Should trade unions always have their members’ back?

Many employees join trade unions with the expectation of being represented in disciplinary hearings and retrenchments. This is on the belief that as long as one is a paying member, a trade union will always have your back. This begs the question whether or not trade unions should always represent their employees no matter the misconduct. This matter was recently dealt with by the Labour Court in Democratic Nursing Organisation of South Africa (DENOSA) obo Damaria Phemelo Ramaroane v MEC for Health, Gauteng Province [2019] JOL 45061 (LC).

29 Jan 2020 2 min read Employment Alert Article

The employee in this case was a student nurse who, during an exam, went out of the venue and made notes on her thigh and went back to the venue to continue with the test. She was caught by one of the lecturers while rubbing off the incriminating information during the exam. In the disciplinary hearing, she pleaded not guilty to dishonesty relating to the cheating. She was found guilty and, as a result, her training and employment were terminated for two years in accordance with the Nursing College Regulations.

DENOSA, acting on behalf of the employee, brought an urgent application to the Labour Court to review and set aside the termination. The Labour Court dismissed the application for the lack of urgency. Most importantly, the Labour Court found that since the employee was the author of her own misfortune, there was no reason for it to come to her aid under those circumstances.

In the conclusion of the matter, the Labour Court dealt with the abuse of the urgent roll in that DENOSA’s attorneys failed to reflect on whether to bring the application. The Labour Court found that the approach adopted by DENOSA’s attorneys was ‘lets see what the court will say’, which is an approach the Labour Court discouraged. In respect of DENOSA as a trade union, the Labour Court found that although it is commendable for trade unions to be seen to be acting in the interest of their members, there is no cause to fight for an employee who acted in the most reprehensible and dishonest manner. Further, the Labour Court held that if DENOSA’s message to its members is that it will unashamedly have their back and condone cheating in an exam, such logic can never be correct.

In expressing its displeasure on DENOSA’s abuse of process in bringing the urgent application, the Labour Court made a punitive costs order against DENOSA.

This case is a wake-up call to trade unions to assess the cases they bring to court and discourages against defending employees no matter the merits or nature of the misconduct. It is debatable whether this case could be a ticket to be used by trade unions to withdraw from pursuing frivolous litigation on behalf of their members. It is our view that with the punitive costs orders, it is likely that trade unions will no longer defend their member at all cost.

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