Independent Newspapers
Durban – For failing to act “honestly and diligently”, the Supreme Court of Appeal has ordered the Food and Allied Workers Union to pay a hefty damages claim and the costs of the appeal.
The union was ordered to pay damages of more than R200 000 to M Ndlela and M Mkhize by the Pietermaritzburg High Court last year for failing to take steps to have their dispute with their employer, Nestlé, referred to the Labour Court.
The union would also have to pay annual interest of 15 percent on the damages amount from August 2004, the date the summons was issued.
The union appealed against the high court ruling to the Supreme Court of Appeal, saying the judgment had serious implications for how unions assisted members during labour disputes.
The union said members were assisted by union officials who were inexperienced, busy and sometimes poorly trained.
It also argued that, in the light of the judgment, there was a question about whether trade unions would be able to provide this assistance if there was a risk that they would be saddled with damages claims.
Appeal court Judge Visvanathan Ponnan and acting Judge Clive Plaskett, with other judges concurring, ruled that the union had a simple mandate which it had failed to carry out.
The men, who worked as sales representatives for Nestlé, were retrenched in May 2002. They claimed they were unfairly dismissed because they were not timeously informed that the company was restructuring and they would be retrenched.
The union referred the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA).
It was not resolved by the CCMA and should have been referred to the Labour Court, but the union failed to do so.
The judges said the union not only failed to refer the dispute to the Labour Court but also did not tell the workers about the delay.
“It took a visit to a university’s law clinic for them to learn that no papers were filed.”
The judges also found that, when the workers complained that nothing had been done, the union still seemed incapable of raising itself from its “self-induced inertia”.
It later told the men they were not “proper members” of the organisation and it would not represent them further.
The appeal court also agreed with the high court’s ruling that the retrenchments had been procedurally unfair and the men would have been successful in the Labour Court.
The court also said neither of the men had found jobs after the retrenchments.
“The men had exemplary work records. Ndlela had 22 years of service and Mkhize had 20 years.
“Given their ages – Ndlela was 52 and Mkhize was 47 – and lack of formal education, it would be fair to say neither could entertain serious prospects of other employment,” the judges said.
kamini.padayachee@inl
The Mercury
