Chemical, Energy, Paper, Printing, Wood and Allied Workers Union v Melani and Another (J2151/15) [2017] ZALCJHB 163 (4 April 2017)
The court found that the applicant's interpretation of its constitution and disciplinary code was incorrect. Clause 53 did not provide a general delegation of authority to the general secretary, and clause 7.6 required the secretariat to act only with a mandate from the NOBC. The requirement for consultation under...
Source-derived case information.
- Citation
- [2017] ZALCJHB 163
- Parties
- Applicant: Chemical, Energy, Paper, Printing, Wood and Allied Workers Union; Respondent: Mhlangabezi Melani; Respondent: Lawrence Nzele
- Court
- Labour Court Johannesburg
- Jurisdiction
- South Africa
- Case Number
- J2151/15
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Judgment on Disciplinary Proceedings
- Outcome
- Application for leave to appeal dismissed with costs.
- Judges
- Van Niekerk
- Legal Topics
- Union Constitution Interpretation, Disciplinary Procedure, Delegation of Authority, Consultation Requirement
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chemical, Energy, Paper, Printing, Wood and Allied Workers Union
Applicant
Mhlangabezi Melani
Respondent
Lawrence Nzele
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment on Disciplinary Proceedings
Legal Issues
- 1 Whether the disciplinary action against the first respondent was authorised under the applicant union's constitution and disciplinary code.
- 2 Whether the general secretary had delegated authority to institute disciplinary action.
- 3 Whether the requirement for consultation under the code was met.
Ratio Decidendi
The court found that the applicant's interpretation of its constitution and disciplinary code was incorrect. Clause 53 did not provide a general delegation of authority to the general secretary, and clause 7.6 required the secretariat to act only with a mandate from the NOBC. The requirement for consultation under paragraph 7.7 of the code was not met, as no consultation took place. The disciplinary proceedings were not conducted expeditiously, and if they were a continuation of previous proceedings, they breached the code. If they were new proceedings, they were unauthorised and lacked the required consultation. The court concluded that there was no reasonable prospect of another court...
Court Disposition
Application for leave to appeal dismissed with costs.
Orders
- The application for leave to appeal is dismissed, with costs.
Full Case Text
Judgment text and source record
23 paragraphs
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Case no: J 2151/15
In the matter between: CHEMICAL, ENERGY, PAPER, PRINTING, WOOD AND ALLIED WORKERS UNION and MHLANGABEZI MELANI LAWRENCE NZELE Applicant First Respondent Second Respondent
RULING: APPLICATION FOR LEAVE TO APPEAL
VAN NIEKERK J
[1] This is an application for leave to appeal against the entire order granted by this court on 1 December 2016 when the court held the disciplinary action initiated against the first applicant to be in breach of the applicant’s constitution and therefore null and void. I will assume for present purposes that the applicant is authorised to bring this application.
[2] The primary ground on which the applicant relies is that the court misconstrued the applicant’s constitution and its disciplinary
code. To the extent that the applicant relies on a construction of clause 53 of the constitution to contend that read with clause 7.6, there is a general delegation of authority to the general secretary to institute disciplinary action against the first respondent, it is clear from the wording of clause 53 that the clause applies to any person who is either employed by or a member of the applicant.
Moreover, clause 35(2) makes it clear that it is the REC or the NEC that is required to follow the guide when seeking to institute
disciplinary proceedings.
[3] To the extent that the applicant relies on clause 7.6 of the code, the plain meaning of the clause is that the ‘secretariat acting in their capacity as representatives of the NOBC’s’ means, as the court held, the secretariat acting with a mandate form the NOBC. The wording does not admit of an interpretation, such as the applicant contends, to the effect that an individual member of the NOBC has the power to act on his or her own initiative.
[4] In relation to the requirement of consultation referred to in paragraph 7.7 of the code, while it is correct that the code is a guideline that does not in itself permit departures from the code for no justifiable reason. The code requires consultation. No consultation took place.
[5] Finally, in regard to the applicants point on waiver, the code makes clear that disciplinary proceedings are to be conducted
expeditiously. If the proceedings initiated in October 2015 were a continuation of the 2014 proceedings, they were in breach of this requirement. If they were proceedings de novo, they were not authorised and did not follow on the required consultation with regional office bearers.
[6] In my view, there is no reasonable prospect of another court coming to a different conclusion. None of the grounds relied upon by the applicant has any merit. The application stands to be dismissed. There is no reason why costs should not follow the result.
I make the following order:
1. The application for leave to appeal is dismissed, with costs.
ANDRÉ VAN NIEKERK
JUDGE OF THE LABOUR COURT
Chambers
4 April 2017