Food and Allied Workers Union v Ngcobo N.O. and Another

Two long-serving employees of Nestlé South Africa were dismissed in May 2002 and entrusted their unfair dismissal claims to their trade union, the Food and Allied Workers Union (FAWU). The Union undertook to represent them, referred the dispute to conciliation at the CCMA, but thereafter failed to timeously refer the dispute to the Labour Court within the prescribed 90-day period. It also failed to apply for condonation and repeatedly misled the employees into believing their case was being pursued. Eventually, nearly two years later, the Union withdrew from representation after obtaining legal advice, without having protected the employees from prejudice. The employees’ unfair dismissal claims lapsed and they sued the Union for damages arising from its failure properly to prosecute their claims.

Leave to appeal was refused. The decisions of the High Court and the Supreme Court of Appeal holding the Union liable for damages to the employees remained intact.

The case confirms that trade unions, despite their constitutional right to organisational autonomy, are not immune from contractual liability toward members they undertake to represent. It clarifies the limits of section 23(4)(a) of the Constitution and section 200 of the LRA, reinforcing accountability of unions in legal representation and protecting members from negligent conduct.