Shop stewards and union misconduct

How to deal with shop stewards or union misconduct

Johanette Rheeder

The question as to how far a Union, its officials and representatives can go to protest or protect the interests of its members, which is generally called organisational rights and the right to strike, and as enshrined in the Constitution and the Labour Relations Act, (LRA) are sometimes confused with common acts of misconduct. These acts are perceived by union officials, representatives and employees to be their right in the name of collective power as part of the bargaining process. It is not disputed that Unions, officials and shop stewards alike, ought to be protected from certain liabilities in order to enable them to effectively perform the functions assigned to them by the LRA, as protected by our Constitution.

However, a Union cannot escape the conduct of its members, officials and shop stewards and can be held liable for delictual damages due to the fault of the Union which caused a loss to the employer. This liability can be incurred through the conduct of the Union itself or through the conduct of the Union’s members (the employees) or officials and the liability arises from the Union’s vicarious liability for their actions. A Union can also be held liable for breach of contract if the terms of a contract with the employer or its members, are unlawfully and unjustifiably breached by the Union and contractual damages are incurred as a result.

The LRA, section 97(3), indemnifies union representatives from civil liability for acts conducted in the furtherance of their lawful duties and prohibits victimisation. Such action can constitute automatic unfair conduct on behalf of the employer.

However, as employees they are subject to the usual disciplinary rules of the employer, including the need to subordinate themselves to the authority of the employer and its managers, which is sometimes in conflict with their functions as shop stewards where they are required to assume an ‘equal’ role in the representative and collective bargaining context against the same managers! This poses excellent opportunity for conflict and the fine line between misconduct and fulfilling their mandate is easily crossed.

There is no doubt that a shop steward that goes beyond the acceptable bounds of conduct in fulfilling his duties can be disciplined and dismissed for misconduct. This is confirmed by schedule 8: Code of Good Practice: on dismissal, requiring the Union to be notified of any disciplinary action against its shop steward.

Trade union representatives (shop stewards) are perhaps the best example of an employee having divided loyalties. On the one hand, as an employee, he or she remains subject to the employer’s right of control and his or her own subordinate position. Clearly, when an employee swops hats to represent a fellow worker in a disciplinary hearing, a certain degree of conflict will arise. But should the shop steward go too far, he or she may find himself (or herself) disciplined as well. The fact that a shop steward is exercising his or her duties does not offer absolute protection against misconduct charges or dismissal.

A dismissal for any reason relating to the employee’s activities as a shop steward may constitute an automatically unfair dismissal. In CEPPWAWU & Another v Glass & Aluminium 2000 CC[1] the Labour Appeal Court held that the resignation of a shop steward constituted a constructive dismissal (the shop steward had resigned after an argument with the employer). The Court also found that the reason for the dismissal related to the employee’s exercising his functions as shop steward — for this reason the dismissal was found to be automatically unfair in terms of section 187 of the Labour Relations Act of 1995.

Managers are also entitled to participate in union activities. In the case of senior managers being or becoming shop stewards, however, there may be a considerable conflict of interest as the manager may know something about the organisation’s bargaining approach (by virtue of his being a manager) — and wanting, perhaps, to use that information to promote the position of the trade union. For some time, employers took the view that getting around this entailed formulating a rule that prohibited senior managers from joining or participating in a trade union’ s activities. Again, the conflict here is between the senior manager’s freedom of association and the employer’s rights: to expect loyalty and dedication from its senior managers and the right to have its confidential information kept confidential.

Naturally, the employer can approach the union and request the union to appoint another shop steward and to solve the problem this way. But again, dismissal is not an option — at least, not a dismissal in respect of the employee’s union activities. Nor can the employer refuse to promote an employee if that employee is engaged in union activities.

These employer actions would constitute victimisation on the basis of the employee’s union membership or activities and the employee would have rights not only in respect of a possible automatically unfair dismissal, but also in terms of section 9 of the Labour Relations Act.

But nothing prevents the employer from dismissing an employee for misconduct or incapacity in cases such as these. If the senior manager, for example, discloses confidential information to the trade union, knowing that this information was sensitive, confidential and that the disclosure could harm the employer, the senior manager could be charged with misconduct. If the senior manager refuses to do certain things because it would conflict with his role as a shop steward, the manager may face charges of insubordination. If the manager is incapable of doing certain things because of his union engagement, there is also the possibility of dismissal for incapacity. The leading decision in this regard is IMATU & Others v Rustenburg Transitional Council[2].

An important decision in this context is the Labour Appeal Court decision in Kroukam v SA Airlink (Pty) Ltd[3]. The employee was a pilot and was dismissed for misconduct after being found guilty on charges of insubordination and being a disruptive influence in the operations of the company. A the time of his dismissal he was also chairperson of the union — the Airlines Pilots Association. His contention was that he had been dismissed because of his union activities. Two opposing versions were before the court, by the employer’s - being that the dismissal was for misconduct unrelated to the employee’s union activities and by the employee, arguing that the dismissal was the result of his union engagement.

One of the disciplinary charges related to the fact that the employee had failed to meet a performance target. But as it turned out, other pilots had also flown less than 950 hours and they were not charged with misconduct. Other important facts were that the employee had played an active role in representing the interests of the union, other employees, and in litigation the union brought against the employer (contempt of court proceedings).

In answering the question as to the real reason for the employee’s dismissal, the Labour Appeal Court engages in a detailed analysis of events and statements. The Labour Appeal Court confirmed that there are cases where the employer could charge the employee with misconduct and that this could lead to a dismissal — in spite of the employee’s union engagement. A court should, however, be cautious in coming to the conclusion that the real reason for the dismissal was the employee’s union engagement, unless there is sufficient evidence to justify such a conclusion.

On the basis of the evidence presented, the Labour Appeal Court concluded that the “principal or dominant reason” for the employee’s dismissal was the fact that the employer was not happy with the role the employee was playing in representing the interests of the union and its members. Naturally, the employer was also not happy with the role the employee had played in bringing legal action against the employer. There were also occasions when the employee swore or used strong language in speaking to other managers — this irritated, exasperated or even angered some managers. They could, in other words, not wait to see the departure of this disruptive employee.

Part of the fault, it seems, lay with the inability of the managers to deal with the issues and the shift from subordinate to competing party over the negotiation table. In doing his job as a union representative, the employee sometimes challenging the decisions of management; something the managers no doubt may find unacceptable. If the managers cannot deal with a union official who challenged their decisions, they needed help, said the court in Kroucam. An employer should consider bringing in advisors to help its managers deal with difficult and challenging union officials or perhaps the employer should consider getting managers who have the experience, skill and expertise to handle union officials.

Naturally, the union and its members will have certain expectations of its representatives. The union and members will constantly be evaluating whether a certain representative is suitable to represent their interests. As long as the union and members believe that a particular official is doing his or her job as union representative well, it is not up to the employer to force a change of union representative by dismissing those whose style and approach cause some discomfort or inconvenience.

In Rustenburg Platinum Mines Ltd v Mouthpiece Workers Union[4] the union was ordered to pay compensation to the employer for the employees’ participation in an unprotected strike after union officials were videotaped urging the employees not to return to work. Only after the union was threatened with disciplinary action did they urge their members to return to work.

Therefore, a trade union or its members, or both, can be held liable for losses occasioned by the unprotected strike. The employees can be held liable because they participated in the unprotected strike and the union can be held liable if it calls for an unprotected strike or fails to take steps to bring the strike to an end and losses are incurred as a result thereof.

In the event of a collective bargaining relationship between the union and the employer, this relationship presupposes a duty on the part of the union to ensure that its members comply with the provisions of the LRA. If the union or the shop stewards fail to intervene in an unprotected strike then the union can be held liable for the losses suffered.

In Manguang Local Municipality v SAMWU[5] the Court held that where a trade union has a collective bargaining relationship with an employer and the union’s members embark on unprotected strike action of which the union is aware of and fails to intervene without just cause, the union is liable in terms of s 68(1) (b) to compensate the employer for any losses incurred as a result.

Similarly, if a trade union delegates its responsibility to resolve the strike to shop stewards employed by the employer and they fail to discharge this obligation, the trade union is liable to compensate the employer for losses incurred.

In order to avoid liability unions must take prompt and clear action to distance itself from and to repudiate unauthorised actions of shop stewards or its members. It must also take immediate steps to bring the strike to an end and communicate it clearly to its shop stewards and employee members[6].

In terms of schedule 8, participation in a strike that does not comply with the provisions of Chapter IV is misconduct. However, like any other act of misconduct, it does not always deserve dismissal. The substantive fairness of dismissal in these circumstances must be determined in the light of the facts of the case, including-

(a)        the seriousness of the contravention of this Act;

(b)        attempts made to comply with this Act; and

(c)        whether or not the strike was in response to unjustified conduct by the employer.

Ultimatums

In terms of schedule 8, the employer must follow a fair procedure when it comes to ultimatums. Prior to dismissal the employer should, at the earliest opportunity, contact a trade union official to discuss the course of action it intends to adopt. The employer should issue an ultimatum in clear and unambiguous terms that should state what is required of the employees and what sanction will be imposed if they do not comply with the ultimatum. The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it. If the employer cannot reasonably be expected to extend these steps to the employees in question, the employer may dispense with them.

For more information contact Johanette Rheeder on This e-mail address is being protected from spambots. You need JavaScript enabled to view it