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Durban - In a “victory for the man on the street”, a labour union that botched up a case involving two retrenched Nestlé employees has had its appeal to South Africa’s highest court dismissed.
Thursday’s the Constitutional Court ruling brought to a close 10 years of pain and uncertainty for KwaMashu man, Michael Mkhize, and the family of his retrenched colleague, Mandla Ndlela, who died of a heart attack in 2010.
The court dismissed the Food and Allied Workers Union’s application for leave to appeal against a Supreme Court of Appeal ruling in favour of Mkhize and Ndlela, pointing out in its judgment the union’s shortcomings in its handling of the matter.
“I heard the news on radio this morning. Now I’m happy,” Mkhize said on Thursday.
The father of two is relieved that after a decade of financial struggle, he could now live out the rest of his life comfortably, and, he hoped, in better health.
“Life has been very difficult. I’m now 62. I was 52 at the time I was retrenched,” he said. “Once you are over 50, it is very hard to find a job. My wife and I are surviving on my government grant. I’m now on heart disease medication which I have to take daily.”
Mkhize and Ndlela were retrenched from Nestlé in 2002. Both men worked as sales representatives for more than 20 years and had approached Fawu to represent them in their unfair dismissal claims.
The union referred the dispute for conciliation at the Commission for Conciliation, Mediation and Arbitration and one of its officials appeared on behalf of the two former employees.
“But, that is about all it did,” Constitutional Court Justice Edwin Cameron said in the judgment.
After conciliation failed, the union did not refer the matter to the Labour Court within the window period despite saying it would. “All its officials did, for nearly a year, was to assure the employees that their matter was being attended to,” read the unanimous judgment.
Mkhize and Ndlela then took legal action.
Seven years later, the Pietermaritzburg High Court, ruled in their favour, finding that the union had acted negligently and ordered that Mkhize and Ndlela be paid just more than R100 000 each in damages.
On appeal, the Supreme Court of Appeal found that the union had failed the men.
In the Constitutional Court, the union argued that it enjoyed special protection under the constitution and the Labour Relations Act, but the court found that its argument did not raise a constitutional issue and it had “no prospects of success”.
Bhauna Hansjee of McGregor Erasmus Attorneys, the firm representing Mkhize and Ngcobo (his life partner Lungi Ngcobo stood in for him), said this was a “victory for the man on the street”. She said the union would now also have to pay the costs for everything from the KZN High Court application through to the Constitutional Court appeal.
Mkhize said the case had caused a great deal of stress for him and his dead colleague.
The union’s deputy general secretary, Moleko Phakedi, said the union would study the judgment and also seek legal advice on the cost implications.