On 9 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.
In determining its own administration - in accordance with
s23(4)(a) of the Constitution - 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.
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.
When the two members eventually obtained legal advice, their
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
The High Court awarded the two members consolation payment
(solatium) of 12 months' 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
FAWU appealed the judgment. The Supreme Court of Appeal (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's
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.
In proceedings before the Constitutional Court, FAWU argued that
it enjoyed special protection under the Constitution and LRA. The
argument went as follows:
The Constitution allows a trade union to determine its own
The 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
The union's own constitution permitted it to provide legal
assistance to members ... where it deems it in the interest of the
union to do so (clause 5.110);
Where it is not in the union's interest to represent
members, the union's contractual liability (to the members it
undertook to represent is) is limited.
The 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's 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.
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 fails to carry out that mandate diligently
and in good faith. It is likely that we will see an increase in the
number of claims brought against trade unions by disgruntled
Trade 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
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Employees must understand the notice periods stipulated by law. When an employee gives notice of their resignation to an employer, they is advising the employer that they will cease to work for the employer from a certain date.
Nigeria is a federal constitutional republic located on the west coast of Africa. Modern Nigeria has its origins as a British colony through the 19th and 20th century until it achieved independence in 1960.
The jurisprudential basis is pithily expressed as staying in sync with the global position on employment relationship, easily summed up as "International Labour Standard" and "International Best Practice".
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