shops 10.1

COSATU has joined NUMSA in welcoming the award by CCMA Commissioner, Advocate Floors Brand, on the protracted legal battle arising out of the dismissal of 1 300 Volkswagen (VWSA) employees who were dismissed on 3 February 2000 for embarking on a strike in VWSA Uitenhage. This is an edited version of NUMSA's statement of 24 January 2001.

The arbitrator ruled that the dismissal of the applicants was substantively fair but procedurally unfair and ruled that the applicants should be reinstated from 5 February 2001.

From the beginning of the strike action, NUMSA warned our members at large and appealed to the community that the matter in question - the suspension of shop stewards - was an internal matter that should be resolved within the constitutional structures of the union.

We provided this opportunity by affording the affected shop stewards a fair disciplinary hearing, which they all attended in terms of the provisions of the union constitution.

Had we all respected and abided by the constitution that we all drafted in the founding congress of NUMSA, honoured our organisation's obligations to defend the constitutions and the policies that guide us as members of the union, this matter would have been resolved from the beginning.

As we welcome the judgement of Advocate Brand the re-instating of the affected employees, it is incumbent upon the employees who have been granted this relief after a year, and the progressive trade union movement, to draw certain organisational and political lessons from this marathon dispute.

In his ruling, Advocate Brand relied on the recent judgement by Judge Zondo that VWSA should have afforded the individual employees an opportunity to state their case before any contemplated disciplinary action that could lead to a dismissal.

He drew a distinction between the requirement to issue an ultimatum and the hearing to observe the 'audi' rule. He found "that a hearing an ultimatum are two different things. They serve separate and distinct purposes. The purpose of a hearing is to hear what explanation the other side has for its conduct and to hear such representations as it may make about what action, if any, can or should be taken against it."

Contrary to the view widely canvassed by our detractors that NUMSA 'colluded' with VWSA in the dismissals, Advocate Brand observed that: "A good relationship between the shop stewards and the trade union officials on the one hand and management on the other, and the supporting of the collective bargaining procedure, do not prove collusion. The evidence, in my view, does not prove such collusion."

The Commissioner, without any influence being exerted on him on this matter, exonerated NUMSA from any wrongdoing. We intent studying the transcripts of the proceedings and will take appropriate legal action in defence of our reputation.

VWSA has an obligation in terms of this award to facilitate the smooth absorption of the employees re-instated into the production process; and to negotiate with NUMSA the fate of those who replaced the dismissed employees. Any other step contemplated by the company may be counter-productive to the company, the Eastern Cape and the South African economy. This matter has to be laid to rest.

As was said by Judge Zondo in his judgement, which preceded this matter: "For the overwhelming majority of workers in this country, their job is about all they and their families depend upon for a living. If you take away their jobs, you almost take their whole being and you subject their families an sometimes their communities to famine and starvation…. "Basic justice between employer and the employee dictates that a decision with such implications for those affected by it should not and cannot be taken without the workers or their union or representatives being afforded an opportunity to be heard in one way or another."

This thinking, previously unheard of in labour matters in our country, signals a paradigm shift and an opportunity to link industrial related matters to socio-economic interests. How we shape the balance of forces remains an issue of contestation through debates and struggles.

In the VWSA matter, we must now close this chapter and begin a healing process between conflicting interests that will ensure a long-lasting relationship between VWSA and its employees represented by NUMSA. We have no illusions that this is going to be an easy task to accomplish.