SUMMARY

An employee (who is not represented by a trade union), during the purposes of a retrenchment exercise, is entitled in terms of section 16 read with section 189(4)(a) of the Labour Relations Act 66 of 1995, as amended (“LRA”) to approach the CCMA for the purposes of ensuring the employer discloses all information relevant to the retrenchment exercise. An employer, in such circumstances, may be interdicted from dismissing the employee until such time as the CCMA proceedings have run its course.

COURT’S DECISION

In the case of De Klerk v Project Freight Group CC (C647/2014) [2014] ZALCCT 44 (14 August 2014) an employee, Mr De Klerk, approached the Cape Town Labour Court in order restrain his employer, the Project Freight Group, from implementing its decision to dismiss him for operational requirements pending the outcome of a dispute that he referred to the CCMA for the disclosure of information.

The parties had embarked upon a retrenchment exercise, as contemplated by section 189 of the LRA. During the exercise the employee had requested certain financial information from his employer, which request was denied.

The employee then referred a dispute to the CCMA, in terms of section 16, read with section 189(4), of the LRA, requesting the outstanding financial information he required. The employee sought an undertaking from his employer than no further steps would be taken in the retrenchment exercise pending the determination of such dispute. The employer refused to provide such an undertaking.

As a result the employee approached the Labour Court requesting that the retrenchment proceedings be interdicted pending the outcome of the CCMA dispute. In response the employer argued that the employee is not entitled to approach the CCMA in terms of section 16 as the CCMA does not have jurisdiction to entertain his referral. This is because, so the employer contended, only trade unions have such a right.

However, the court held, in restraining the employer from implementing its decision to retrench prior to the resolution of the CCMA dispute, that section 16, read together in the context of section 189(4), does allow an employee (where there is no trade union present) to approach the CCMA directly for the purposes of requiring his employer to disclose information in the context of retrenchment exercises. The court, however, proceeded to criticise the employee for not ensuring that the CCMA dispute was resolved as expeditiously as possible and ordered the parties to jointly approach the CCMA in order to ensure the same was resolved as quickly as possible.

Importance of the case

This case illustrates, firstly, that an employee is entitled to approach the CCMA directly in order to obtain information which has been refused (provided he is not represented by a trade union who would then be responsible for doing so on his behalf) and, secondly, that retrenchment proceedings should not be finalised before the conclusion of such a dispute. This latter point is subject to the proviso that the parties must obviously try and resolve the CCMA dispute as expeditiously as possible and not to utilise such a mechanism as a means of unduly delaying retrenchment proceedings.

Written by Jacques van Wyk, Director; and Andre Van Heerden, Associate, Werksmans Attorneys