Talk about the shoe being on the other foot: one of SA’s major unions recently had an unusual experience when one of its own employees took it to court, claiming to be the victim of an unfair labour practice.
THIS is a case certain to intrigue everyone in SA’s formal work space, for it concerns a major union in an unaccustomed role – as an employer in dispute with a union organizer who challenged an alleged unfair labour practice.
Who would prove to have the better grasp of workplace law and of what constitutes fairness?
Even the labour court could not resist pointing out the ironies: the dispute concerned a “rare occasion” where a well-known union is “taken to task by one of its own employees”, said acting judge Sean Snyman, adding that it was a case of the “shoe being on the other foot”.
The question for the court, he said, was whether the conduct of the National Union of Metalworkers of SA (Numsa), “passes muster as being fair” in relation to an employee.
Their dispute concerned a car purchase scheme offered to Numsa employees as a benefit. It included certain conditions, and when Numsa local organizer, Mandla Skhosana, ignored these conditions, despite reminders, the union suspended access to his vehicle and fuel allowance.
Skhosana claimed he had been unfairly treated and felt so strongly about it that he took his grievance to the Commission for Conciliation, Mediation and Arbitration (CCMA). When the arbitrator found in favour of Numsa, Skhosana asked the labour court for its view.
Numsa bought vehicles for its scheme via Numsa Financial Services (NFS). The vehicles were allocated to qualifying employees who could ultimately become vehicle owners and could use their vehicles for union work.
Once a vehicle was allocated to a qualifying union worker, the related vehicle and fuel allowances were triggered. Strict conditions applied. If a car developed any problems and was not used for 30 days, then the allowance paid to the relevant employee lapsed. Just as important, every employee allocated a vehicle had a duty to report any problems with that car.
In 2015, when the dispute arose, Skhosana’s allowance was R7500. Then his vehicle needed serious repairs and he began to use other vehicles. He did not report the situation to Numsa and he continued getting the R7500 monthly allowance.
When Numsa’s regional secretary, Jerry Marulane, discovered Skhosana wasn’t using his own car and told him to produce the vehicle, Skhosana ignored the instruction. Reminded of his duty to report problem, failing which his allowances would be suspended, he still refused to comply and his allowances were cut in March 2015.
Five months later he presented the vehicle for inspection. Marulane found it in an “appalling condition” but as it was at least useable the vehicle allowance was reinstated.
Skhosana, however, queried the five months his allowance was not paid, saying it amounted to an unfair labour practice relating to benefits.
At the labour court, Snyman found nothing wrong with the arbitrator’s decision. There was no doubt that Numsa’s decision to suspend was “objectively justified and relevant” while, in court, Skhosana also conceded that to get the benefits – the allowances – he had to meet the conditions attached.
True, he was allowed to use other vehicles, but this had first to be approved by Numsa. The union had not acted arbitrarily and Skhosana had a chance to “engage” with Numsa when he was told to produce his car for inspection. Only when he ignored instructions were the allowances suspended. Further, Skhosana did not emerge well from the transcript: he was an argumentative witness “who was simply not credible”.
In the end, Snyman said, the case amounted to a disagreement over how the union applied a benefit policy, something that fell far short of establishing an unfair labour practice. And, lucky for Skhosana, though the court found in favour of Numsa, it decided not to award costs against Skhosana as he was still a union employee.
- Financial Mail, 18 March 2019