Trade unions and the duty of care (toward own members)
Recent catastrophic developments - especially on the platinum mines as well as the eruption of long-simmering problems between Cosatu and upstart unions - have resulted in many trade union members taking an introspective approach and demanding that issues related to employment and service conditions be addressed.
The same developments have resulted in some trade unions’ negligence being exposed, in addition to the fact that they did not keep their eye on the ball as they had drifted into a cozy comfort zone with some companies.
I have, over the last few years, come across shocking displays of negligence by trade unions who, for instance, had been negligent and failed to file disputes within the statutory time limits, allowed claims to lapse (in terms of the three-year provisions of the Prescription Act) and so forth.
Since 1994 until quite recently, it was politically and legally not the ‘done’ thing for members to sue their unions for a variety of reasons, one being that particularly Cosatu trade unions were somewhat “untouchable” and elevated to unrealistic levels of an “automatic presumption” of professionalism, and a guarantee that they would always act in the interests of their members. Members, officials and office bearers were all comrades in arms. How times have changed!
Can disgruntled union members sue the union powers-that-be?
As far as the law is concerned the Labour Court does not have the jurisdiction to entertain delictual claims, e.g. for negligence and not exercising a duty of care. The remedy for disgruntled union members accordingly is in the civil courts, including the High Court where claims for damages on the basis of delictual liability may be filed.
There have only been isolated cases in the past where trade union members have sued their own unions for damages for the above-mentioned reasons.
In a recent judgment, the Supreme Court of Appeal confirmed that a trade union is liable for damages if it fails to perform a mandate from its members (Food & Allied Workers Union v Ngcobo & Mkhize Case No. 353/12 SCA). The union members claimed damages for the loss which they sustained because the trade union that was acting on their behalf failed to prosecute their claims speedily and properly in the Labour Court. They were awarded damages equivalent to 12 months’ salary each, but they could conceivably have claimed for much more.
The message is clear: Trade unions do have a (legal) duty of care towards their members and can be held liable for damages and/or losses suffered by their members, as a result of negligence and/or a failure to represent them properly.
 |
Author: Jan Kemp Nel is the CEO of Streetwize Labour Law (Pty) Ltd.. He has a BA(LLB) from the University of Pretoria and a Diploma in Labour Relations from Unisa. With his 30 years’ experience in industrial relations and labour law, he has developed and introduced procedures in industrial relations in all areas He advocates and practises a preventative philosophy regarding industrial relations, recognising that conflict must be dealt with using proactive methods. |
