dispute, such a dispute can hardly be determined on affidavit.

	[12]	It is very difficult for a court to decide on affidavits the extent to which the employer has consulted, whether it has consulted properly, or whether it has provided all the necessary information requested and generally, whether it has satisfied the requirements of section 189 of the Act in respect of consultations prior to retrenchment.   

	[13]	In so far as the applicants also allege that the decision to retrench has already taken place,  the court cannot remedy that fact by giving a final order which has the effect that the respondent may not retrench.   That is essentially what is sought by the applicants.

	[14]	The disputes of fact in this matter, as they appear from the affidavits, would in my view be best resolved in a conciliation process or a trial.  That is after all the remedy provided for by the Act. 

	[15]	Counsel for the applicants contended that this difficulty could be overcome by granting the relief sought, but that a time limit could be imposed on the consultation process ordered.  I have considered the effect of such an order.   If the period stipulated in such an order lapses and it is still felt that there was non-compliance with section 189 of the Act, the court may be approached again. A procedure would thus be set in motion whereby the retrenchment process is monitored from the benches of the Labour Courts.
Such a scenario is in my view, not what the drafters of the Act had in mind.  If it was, the Act would have made provision for such a procedure.  

[16]	The court finds itself in the invidious position of having to decide the issue of non-compliance with the guidelines set out in section 189 of the Act, on papers containing disputes of fact.  If this matter is referred to oral evidence, as argued for by counsel appearing on behalf of the applicant, that would   amount to a  trial within a trial for which no provision has been made in the Act.

	[17]	The applicants also bear an onus to prove that they are  entitled to this final order sought by them. (See PLASCON EVANS PAINT LTD v VAN RIEBEECK PAINTS (PTY) LTD 1984(3) SA 623 (A) at (634E-G)).  Material facts were not mentioned in the applicants’ founding papers, such as that  invitations to consult weren’t accepted.  These facts and other important facts material to this matter are mentioned in the applicants’ replying papers for the first time.  I am therefore not satisfied that on the papers, the applicant discharged this onus.

	[18]	For all the aforesaid reasons I have refused the applicants the relief sought by them on the return day.
 	
[19]	I also make the following order:

[1] Leave to appeal is granted in this matter.  

	[2]	The interim order granted on 30 April 1998 remains effective until finalisation of the 
appeal.

                         
REVELAS J
This judgement is also available on the Internet at:
http://www.law.wits.ac.za/labourcrt.