National Union of Metalworkers of South Africa (NUMSA) and Others v Afgri Animal Feeds (Pty) Ltd

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Phatshoane ADJP and Savage AJA and Phatudi AJA
• Judgment Date: 17 June 2022
• Docket Number: JA29/2021
• Hearing Date: 31 March 2022
• Court: Labour Appeal Court
• Citation: 2022 JDR 1983 (LAC)

Savage AJA:

[1]

This appeal, with the leave of this Court, is against the judgment and order of the Labour Court (Mahosi J) delivered on 20 January 2021 which upheld a preliminary point raised by the respondent, Afgri Animal Feeds (Pty) Ltd. The

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Court found that the first appellant, the National Union of Metalworkers of South Africa ('NUMSA') "lacked the requisite locus standi to refer this matter and to represent" the second to further appellants ('the employees') in their unfair dismissal claim before the Labour Court in that they were employed in a sector which fell outside the scope of NUMSA's constitution. Costs were awarded against the appellants.

Background:

[2]

The respondent conducts business in the agricultural sector, manufacturing and distributing animal feeds.

[3]

Clause 1(2) of NUMSA's constitution provides that "(t)he scope of the union is as per Annexure B of this document. The Central Committee may amend the scope from time to time".

[4]

Clause 2.2 provides that:

'All workers who are or were working within the scope as set out in Annexure B are eligible for membership of the Union subject to the discretion of the relevant Shop Stewards Council. There are three kinds of membership: Active, Associate and Continuation.'

[5]

The clause continues that an "active member" is a form of "membership available for workers currently employed in the metal or related industry".

[6]

Annexure B to NUMSA's constitution provides, in relation to "the scope of the Union", that "the Union shall be open to all workers employed in any of the following industries". The annexure lists a number of different industries including the Iron, Steel, Engineering and Metallurgical industry; Electrical Engineering; Plastics; Automobile Manufacturing; Motor industry; Transport; Cleaning industry; Security industry; the Building and Construction; Industrial Chemicals, which include Base Chemicals, Fertilizers and Glass, Speciality Chemicals, including those for industrial or agricultural use, and Pharmaceuticals; Renewable Energy; Mining; IT; Health Services and Canteen Services. The list does not include the manufacture of animal feeds.

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[7]

After the respondent refused to grant NUMSA workplace organisational rights, 137 employees embarked on an unprotected strike at the respondent's premises from 12 to 14 September 2017. The employees were given notice to attend a disciplinary hearing, at which they were initially represented by a NUMSA official until the chairperson directed that the official leaves the hearing apparently due to his disruptive behaviour. Following the hearing, on 1 December 2017, the employees were dismissed from their employment with the respondent. Some of the 137 employees who had embarked on the strike received a final written warning arising from their conduct. Aggrieved with their dismissal, the employees referred an unfair dismissal dispute to the Commission for Conciliation Mediation and Arbitration (CCMA). On 5 February 2018, the CCMA issued a certificate declaring the dispute unresolved.

[8]

Thereafter, NUMSA, as the first applicant, and the employees, as the second to further applicants, referred an unfair dismissal dispute to the Labour Court for adjudication. The statement of case filed for the appellants in May 2018, was signed by their attorney of record. It recorded that the employees had become members of NUMSA in July 2017 and remained members in good standing. An order was sought that the dismissal of the employees be declared procedurally and substantively unfair; and that they be retrospectively reinstated into their employment with the respondent, alternatively receive the maximum compensation payable, with costs.

[9]

The respondent opposed the matter and in its statement of defence raised two preliminary points. The first was resolved when the Labour Court, on 7 September 2018, condoned the late filing of the appellants' statement of case. The second preliminary point, which is the subject of this appeal, was that both NUMSA "and the Applicants' legal representative lack locus standi and authority to act on behalf of [the employees]". In support of this preliminary point, the respondent pleaded that it had received union membership forms from five of the employees on 10 July 2017, which were attached to NUMSA's application in terms of section 21 of the Labour Relations Act 66 of 1995 (the LRA) for organisational rights. No further membership forms were received, no membership numbers were affixed to the forms received and there was no

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other confirmation that the remaining employees were NUMSA members. Proof of locus standi and authority to act was therefore sought, with the respondent noting its risk of prejudice in relation to costs should NUMSA decide not to conduct the litigation to conclusion.

[10]

The respondent thereafter filed a notice in terms of rule 7(1) of the Uniform Rules of Court in which it raised an objection to NUMSA's authority to act on behalf of the employees and invited it to furnish proof of such authority to act. In response, NUMSA provided powers of attorney signed by the employees recording NUMSA to be their "lawful trade union and agent" to enter into any legal proceedings and take any steps related to such proceedings.

[11]

In the pre-trial minute signed by the parties' respective legal representatives, amongst other issues, it was stated to be in dispute whether NUMSA was entitled to register the employees as its members.

Judgment of the Labour Court:

[12]

The Labour Court recorded the preliminary point raised to concern whether "NUMSA lacked the requisite locus standi to refer this matter and to represent the employees" and whether the principles set out by the Constitutional Court in National Union of Metal Workers of South Africa v Lufil Packaging (Isithebe) and Others (Lufil), [1] which concerned organisational rights, applied "to the employees' right to representation". The Court considered the enquiry to be two-fold:

'Firstly, whether NUMSA has a right to refer the matter in its own interest and those of its members' interests (sic) and secondly, whether it has a right to represent the employees in this matter.'

[13]

The Court took the view that the principle emanating from Lufil remains valid for "all enquiries". It noted that in terms of section 191(1) of the LRA, the employees could refer their dismissal dispute to the CCMA for conciliation; and that thereafter, if unresolved, given that the matter concerned a strike dismissal, "the employee may refer the dispute to the Labour Court for adjudication…" in

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terms of section 191(5)(b). Having regard to the definition of a "party" in rule 1 of the Labour Court Rules [2] and section 161 of the LRA, the Court stated that "a referral may be made by the individual dismissed employees themselves or by their registered union". It continued that:

'A reading of sections 161 and 200 of the LRA together with rule 1 of the Rules clearly show that a union may only refer or represent a dismissed employee if that union is registered and if the dismissed employee who is a party to the matter is a member of that union'.

[14]

The Court accepted that the dismissed employees had a right to be represented during legal proceedings against the respondent, but that sections 161 and 200 of the LRA, read with Labour Court rule 1, "clearly provide that a dismissed employee may only be represented by the registered trade union of which the dismissed employee is a member".

[15]

Placing reliance on...