Disciplinary hearings via Skype? Consulting via Zoom? Are such processes allowed? Electronic platforms have become more accessible. The Covid-19 pandemic has alerted us to opportunities that were not obvious before. Does this mean that we may embrace these platforms in labour and employment law processes?
With the restrictions imposed as a result of the pandemic, it was just a matter of time before the procedural fairness of an employer’s decision to conduct redundancy consultations remotely would arise. In the Labour Court case of FAWU vs SAB & another (2020), the company had embarked on a large-scale retrenchment process for which a facilitator was also appointed. This preceded the declaration of a state of disaster. After the state of disaster was declared, the company proposed to continue with the process via Zoom. The facilitator was happy with this (in line with the CCMA’s recommendations at the time for commissioners to use Zoom) but the union insisted that the process, as in the past, should be conducted face-to-face once the state of disaster has been lifted. The employer disagreed, upon which the union approached the Labour Court for an order to declare that it would be procedurally unfair to conduct the process on line.
‘New normal’ during pandemic
The court made short shrift of the union’s argument that conducting the process via Zoom would be procedurally unfair in terms of the Labour Relations Act (LRA) on the basis that, first of all, the pandemic created a `new normal’ in terms of which certain restrictions were imposed on business and other activities for health and safety reasons. Secondly, the LRA – and more particularly the Code of Good Practice: Operational Requirements – does not prescribe the form which a consultation process must assume, as long as the principles of the Act and the Code are applied. Thirdly, the court noted that section 189 itself shows `traces of a consultation by correspondence’. And, finally, the facilitator himself suggested the use of Zoom. The court was not prepared to second-guess his judgment.
Does this mean that employers may now freely dispense with the face-to-face hearings and other processes and conduct those via Zoom or other, similar applications? While it is true that neither the LRA, nor the various Codes of Good Practice prescribe any format for a hearing or consultation, it needs to be kept in mind that this case dealt with an unusual situation; i.e. the pandemic and the state of disaster declared in an effort to combat it. There was, in other words, a good public policy reason for deviating from normal practice. May employers deviate once the restrictions resulting from the pandemic have been lifted? Is there scope for the ‘new normal’ to continue?
Audi alteram partem
The ‘normal practice’ of face-to-face engagement has been established over the course of history, in the absence of current technology. Not much thought has gone into the consideration of alternatives. However, the ‘audi alteram partem’ principle (i.e. the opportunity for a person to state his or her case) has been and remains fundamental in all situations where there could be adverse outcomes to the affected persons. It is not only a matter of procedure. If persons are unable to state their case properly, it could affect the substantive fairness of the outcome.
Before departing from the current practice of conducting hearings or consultations in person, there are several considerations employers and presiding officers need to take into account, including the following:
- Are they bound by a collective agreement (e.g. in a bargaining council) or by their internal procedures to deal with the matter in a certain way procedurally?
- Is the nature of the matter such that the evidence or subject-matter can be properly traversed without face-to-face engagement (e.g. a large number of people participating)?
- Is it possible to communicate effectively? (Employees, representatives or interpreters who are unfamiliar with electronic platforms may be intimidated or confused, resulting in employees’ inability to properly defend themselves, or in the case of a consultation process, to make a meaningful contribution.)
- How would the evaluation of evidence be affected? (E.g. it could be challenging to observe the demeanour of a witness for the purpose of making a credibility finding.)
- Could the matter mainly be dealt with face to face, but with certain exceptions (e.g. a person being unable to attend due to illness, being in jail, or too remote to be reasonably expected to attend in person)?
There may very well be other considerations, not mentioned above, that may only become apparent in the light of the particular circumstances.
Where it makes practical sense for employers to make use of online platforms, they should give consideration to the above. In addition, before proceeding, the person chairing the hearing or leading the process should ask participants whether they have any objections to online participation. Any objections should be carefully evaluated before proceeding.