MISA leaves no stone unturned
Article by Tiekie Mocke, Manager: Legal Department at MISA.
Our promise to our members is to protect and advance your interests and to render service of the highest order. We are, however, bound and guided by rules and legislation, the judgments of the courts and the merits and circumstances of each dispute. After all, we are the intelligent alternative.
We will not be true to our mission if we provide false hope, create unrealistic expectations or attempt to go beyond legislation. Each case is therefore judged on merit and considered within the legal framework.
It is our duty to determine whether a dismissal based on operational requirements is fair and in line with the provisions of the Labour Relations Act.
One such aspect is the selection criteria used to determine whether an employee/member will be affected, as well as whether the employer followed the correct process by consulting with MISA first. Should the employer not have consulted with us, it is our duty to interdict them from continuing with the process without us. This is done through an urgent application to the Labour Court or High Court. Let’s look at a few cases.
Case won but member resigns a month later
MISA filed an urgent application through the Labour Court in February 2019 to instruct an employer in Gauteng to reinstate one of our members, after being unfairly dismissed due to operational requirements. The employer refused to follow a fair process and disregarded MISA’s input and consultation. Once the interdict was issued, the employer reinstated our member. It was a costly exercise, though, as MISA paid legal fees to the value of R21 000.
The sad part is that our member, despite the mandate to MISA, resigned less than a month later!
Suitable alternative found but to no avail
In the Western Cape, an employer identified one of our members for retrenchment. This was done without prior consultation with MISA. (It is important to note that MISA must be consulted in such cases, as is prescribed in the Labour Relations Act.)
Once we became aware of the looming retrenchment, MISA immediately engaged with the employer and halted the process. Our member was previously a service advisor at the dealership and instructed us to negotiate a similar position as an alternative to retrenchment.
Through MISA’s persistence, we succeeded in securing a service advisor’s position for our member at the same salary and with an opportunity to earn incentives.
The regrettable part is that our member, despite the instruction to MISA, refused to accept the position and was retrenched without any severance package.
Disciplinary hearings or dismissals
MISA’s By-laws provide that we may refuse to render legal services to any member if we believe that the member has no reasonable prospects of succeeding in their dispute, case or claim against their employer.
Having said that, our refusal is not a one-sided uninformed decision. We are an ethical organisation and MISA will not get involved in cases where our members have admitted to theft, fraud or gross dishonesty.
In a recent case, our member was charged with fraud and gross dishonesty. After receipt of the notice and during the interview, our member again denied commiting fraud or being dishonest.
MISA incurred extensive travel costs to represent our member in Cape Town. Sadly, it was then confirmed that our member had, in fact, after 16 years of service, made a screengrab of a customer’s signature and pasted it onto the customer’s contract.
The unfortunate part is that our members’ contributions allowed us to travel and represent them. Yet, in this instance we wasted money and resources on a member who was dishonest and misrepresented the facts to us.
In another case, an employer in KwaZulu-Natal became aware of gross irregularities after an audit revealed that critical safety components were fitted by unqualified employees and discarded without any safety precautions. Joint misconduct was found ranging from management level to lower level. MISA reviewed the matter and on a technical point engaged with the employer in an attempt to reach consensus on possible settlements and ways to assist our members. The employer engaged in good faith with MISA and settlement agreements were negotiated on behalf of every member with the exception of two. During arbitration, on a technical point only, final settlements were negotiated.
It was therefore surprising to learn, during a MISA visit, that one of our members had said they were not ready to join MISA again as ‘MISA had done nothing for the them’!
The message that I wish to bring to you, as a MISA member, is that we will leave no stone unturned to assist you when you are involved in any labour dispute, regardless the cost. That is our responsibility. Your responsibility is honesty and accountability.
We don’t perform miracles; we are skilled labour experts striving and succeeding in rendering service of the highest order.