Cape Town - Trade union Fawu has been denied leave to appeal against a Supreme Court of Appeal (SCA) ruling holding it liable for negligence in providing legal representation for its members.
In a unanimous judgment handed down on Wednesday, the Constitutional Court held that the Food and Allied Workers' Union (Fawu) application had no prospects of success.
The court found that even on the most favourable interpretation of the union’s constitution, it was not entitled to withdraw from its undertaking to provide legal assistance.
Instead, it was bound to perform according to its contracts and could be held liable for breach of those contracts.
“The clause 1/8in the union's constitution 3/8 gives the union the freedom to contract to provide legal assistance, not the freedom not to perform its contracts,” the constitutional court judgment read.
The court ruled that even if a union could withdraw, it had a duty to take that decision in good faith and promptly notify its members.
“... The union’s argument flounders in every way. It has a constitutional colouring, but no constitutional substance.”
In May 2002, two Nestle workers were dismissed after 20 years of service, and Fawu said it would represent them in an unfair dismissal claim.
The Commission for Conciliation, Mediation, and Arbitration was not able to resolve the matter and Fawu took the matter to the Labour Court.
The union did not meet a 90-day deadline for the matter in the Labour Court and told employees the matter could be revived if the court granted condonation.
Fawu's attorney then told the union the claim had no chance of success. The union did not take the matter further.
The employees brought a civil claim against Fawu in the KwaZulu-Natal High Court and the court ruled in their favour.
The SCA later also ruled in favour of the employees.
Fawu argued in the Constitutional Court in August that its constitution allowed it to withdraw legal services once it took the view that it would not be in its best interests to pursue a case.
It also relied on a provision in the Constitution which stated that a union was entitled to determine its own administration, programmes and activities.
The employees argued that leave to appeal should be denied because the matter did not raise a genuine constitutional issue.
The Constitutional Court was of the view that the employees were left in a “weaker and more precarious” legal position by having to apply for condonation and reinstatement of a claim in the Labour Court.
“They had lost their right to adjudication of their claim. In its place was a weaker right: the right to seek an uncertain indulgence.
“That they could still try to obtain the indulgence is no answer to their complaint about what they lost, and their agreement required precisely that the union avoid this loss,” the court found.