The Constitutional Court today delivered judgment in the ongoing dispute between two members whose claim for ‘damages’ against their trade union was upheld by the SCA.

Click on SCA upholds claim for damages against FAWU to read the April 9, 2013 post and the earlier judgments – on 28 March 2013 in FAWU v Ngcobo NO [unreported judgment SCA353/12] the Supreme Court of Appeal upheld the judgment of Swain J [see Ngcobo NO v FAWU] and disallowed the appeal of the trade union. Justices Ponnan and Plasket delivered the majority judgment with justices Malan and Tshiqi concurring and justice Southwood dissenting. The judgment of the High Court was confirmed in which justice Swain ordered  FAWU to pay the two former members R214,464 together with interest thereon at the rate of 15.5 per cent per annum from 28 August 2004 to date of payment.

Click on FAWU v Ngcobo NO [see also Media Summaries below] to view the judgment of the Constitutional Court delivered this morning and find out why the trade union’s application for leave to appeal was not allowed.

This is the media summary that was provided on 29 August 2013 when the matter was argued in the Constitutional Court.

Media Summary – 29.08.2013

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

 On 29 August 2013 at 10h00 the Constitutional Court will hear an application concerning whether a trade union can be held liable for negligence in providing legal representation for its members.

In May 2002 the respondents (employees) were dismissed by their employer.  Their trade union – the Food and Allied Workers Union (FAWU) – undertook to represent them in an unfair dismissal claim.   FAWU represented them before the Commission for Conciliation, Mediation and Arbitration (CCMA).   The CCMA was not able to resolve the matter and FAWU undertook to proceed with their dispute to the Labour Court.    Under the labour legislation, this had to be done within 90 days after the commissioner certified that the dispute remained unresolved.  Despite assuring the employees that their matter was being handled effectively, FAWU did not meet the 90-day deadline.  This meant that the employees’ case lapsed and could be revived only if the Labour Court granted condonation.    When the employees drew FAWU’s attention to the lapsed period, an official of FAWU acknowledged that it was imperative to apply for condonation and undertook to do so.    Thereafter, however, FAWU obtained an opinion from its attorney that the employees’ unfair dismissal claim had no prospects of success.    FAWU then informed the employees that it would not be taking their case any further and never applied for condonation.

The employees then brought a civil claim against FAWU for damages arising from the union’s negligent failure to pursue their unfair dismissal claim timeously.    The KwaZulu-Natal High Court, Durban (High Court) found in favour of the employees.    On appeal to the Supreme Court Appeal, the majority also held in favour of the employees.   Southwood AJA wrote a dissenting judgment, finding against the employees on the basis that their loss was “self-inflicted”, because they failed to apply for condonation themselves once FAWU had withdrawn as their representatives.

FAWU seeks leave to appeal to the Constitutional Court against this judgment.    FAWU argues that any contractual undertaking to provide legal assistance to its members must be understood in the light of a trade union’s constitutional right to self-governance in section 23(4)(a) of the Constitution and labour legislation more generally.    FAWU argues that the terms of its constitution entitled it to withdraw legal services once it took the view that it would not be in its interests to pursue the claim.    It further submits that the High Court and Supreme Court of Appeal should have taken into account the nature of a trade union when considering the terms of its contractual undertaking and whether there had been a breach of contract.    They point to the fact that a union’s representatives, unlike attorneys, do not necessarily have any legal qualifications, and the fact that a trade union must have regard to the interests of its members collectively, rather than to the interests of its individual members.    FAWU also contends that it was always open to the employees to apply for condonation themselves, which they have not done and argues that this failure bars the employees’ claim.

The employees argue that leave to appeal should not be granted because the matter does not raise a genuine constitutional issue and because there are no prospects of success on any aspect.

Media Summary – 9.10.2013

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

Today the Constitutional Court dismissed an application by the Food and Allied Workers Union (Union) for leave to appeal against a judgment of the Supreme Court of Appeal.

The Union undertook to pursue employees’ claims in an unfair dismissal dispute against their former employer Nestlé, in the Labour Court, but it never did.   After the statutory deadline
passed, the Union gave a further undertaking to the employees to revive their unfair dismissal claims by applying for condonation.   It did not make this application either. Nineteen months
after their claims had lapsed the Union told the employees that it would no longer proceed, as it was of the opinion that there were no prospects of success.   It was for these breaches that both the High Court and the Supreme Court of Appeal held the Union liable to the employees.

Before this Court the Union argued that, in the light of its constitutional right to determine its own administration, programmes and activities, as well as the provision in its internal
constitution that it may “provide legal assistance to members … where it deems it in the interest of the Union to do so”, it was entitled to withdraw legal assistance from its members with impunity.   The Union also argued that it was excused from liability, because the employees could still apply for condonation themselves.

In a unanimous judgment written by Cameron J, the Constitutional Court held that leave to appeal should be refused because the Union’s appeal had no prospects of success.   Even on
the most favourable interpretation of the Union’s constitution, the Union was not entitled to withdraw from its undertaking to provide legal assistance.   It is bound to perform according
to its contracts and can be held liable for breach of those contracts.

The Constitutional Court therefore dismissed the application for leave to appeal with costs.