Fran­cis Joseph

A work­er who was em­ployed with the Na­tion­al Union of Gov­ern­ment and Fed­er­at­ed Work­ers (NUGFW), but was the gen­er­al sec­re­tary of the Na­tion­al Work­ers Union (NWU), has lost his dis­missal case in the In­dus­tri­al Court. In a judg­ment de­liv­ered by Deb­o­rah Thomas-Fe­lix, the court found that David Smith was in breach of his du­ty to serve NUGFW with good faith and fi­deli­ty. The court al­so found that Smith's po­si­tion as gen­er­al sec­re­tary of NWU was in con­flict of in­ter­est with his po­si­tion as di­rec­tor of com­mu­ni­ca­tions at NUGFW.

The court found that Smith's con­duct was of such a na­ture that his con­tin­ued em­ploy­ment was not in the in­ter­est of NUGFW. The court ruled that the dis­missal of the work­er was not harsh and op­pres­sive and that it would not in­ter­fere with the de­ci­sion tak­en by NUGFW. The court heard that Smith be­gan work­ing with NUGFW in May 1998 as an or­gan­i­sa­tion of­fi­cer. He was sub­se­quent­ly pro­mot­ed to di­rec­tor of com­mu­ni­ca­tions. In Oc­to­ber 2004, Smith, along with oth­ers, formed a reg­is­tered trade union known as NWU. He con­tin­ued to work with NUGFW al­though he held the po­si­tion of gen­er­al sec­re­tary of NWU.

At a meet­ing of NUGFW on Feb­ru­ary 2, 2007, Smith was asked about his af­fil­i­a­tion with NWU. He can­did­ly told the meet­ing that he was the gen­er­al sec­re­tary of that union. He was then asked to re­sign, but he re­fused. Smith said he was en­ti­tled to join any union of his choice and there was no con­flict of in­ter­est. At a spe­cial meet­ing of the gen­er­al coun­cil of NUGFW on Feb­ru­ary 8, 2007, Smith again re­peat­ed that he had a right to join a union of his choice. There was a de­bate and a vote and a de­ci­sion was tak­en to fire Smith. Smith con­tend­ed that his dis­missal was harsh and op­pres­sive, in that there was no in­ves­ti­ga­tion in­to the mat­ter and no dis­ci­pli­nary hear­ing was held.

He al­so ar­gued that un­der the In­dus­tri­al Re­la­tions Act, he was en­ti­tled to join a trade union and to hold of­fice as he so de­sired. In his tes­ti­mo­ny, James Lam­bert, pres­i­dent of NUGFW, said that at a meet­ing of the di­rec­tors of the Recog­ni­tion and Cer­ti­fi­ca­tion Board, he was in­formed that Smith was gen­er­al se­cr­tary of NWU. He said he be­came very con­cerned about a pos­si­ble con­flict of in­ter­est. Lam­bert told a meet­ing of his union that he was fur­ther in­formed that Smith was en­cour­ag­ing ACAWU mem­bers (BWIA) to join his union.

Thomas-Fe­lix, who sat with mem­ber Robert Lin­ton, said there was noth­ing re­al­ly to in­ves­ti­gate af­ter Smith very can­did­ly ad­mit­ted that he was the gen­er­al sec­re­tary of a ri­val union. "What he has in­deed ad­mit­ted to, is that he has es­tab­lished a busi­ness which is par­al­lel and sim­i­lar to the busi­ness of his em­ploy­er," Thomas-Fe­lix wrote. "This is one of the in­stances where a work­er can be dis­missed with­out an ex­pla­na­tion af­ter he had ad­mit­ted to his ac­tiv­i­ty."