The National Union of Metal­work­ers of SA (Numsa) has been ordered to pay R132 000 to a man after fail­ing to prop­erly pur­sue his dis­missal case, reports The Herald.

Sibonakaliso Zwane alleged his former employer, Eagle Spring Man­u­fac­tur­ers, unfairly dis­missed him and that Numsa culp­ably failed to refer the dis­missal to the Labour Court on the basis that it was auto­mat­ic­ally unfair.

Zwane argued that had the union pur­sued the mat­ter, he would have been rein­stated and awar­ded com­pens­a­tion equi­val­ent to 24 months’ salary, bring­ing his total com­pens­able loss to R528 000.

Gauteng High Court (Johan­nes­burg) Judge Stu­art Wilson said Zwane’s dis­missal was ‘extremely shock­ing’.

‘Tak­ing into account the com­plete fail­ure to afford Mr Zwane any form of pre-dis­missal hear­ing, the trans­par­ent mas­quer­ade of the internal appeal, and Mr Zwane’s lengthy ser­vice of over 30 years, it seems to me that Mr Zwane would prob­ably have suc­ceeded in a claim for the max­imum amount avail­able under the Labour Rela­tions Act for a pro­ced­ur­ally unfair dis­missal: an amount equi­val­ent to twelve months’ salary.’

In May 2016, Zwane was told his employ­ment would ter­min­ate with imme­di­ate effect.

He was informed that the decision fol­lowed sev­eral ser­i­ous griev­ances against him, includ­ing alleg­a­tions of intim­id­at­ing other employ­ees and mis­con­duct dur­ing work­ing hours.

Zwane chal­lenged his dis­missal through an internal appeal, but the appeal was unsuc­cess­ful. 

The mat­ter was sub­sequently referred to arbit­ra­tion through the Bar­gain­ing Coun­cil.

However, the arbit­ra­tion took a long time to con­clude, span­ning 18 hear­ing days over three years.

Dur­ing the pro­ceed­ings, Eagle Spring made Zwane a without-pre­ju­dice offer of com­pens­a­tion equi­val­ent to 12 months’ salary, appar­ently in recog­ni­tion that the dis­missal may have been pro­ced­ur­ally unfair.

According to The Herald, the com­pany, however, refused to rein­state him, and Zwane rejec­ted the offer.

On 15 Septem­ber 2019 an arbitrator at the Bar­gain­ing Coun­cil found Zwane’s dis­missal was both pro­ced­ur­ally and sub­stant­ively fair.

Numsa, act­ing on Zwane’s behalf, approached the Labour Court on 8 Novem­ber 2019, seek­ing to review and set aside the award but chal­lenged only the pro­ced­ural aspects of the dis­missal.

The court found that, whatever the mer­its of the Bar­gain­ing Coun­cil find­ing on the sub­stant­ive fair­ness of the dis­missal, that issue appeared to have been accep­ted by the time the mat­ter reached court.

It also accep­ted Zwane had been involved in the decision not to chal­lenge that find­ing, mean­ing that the sub­stant­ive unfair­ness chal­lenge effect­ively fell away when the review pro­ceed­ings were launched.

However, there was no sug­ges­tion Zwane had author­ised Numsa to aban­don the review or agreed to the union not oppos­ing Eagle Spring’s applic­a­tion to have the mat­ter deemed with­drawn.

Full report in The Herald

Judgment