INSTANT union membership!!

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CindyR
Posts: 10
Joined: 27 May 2016, 07:56

INSTANT union membership!!

Unread postby CindyR » 11 Jan 2017, 12:21

Hi all

We held a disciplinary hearing for an employee for offences listed in our disciplinary code as dismissable - abuse of company property etc. The employee pled guilty at the hearing and was dismissed. The hearing was held by an external impartial chairman and all of the correct procedures followed. The employee was given time to appeal and did not appeal. Now he is suddenly a member of a trade union (never was before) and has referred the case to the CCMA claiming that the dismissal WAS procedurally fair but substantively unfair because he was dismissed without a valid reason. My question is can a union represent him if he was never a member and not a member at the time of the hearing? He has never paid union fees etc. We are a commercial farm and the union representing the employee is the Professional Transport and Allied Workers Union. Am I not understanding something?

IRgunther
Posts: 362
Joined: 21 Jul 2014, 14:54

Re: INSTANT union membership!!

Unread postby IRgunther » 12 Jan 2017, 14:46

Hi Cindy

CCMA Rule 25 permits representation by a REGISTERED trade union. So does section 200 in the LRA. That's it. The limited scope of the union would only be relevant if the dispute concerned organisational rights but will not aid to deny it representivity in this dismissal dispute. See MacDonald’s Transport Upington (Pty) Ltd v Amcu (JA10/2016) [2016] ZALAC 32 ; [2016] JOL 36184 (LAC)(28 June 2016) where the Court also referred to Transport and General Workers Union and Others v Coin Security Group (Pty) Ltd (2001) 22 ILJ 968 (LC) at [160] – [161] where it was held that an employee who appears before the Labour Court represented by a union pursuant to Section 161(c) of the LRA, needs not have been a member at the time of that employee’s dismissal.

I'd still challenge the union's representivity if its scope does not extend to your industry but be prepared to lose that argument. On the other hand, it's good that you are confident in your case regards the dismissal.

Good luck!

CindyR
Posts: 10
Joined: 27 May 2016, 07:56

Re: INSTANT union membership!!

Unread postby CindyR » 12 Jan 2017, 15:05

HI

Thanks so much. I will challenge the locus standi of the union to represent but do see that I will probably/may lose that argument. I also see that I will not be able to argue that the particular union (Professional Transport Workers) is outside the scope of agriculture etc.... but I will definitely defend on the argument that the dismissal was without a valid reason. The offences are listed as serious and dismissable in our disciplinary code that each employee receives a copy of. The hearing was held procedurally correctly, and to be honest the only concern I have is that there might be mitigating circumstances that may be considered more favourably in the CCMA than they were in the hearing. Thanks so much for the response. Its much appreciated!

CindyR
Posts: 10
Joined: 27 May 2016, 07:56

Re: INSTANT union membership!!

Unread postby CindyR » 12 Jan 2017, 15:08

HI

Thanks so much. I will challenge the locus standi of the union to represent but do see that I will probably/may lose that argument. I also see that I will not be able to argue that the particular union (Professional Transport Workers) is outside the scope of agriculture etc.NUM obo Mabote v Kalahari Country Club ... but I will definitely defend on the argument that the dismissal was without a valid reason. The offences are listed as serious and dismissable in our disciplinary code that each employee receives a copy of. The hearing was held procedurally correctly, and to be honest the only concern I have is that there might be mitigating circumstances that may be considered more favourably in the CCMA than they were in the hearing. Thanks so much for the response. Its much appreciated!

CindyR
Posts: 10
Joined: 27 May 2016, 07:56

Re: INSTANT union membership!!

Unread postby CindyR » 12 Jan 2017, 15:08

HI

Thanks so much. I will challenge the locus standi of the union to represent but do see that I will probably/may lose that argument. I also see that I will not be able to argue that the particular union (Professional Transport Workers) is outside the scope of agriculture etc.NUM obo Mabote v Kalahari Country Club ... but I will definitely defend on the argument that the dismissal was without a valid reason. The offences are listed as serious and dismissable in our disciplinary code that each employee receives a copy of. The hearing was held procedurally correctly, and to be honest the only concern I have is that there might be mitigating circumstances that may be considered more favourably in the CCMA than they were in the hearing. Thanks so much for the response. Its much appreciated!

IRgunther
Posts: 362
Joined: 21 Jul 2014, 14:54

Re: INSTANT union membership!!

Unread postby IRgunther » 17 Jan 2017, 17:57

You're most welcome. Go for it and keep us posted on the outcome!


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