Is an employee entitled to be represented by a trade union of which he is a member, if the employer objects to the validity of his membership on the basis that his job does not fall within the scope of the union’s constitution?
The answer is yes in exceptional cases when it comes to representation and this should not be confused with organisational rights.
The Labour Court found in favour of NUM in NUM obo Mabote case nr. C1010/12. The merits of the case are as follow:
The employee worked in the hospitality sector and was a member of NUM. Union deductions were made and the employee was dismissed. The employer recognised NUM as the bargaining agent for its employees. At the arbitration the employer objected to a NUM official representing the employee. The Commissioner held that the employee could not be represented by a NUM official and the Labour Court found that the Commissioner exceeded his powers. The Labour Court held that:
(1) The Constitution guarantees the right to fair labour practices which includes the right of every worker to join a trade union;
(2) The effective resolution of labour disputes by the CCMA includes the right to be represented by a trade union official;
(3) Section 200(1)(b) of LRA and CCMA rule 25(1)(b)(iii) on the face of it grants an employee and his or her chosen trade union an unfettered right to represent the employee at arbitration proceedings. That right is in line with the right to freedom of association guaranteed in the LRA, the Constitution and GLO Convention 87;
(4) That this application raised a constitutional issue.
The ruling of the Commissioner was reviewed and set aside and it was further found that the applicant is entitled to representation by an official of NUM at the arbitration.
Employers are therefore urged not to just blatantly refuse representation at disciplinary hearings. Each case should be dealt with its own merits and a refusal to be represented can result in a procedurally unfair dismissal.
Article by: Jacques du Toit
CEO Dispute Resolution Official – Bethlehem