grounds of its constitutional scope. It could not have been the intention of the legislature to unduly restrict the right to representation by a union to the extent that it is up to a third party to deny a worker that right, based on the trade union’s constitution.
However, this statement cannot be divorced from the facts and legal question in the Mabote judgment.
Briefly, the case concerned the issue of whether or not an employee is entitled to be represented at arbitration by a trade union of which such employee is a member, if the employee’s services to the employer do not fall within the scope of the union’s constitution. In this case an employee referred an unfair dismissal dispute to conciliation and later to the Commission for Conciliation, Mediation and Arbitration (CCMA). The National Union of Mineworkers (NUM), which had been exercising organisational rights in the workplace of the employer, represented the employee at the CCMA.
The employer took issue, arguing the scope of NUM’s constitution did not provide for the business of the employer and the employee therefore could not be represented by NUM.