Blog post: LABOUR COURT
In this insightful discussion the United National Transport Union( UNTU) Deputy General Secretary, Dan Khumalo, delves into the recent Labour Court judgment in the case of Ferroland Ground Trust (Pty) Ltd vs. the Commission for Conciliation and Arbitration, Matloga N.N.O, the Food and Allied Workers Union, and Lehong A.
DGS Khumalo emphasizes the main points of this ruling.
Q: Why do you have a heightened interest surrounding this particular judgment?
A: There is importance in understanding and interpreting the judgment because we are faced with most of the representatives misunderstanding Schedule 8 when it comes to informing and consulting the trade union prior to the institution of discipline against the trade union representative.
The judgement made reference to the Labour Court and Labour Appeal Court authority in support of the conclusion. What attracted my attention was when the authorities of other Courts found that non-compliance doesn’t give rise to fairness since Schedule 8 is it just a guideline.
A: You mentioned that labour representatives shouldn’t rely solely on procedural aspects without considering substantive fairness when challenging an employer. Could you delve deeper into why both elements are crucial?
A: A labour Representative should lean a lot on the substantiveness of the dismissal because if the arbitrator or any decision maker found that the dismissal was unfair on the substantive ground then in terms of Section 193 (1)(a) may order reinstatement, unless (2)(a) the employee does not wish to be reinstated.
In the event that the Arbitrator or Labour Court found that the dismissal was only procedural unfair and there was prejudice as a result of the procedural defects then the employee can only be compensated for that defect. Job security (reinstatement) is the primary core when the employee is dismissed, and compensation is secondary.
A: From your perspective, what are the key takeaways for labour representatives from this judgment?
Q: That proper preparation is important when representing employees, and the notion that “If you fail to prepare then you must be prepared to fail”. The takeaway from the judgement is that we must not only rely on schedule 8 to challenge the dismissal of the employee who is a TUR without having a proper argument to substantiate or prove prejudice because the LC and LAC treat it as a guideline, however, it is important also to observe and argue based on the company policies/procedure as to how the consultation must ensue prior to instituting discipline against a TUR.
If there is a disciplinary code which entails the same process like Schedule 8 then you can place your argument relying on LAC authority in Denel that states that the employer is required to comply with its own policies.
A: How can they apply these insights in their future cases?
A: It is expected that TURs must do research and properly prepare for hearings including arbitrations, that will enable them to advance arguments on preliminary issues (point in limine) which can be raised before the commencement of the proceeding. Furthermore, it will be futile that they challenge dismissal only on the procedural aspects since chances might be, even if the arbitrator can even find that dismissal was only procedural unfair, then even compensation cannot be awarded if there was no prejudice that one suffered as a result of that. All Labour Litigants must familiarize themselves with all Labour related aspects moreover the authorities from different Courts, since they set precedence and they are binding to lower courts or decision makers, refer to Constitutional Court in Gcaba v Minister of Safety and Security, where the CC stated that the higher Courts set the precedence to lower Courts.
CLICK ON THE LINK BELOW TO DOWNLOAD THE FULL LABOUR COURT JUDGMENT.
