{"id":24272,"date":"2013-10-12T15:39:22","date_gmt":"2013-10-12T13:39:22","guid":{"rendered":"http:\/\/www.myza.co.za\/2013\/10\/trade-union-liable-for-neglecting-to-prosecute-members-claims\/"},"modified":"2013-10-12T15:39:22","modified_gmt":"2013-10-12T13:39:22","slug":"trade-union-liable-for-neglecting-to-prosecute-members-claims","status":"publish","type":"post","link":"https:\/\/www.myza.co.za\/press\/trade-union-liable-for-neglecting-to-prosecute-members-claims\/","title":{"rendered":"Trade Union liable for neglecting to prosecute members\u2019 claims"},"content":{"rendered":"

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On 9th October 2013, the Constitutional Court held that a trade union cannot avoid liability for its neglect to prosecute claims by its members merely because the union has a constitutional right to determine its own administration.<\/p>\n

\u201cIn determining its own administration \u2013 in accordance with section 23(4)(a) of the Constitution \u2013 the union does not have the right to withdraw its representation of its members with impunity; it still had to act in a manner that does not cause prejudice to its members. The judgment in FAWU v Ngcobo NO and Mkhize represents a victory for members against negligent conduct by their trade union representatives,\u201d explains Johan Botes, Director in the Employment practice at Cliffe Dekker Hofmeyr.<\/p>\n

In 2002, the Food and Allied Workers Union (FAWU) agreed to represent two employees of Nestle South Africa (Pty) Ltd who claimed that they were unfairly dismissed. FAWU duly referred a dispute, alleging unfair dismissal of their two members, to the Commission for Conciliation, Mediation and Arbitration (CCMA). When the dispute could not be resolved at conciliation, the CCMA issued a certificate confirming this. FAWU was then entitled to refer the dispute for adjudication to the Labour Court within 90 days of the certificate being issued. It advised the two members that it would do so. However, the union did not refer the dispute.<\/p>\n

\u201cWhen the two members eventually obtained legal advice,\u201d states Botes, \u201ctheir attorneys demanded that FAWU refer the dispute to the Labour Court and apply for condonation for the late filing. The union did not respond to the demand. The attorneys issued summons on behalf of their clients.\u201d<\/p>\n

\u201cThe High Court awarded the two members consolation payment (solatium) of 12 months\u2019 remuneration as being just and equitable. The Court held that the union had an obligation to prevent prejudice to its members where it agreed to assist them,\u201d he explains.<\/p>\n

Botes notes that FAWU appealed the judgment. \u201cThe SCA, in a split decision, held in favour of the two members. It held that the union agreed to assist the members under a contract of mandate. As such, it was obliged to perform its functions faithfully, honestly, and with care and diligence. FAWU\u2019s failure to, firstly, refer the dispute and, having failed to do so, then to apply for condonation, was in breach of its duty to act honestly or diligently,\u201d he says.<\/p>\n

Botes explains that in proceedings before the Constitutional Court, FAWU argued that it enjoyed special protection under the Constitution and LRA. The argument went as follows:
\nThe Constitution allows a trade union to determine its own administration (section 23(4)(a);
\nThe LRA allows the union to act in its own interest, on behalf of any of its members or in the interest of any of its members (section 200(1));
\nThe union\u2019s own constitution permitted it to provide legal assistance to members \u2026 where it deems it in the interest of the union to do so (clause 5.110);
\nWhere it is not in the union\u2019s interest to represent members, the union\u2019s contractual liability (to the members it undertook to represent is) is limited.<\/p>\n

\u201cThe Constitutional Court unanimously rejected this argument. It held that the union could not pursue its own interests, with impunity, when it has caused injury to members by failing to represent them properly. The union\u2019s own constitution suggested that the union will take responsibility for the negligent action of those acting on its behalf. The court stated that, even if the trade union was permitted to withdraw from a matter where it agreed to represent its members, it was still obliged to take such a decision in good faith and inform the members timeously. It was obliged to act in good faith and could only withdraw if the members could fulfil the mandate previously given to the trade union,\u201d says Botes.<\/p>\n

He says that the judgment is an important reminder of the responsibility shouldered by trade unions in representing its members. The union attracts liability for its actions where it agrees to act on behalf of its members and then fail to carry out that mandate diligently and in good faith.<\/p>\n

\u201cIt is likely that we will see an increase in the number of claims brought against trade unions by disgruntled members,\u201d he says.<\/p>\n

\u201cTrade unions should guard against negligent conduct by its officials or office bearers. It may be forced to obtain indemnity insurance against such claims by members, as suggested during the proceedings in the High Court. The judgment sends a clear signal that members are not without remedy when faced with negligent conduct by its labour representatives. If the effect of this judgment is greater care applied to the management of labour disputes by trade unions, everybody stands to gain. The diligent prosecution of claims before the CCMA or Labour Court can only lower the employee relations climate from its current heightened temperature.\u201d Botes adds.<\/p>\n

Trade Union liable for neglecting to prosecute members\u2019 claims<\/p>\n

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