INSTANT union membership!!

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

INSTANT union membership!!

Unread post by 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: 332
Joined: 21 Jul 2014, 14:54

Re: INSTANT union membership!!

Unread post by 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 post by 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 post by 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 post by 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: 332
Joined: 21 Jul 2014, 14:54

Re: INSTANT union membership!!

Unread post by IRgunther » 17 Jan 2017, 17:57

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

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

Re: INSTANT union membership!!

Unread post by CindyR » 06 Apr 2017, 13:55

Hi... what a day. So the employee requested 8 months salary or reinstatement retrospective. The company is not negotiable. The union first accepted the procedure as fair and claimed that the dismissal was substantively unfair. Then in the arb started all over again with both procedural and substantive unfairness. We spent an hour and a half determining the contextual meaning of the word "dismissal" and the semantical differences in meaning in the different contexts, then another hour and a half explaining that the disciplinary code as written was a guideline to action steps and not a recommendation of sanction. How can you predetermine the outcome, let alone the sanction of a hearing before it is held in a company policy and procedure document? Then the employee suddenly forgot that he was fluent in English and required a translator. Sigh!!!! The commissioner also allowed the union to respond again after both submissions and the company response, and I am not sure why. Can someone help me with this? We await the outcome within two weeks.

IRgunther
Posts: 332
Joined: 21 Jul 2014, 14:54

Re: INSTANT union membership!!

Unread post by IRgunther » 11 Apr 2017, 16:42

Hi Cindy

Arbitrators have a wide discretion on how to conduct arbitrations and their allowances or disallowances during the arbitration may cause their awards to be successfully taken on review.

Thanks for the update and keep us posted!

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

Re: INSTANT union membership!!

Unread post by CindyR » 12 Apr 2017, 08:40

Hi - so we lost this one. The commissioner says I have to add the sanction to our disciplinary code and that the sanction was too harsh. He also used the comment of the Union made after the our final submission as one of his findings. I quite strongly disagree with that because the sanction should be case specific, but I could probably add "Possible Sanction". We have applied the same code consistently in the company with three previous dismissals and as our equipment is heavy vehicles this finding by the CCMA has now allowed an employee to take a vehicle without permission to conduct personal business . The employee lied absolutely and stated that he had never pled guilty and because the initiator was on holiday in Ballito they refused to used the verbatim minutes or the Chairmans finding and evidence that he had in fact pled guilty. #feeling frustrated. The CCMA has ordered re-instatement of the employee but his position is filled. (It's harvest time for us). We have a position on one of our projects a little further out of town (about ten kms) that we can deploy him on. Our contracts do state that employees can be deployed anywhere on the farm. Can we place him on a project? It's a partnership project, so not a short term or temporary position.

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