When a trade union has majority representation in a workplace, which is 50% + 1 member, one of the organisational rights the trade union qualifies for is Section 14 of the Labour Relations Act 66 of 1995 (referred to as LRA). This entitles them to elect a shop steward (also referred to as a trade union representative) on the condition that at least ten union members are employed with the employer.
A shop steward is an employee elected among his fellow union members and can perform various functions in the workplace. Some of these functions include representing trade union members during disciplinary and grievance procedures, organising workers and negotiating on behalf of the union members during the collective bargaining process between a trade union and the employer. The election process of a shop steward should accord to the trade union’s constitution.
While a shop steward performs their functions as an employee, they are not immune/exempted from liability in terms of the disciplinary code and procedures of the employer.
Item 4 (2) in Schedule 8 (The code of Good Practice: Dismissal) of LRA provides that, before an employer can take any disciplinary measures against a shop steward, the employer must first inform and consult with the relevant trade union.
The purpose of such consultation is to address the allegations and find a way to resolve the problem without resorting to a disciplinary hearing. If the employer and the trade union cannot reach a consensus, then the employer may follow due disciplinary process.
In the case of AMCU obo Masango v Andru Mining (Pty) Ltd [2018] 9 BALR 952 (CCMA), a shop steward was dismissed for sending a WhatsApp message to the workforce saying, that the employer intended to dismiss the employees. The employee claimed she had done this in her capacity as a shop steward. A work stoppage by the employees followed immediately after the shop steward sent the message. This was seen as incitement, and the dismissal was justified.
In National Union of Metal Workers of South Africa (NUMSA) obo Motloba v Johnson Controls Automotive SA (Pty) Ltd and Others [2017] 5 BLLR 483 (LAC), the question arise whether shop stewards are to be held to the same behavioural standard as other employees. Here, the employee had an altercation with the payroll administrator. According to the employer, the employee confronted the administrator aggressively by uttering: “Don’t lie to my people that I agreed to how they would be paid”.
The employee was dismissed because of physical and verbal assault, profound disrespect and threatening and/or intimidating behaviour towards the payroll administrator. The employee challenged his dismissal.
The Labour Appeal Court held that a shop steward should fearlessly pursue the interest of their constituency and ought to be protected against any form of victimisation for doing so. However, this is no licence to resort to defiance and needless confrontation. A shop steward remains an employee from whom his employer is entitled to expect conduct appropriate to that relationship.
In conclusion to this topic, shop stewards enjoy protection by the LRA, and employers should approach shop stewards differently than a normal employee during misconduct. However, it does not mean that shop stewards cannot be subjected to disciplinary action regardless of the capacity in which they act. It is advisable to follow the correct procedure when a shop steward commits misconduct. Having a sound relationship with a shop steward is also advisable, as this may alleviate various labour challenges.
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About The Author:
Frikkie van Tonder started his career at SEESA in 2015. He is currently a Labour and Consumer Protection & POPI Legal Advisor at the SEESA Bloemfontein branch. Frikkie has a B. Com (Law) and LLB degree.
References:
- Section 14 of Labour Relations Act 66 of 1995;
- Item 4 (2) in Schedule 8 (The code of Good Practice: Dismissal) of Labour Relations Act, 66 of 1995;
- AMCU obo Masango v Andru Mining (Pty) Ltd [2018] 9 BALR 952 (CCMA);
- National Union of Metal Workers of South Africa (NUMSA) obo Motloba v Johnson Controls Automotive SA (Pty) Ltd and Others [2017] 5 BLLR 483 (LAC);
- Aadil Patel, Practice Head, Director at Cliffe Dekker Hofmeyer Inc. Johannesburg;
- Ivan Israelstam, Chief Executive of Labour Law Management Consulting.