Automatically unfair dismissal - The right of an employee to act as a shop steward

Food & Allied Workers Union & another v The Cold Chain

25-JUL-07
Case No. C 324 / 06
Judgment Date: 8 March 2007
Jurisdiction: Labour Court, Cape Town
Judge: Nel AJ
Subject: Automatically Unfair Dismissals
Issue:

As part of a retrenchment program the employer made an offer of alternate employment conditional on a worker resigning from his union duties. The worker claimed that his eventual termination was automatically unfair.

Summary of Facts:

A member of FAWU was made an offer of employment as an alternative to retrenchment; the offer was for a higher position but it was dependent upon the worker relinquishing his position as a shop steward. He accepted the offer for the new position but refused to relinquish his union position. He was dismissed as a result.

The worker referred the matter to the Court claiming that his dismissal was automatically unfair pursuant to s.187(1)(f) of the LRA.

Summary of Judgment:

The respondent company made a number of submissions denying the claim, all of which were rejected by the Court.

One submission relied on the principles of offer & acceptance, arguing that the worker had agreed to the new position with the attached condition (to resign as shop steward) and that it couldn’t be said that the respondent had discriminated against him when it terminated the employment, because the worker refused to comply with the terms. The Court rejected this on the basis that any such contractual term was in breach of the LRA.

Other submissions included: • that FAWU’s Constitution required the resignation of a member if they fell outside the scope of the bargaining unit; and
• that a recognition agreement in place requiring a shop steward to resign if they fell outside the scope of the bargaining unit.

Both of the above submissions were rejected for lack of evidence.

The Court went on to find that the dismissal was automatically unfair because the conditional offer was in breach of the organisational rights provisions (s.4 and s.5 of the LRA).

Interestingly, when deciding on relief, the Court noted that the worker ‘confirmed that he had not actively pursued alternative employment’. Rather than award the maximum of 24 months compensation, the Court awarded the worker 9 months’ compensation with costs.