Officials of the South African Municipal Workers’ Union (Samwu) have effectively been found to blame for the dismissal of seven members working in tourism on the KwaZulu-Natal south coast. That’s because the union pulled out of talks aimed at finding alternatives to dismissal in the wake of Covid and other major changes that had affected tourism in the province by late 2020.
It’s a sad story, well laid out by presiding judge Connie Prinsloo, who made it clear that her hands were tied by the union’s attitude.
The seven Samwu members had worked for the Ugu District Municipality’s tourism entity, Ugu South Coast Tourism (USCT), from July 1 2009, running local visitor information centres. They were dismissed in August 2020 after an unsuccessful engagement process concerning restructuring of the tourism outfit.
The Samwu members’ complaint about their dismissal ended up in the labour court, where judgment has now been given.
Samwu’s case, made on behalf of the seven members, was that USCT’s conduct in retrenching them contravened labour law because management failed to “engage meaningfully” with them.
But it turned out that Samwu didn’t understand the sections of the labour law that apply where an employer is considering restructuring or other changes that could involve retrenchment.
In such a case, management must send notices to potentially affected employees putting its cards on the table: why restructuring is needed, for example, as well as the plan that management is considering, how many workers will be affected, when the retrenchments will happen and so on. This is to give the affected staff an understanding of the situation so that they may come up with alternative proposals that might reduce layoffs.
In this case, however, Samwu’s top local officials claimed that the details provided by the employer indicated it had already reached a firm conclusion and that this made consultation a charade. They demanded that the notices be withdrawn before they would consult — something management couldn’t do, as the law requires that the notices be served on potentially affected staffers in advance.
The employer repeatedly urged the union and the staff members to join the consultation, explaining that though the visitors’ centres would be closed under the restructuring plan, there could be new opportunities via envisaged call centres.
On August 4 2020 it finally seemed that progress was being made and Samwu, with the potentially affected staff, agreed on a time frame for counterproposals. The very next day, however, a letter from Samwu’s lawyers again demanded the withdrawal of the employer’s notice, claiming consultation was otherwise pointless as the outcome had been pre-decided and the employer was acting in bad faith.
This was effectively the end of the road for negotiations, and the affected employees were subsequently dismissed.
[The dismissals] could have been avoided had [Samwu] acted differently, reasonably and responsibly with the interest of the workers in mind
— Connie Prinsloo
‘Steering in the wrong direction’
In her decision, Prinsloo stressed that employers don’t need the permission of employees to make policy shifts, but affected employees must be consulted where a new structure would result in retrenchments.
Samwu claimed there wasn’t meaningful consultation in the case, but the judge disagreed, saying the union didn’t have a proper understanding of the law on this question. This had led to its “unreasonable and untenable demand” that the employer’s notice that it was considering retrenchments be withdrawn. Though meetings were disrupted by Samwu’s objections and demands, the parties reached a “firm understanding” about time frames for proposals at the August 4 meeting.
But in Prinsloo’s view, the letter sent on August 5 by Samwu’s lawyers “demanding a withdrawal of ... the entire process, flies in the face of the agreement ... reached just the day before”.
She said Samwu and its representatives “have a lot to answer” for, as the dismissal of the employees “could have been avoided had they acted differently, reasonably and responsibly with the interest of the workers in mind”.
Ordering costs against the union, she said Samwu had “steered the vessel in the wrong direction” despite the employer’s pleas, “and they cannot come to court to lament the fact that they have reached a destination which could have been avoided and where their members are left destitute”.
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