Dismissed worker successfully sues Numsa for failing to fight his case

The National Union of Metalworkers of SA (Numsa) has been ordered to pay R132,000 to a man after failing to properly pursue his dismissal case.

Sibonakaliso Simon Zwane alleged that after his former employer, Eagle Spring Manufacturers, unfairly dismissed him, Numsa culpably failed to refer the dismissal to the labour court on the basis that it was automatically unfair.

Zwane argued that had the union pursued the matter, he would have been reinstated and awarded compensation equivalent to 24 months’ salary, bringing his total compensable loss to R528,000.

[I]t seems to me that Mr Zwane would probably have succeeded in a claim for the maximum amount available under the Labour Relations Act—  Judge Stuart Wilson

Judge Stuart Wilson found in the Joburg high court that, based on the facts before him, Zwane’s dismissal was “manifest and extremely shocking”.

“Taking into account the complete failure to afford Mr Zwane any form of pre-dismissal hearing, the transparent masquerade of the internal appeal, and Mr Zwane’s lengthy service of over 30 years, it seems to me that Mr Zwane would probably have succeeded in a claim for the maximum amount available under the Labour Relations Act for a procedurally unfair dismissal: an amount equivalent to twelve months’ salary.”

In May 2016, Zwane was told that his employment would terminate with immediate effect. He was informed that the decision followed several serious grievances against him, including allegations of intimidating employees and misconduct during working hours.

The allegations included failing to follow his supervisor’s instructions on the factory floor, encouraging workers who arrived late not to clock in or out, verbally abusing staff, physically threatening the director and his son, and opening correspondence from doctors containing other employees’ confidential health information.

Zwane challenged his dismissal through an internal appeal, but the appeal was unsuccessful. The matter was subsequently referred to arbitration through the relevant bargaining council. However, the arbitration took an unusually long time to conclude, spanning 18 hearing days over three years.

During the proceedings, Eagle Spring made Zwane a without-prejudice offer of compensation equivalent to 12 months’ salary, apparently in recognition that the dismissal may have been procedurally unfair.

The company, however, refused to reinstate him, and Zwane rejected the offer. The court noted that neither Zwane nor Numsa could clearly explain why the offer had been turned down. However, based on the overall evidence, it appeared that Zwane wanted the company to fully concede that his dismissal was unfair and reinstate him.

Numsa confirms that it could have taken further steps to pursue the review application on a limited record. It simply chose not to do so

On September 15, 2019, bargaining council arbitrator Ms Hambridge issued her award, finding that Zwane’s dismissal was both procedurally and substantively fair.

Numsa, acting on Zwane’s behalf, subsequently approached the labour court on November 8, 2019, seeking to review and set aside the award but challenged only the procedural aspects of the dismissal.

The court found that, whatever the merits of Hambridge’s finding on the substantive fairness of the dismissal, that issue appeared to have been accepted by the time the matter reached the labour court. It also accepted that Zwane had been involved in the decision not to challenge that finding, meaning that the substantive unfairness challenge effectively fell away when the review proceedings were launched.

Zwane told the court that he was kept in the dark about the case’s progress and only learnt what had happened after the review application was deemed withdrawn.

Numsa disputed this, maintaining that it had kept him informed through its regional and branch structures.

However, there was no suggestion that Zwane had authorised Numsa to abandon the review or agreed to the union not opposing Eagle Spring’s application to have the matter deemed withdrawn. During cross-examination, Numsa’s position was not that Zwane had consented to the withdrawal, but rather that his consent was not required.

“Numsa neither approached the judge president nor took any action to oppose Eagle Spring’s efforts to obtain an order deeming the review to have been withdrawn,” the judgment read. “Numsa confirms that it could have taken further steps to pursue the review application on a limited record. It simply chose not to do so.”