Picture: REUTERS/Denis Balibouse

The Pietermaritzburg High Court has hit the Food and Allied Workers Union with a hefty damages penalty for failing to champion the rights of two retrenched workers.

The workers, M Ndlela – who has since died – and M Mkhize, were sales representatives at Nestlé when they were retrenched in May 2002.

They argued they were unfairly dismissed as they were not told earlier about the retrenchments or that they were necessary because the company was restructuring certain divisions.

The two workers sued the union for failing to refer their cases to the Labour Court.


Pietermaritzburg High Court Judge Kevin Swain ruled that the union had acted negligently and ordered that Ndlela and Mkhize be paid just over R100 000 each in damages.

He ordered that the union pay annual interest of 15 percent on the damages amount from August 2004, the date the summons was issued.

The union also has to pay Ndlela’s and Mkhize’s considerable costs of the application except the costs of one adjournment in 2009 as this was at the workers’ request.

According to evidence before the court, when Ndlela and Mkhize heard rumours from another employee of their possible dismissal, they went to a union office to fill in forms to have their membership reinstated.

However, their monthly union fees were not deducted from their salary. They enquired about this and a union representative assured them that their membership was guaranteed.

The union disputed the workers’ statement.

It said the men were chased away when they approached the union’s office to reapply because they had not followed the correct procedures.

Judge Swain rejected the union’s version of events as it was inconsistent and found that the men were proper members of Fawu.

Mkhize testified that after he was retrenched, a union representative referred to only as ‘‘Dhlomo’’ informed him that his and Ndlela’s cases had been referred to the Commission for Conciliation, Mediation and Arbitration (CCMA).

The matter was not resolved by the CCMA and was meant to be referred to the Labour Court. The union failed to do this.

Judge Swain said there had been an inordinate delay by the union in dealing with the cases as it failed to take any action for two years.

“The certificate of non-resolution was issued by the CCMA in June 2002 and the union was obliged to refer the workers’ cases to the Labour Court within 90 days.’’

‘‘Nothing, however, was done, with the only excuse being that the legal officer was ill in hospital and the files were locked in an office that no one had access to.

“In April 2004, the workers were advised that the union was no longer prepared to proceed with the case,” the judge said.

The union said it had decided not to proceed after attorney Jay Surju gave a legal opinion that the two retrenchments had not been unfair.

Judge Swain said that had the cases been sent to the Labour Court, Ndlela and Mkhize would have been successful in proving that their dismissals were unfair. - The Mercury