You attend a dismissal related case at the CCMA and suddenly you notice a union, unknown to you, representing your former employee. Are the union automatically allowed to represent the employee (applicant) or must the union be a recognized union in your workplace?
Section 200 of the Labour Relations Act and Rule 25 of the CCMA rules, deals specifically with representation before the Commission. Rule 25(1)(a)(ii) determines that “in conciliation proceedings a party to the dispute may appear in person or be represented only by any office bearer, official or member, of that party’s registered trade union or registered employers’ organization”. This rule is also applicable to arbitrations.
Rule 25(2) goes further stating that: “If the party to the dispute objects to the representation of another party to the dispute or the commissioner suspects that the representative of a party does not qualify in terms of this rule, the commissioner must determine the issue”.
If the commissioner or the employer wants to establish if the representative is permitted to appear, the representative must provide the following information in terms of Rule 25(4): “A representative must tender any documents requested by the commissioner for the purposes of sub-rule (2), including constitutions, payslips, contracts of employment, documents and forms, recognition agreements and proof of membership of a trade union or employers’ organization”.
With the above in mind, the employer was previously in the position to raise a legal point in terms of rule 25, to establish if the employee is indeed a member of the union. Specifically, the employer usually requested the union to prove that the employee is indeed a paying member of the union.
However, the Labour Appeal Court stated the following in MacDonald’s Transport Upington (Pty) Ltd v Association of Mineworkers and Construction Union (AMCU) and Others (JA10/2016)  ZALAC 32; (2016) 37 (ILJ) 2593 (LAC);  2 BLLR 105 (LAC) (28 June 2016): “Bluntly, what business is it of an employer, in such circumstances, to concern itself with whether membership dues are up to date or any other aspect of the relationship between individual employees and their union?”.
In conclusion, if an employee is a member of a union and the employee doesn’t pay membership fees, it is a private matter between the Union and its member. The MacDonald case therefore permits any union, to represent its member during a dismissal case.
The employer can however still request prove that the union is a registered trade union and prove that the union official is indeed an official of the Union.
Article by: Marteleen Lindemann
Dispute Resolution Official – Klerksdorp