WHEN A UNION DECIDES THE REASON FOR A DISMISSAL …
By Stephen Khola National Labour Relations and HR Director, ECA(SA)
I’m currently representing an ECA member in an unfair dismissal dispute – LIMUSA on behalf of Zondo, Siphelele and one other and MG Electrical – at the Commission for Conciliation, Mediation and Arbitration (CCMA). This matter has already set twice and we are to appear for what I hope will be a final sitting on 30 October 2017.
MG Electrical was awarded a tender to do electrical work at a major client’s premises. Zondo and Siphelele worked for MG Electrical on this project and were found sleeping on duty by the client. The client asked for them to be removed from the premises permanently; and this meant that the two employees could not work on this specific site.
During this period, the employer had just concluded a retrenchment exercise with the Liberated Metalworkers Union of South Africa (LIMUSA) as the company had to reduce its staff complement because a number of projects that the firm had been busy with, had been completed, resulting in the firm having more employees than it needed.
The employer wrote an e-mail to the client informing the client that the two employees had apologised and further added that they were diligent employees. The employer pleaded that the employees be allowed back on site, but the client refused indicating that there had been a number of prior incidents of ill-discipline by the two employees. The trade union was also copied in the correspondence between the employer and the employee.
With no other project in which to accommodate these employees, the employer started a retrenchment consultation exercise with LIMUSA for the retrenchment of the two employees. The union then declared an unfair dismissal dispute.
At conciliation, the union argued that the only acceptable remedy for the union would be that the employees return to work or be paid eight months’ wages as compensation. The basis for the alleged unfair dismissal is that the employer had dismissed the employees at the behest of the third party, namely, the client.
The employer’s argument is simply that the client had not demanded that the employees be dismissed, but that they be removed from its premises. As a result of there being no ther alternative work available, their only available option is to retrench the employees.
The employer had not followed the disciplinary route because it had wanted to retain the employees.
What is frustrating is that we have already spent two days arguing this case at the CCMA, including conducting an in loco inspection requested by LIMUSA, which in my view was completely unnecessary as I could not see see its relevance.
The union is trying to prove that the employees were dismissed for misconduct at the behest of the client when the union was in the process of trying to get the employees back at work. The union had also participated in the retrenchment exercise and was aware that the employer had had no alternative positions available.
How does one party decide for the other the reason for terminating the employees contract of employment? I believe this to be a frivolous and vexatious referral and intend asking for a cost order against the union.
I will share the outcome of the matter on this platform once it has been received.
What a waste of time and resources!
National Labour Relations & HR Director
+27 (0)11 392 0000