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A question of that crops up from time to time is the question of whether or not senior management are allowed to join a trade union.

The question that should be asked is not whether senior management are allowed to join a trade union - because they are allowed to join a trade union. They have freedom of choice the same as any other employee, and a senior manager is free to join a trade union and hold office in that trade union if he so chooses.

The question that should be asked is what would happen in terms of conflict of interest between the senior managers duties and responsibilities to the employer, and his duties and responsibilities to the trade union, if he was a member or office-bearer of such trade union?

 

That is the crux of the issue.

There is unfortunately not much by way of case law available on this question, but I did manage to find some information.

In IMATU & others v Rustenburg Transitional Council [1999] 12 BLLR 1299 (LC), case number J1543/98, heard in the Labour Court on 17th September 1999.

The respondent employer in this matter had adopted a resolution prohibiting senior employees from serving in  executive positions in trade unions and participating in trade union activities.

The stance of the respondent was that its senior officials could not discharge the obligations as trade union office-bearers, and at the same time be responsible for directing and disciplining staff, and for ensuring that the council's resolutions were carried out. The respondent also pointed out that these officials concerned and access to confidential information.

 

The question facing the court was the respondent's resolution, stating that "employees on the job level 1 – 3 not be allowed to serve in executive positions of trade unions, or be involved in trade union activities."

The words " or be involved in trade union activities" were later deleted from the resolution, but the balance remained.

The trade union took the matter to the Labour Court, in an effort to have the entire resolution set aside.

The job levels referred to in the resolution comprised the senior executive and managerial officials of the council.

 

The respondent gave three reasons for introducing this resolution - the first was that officials of the council have access to confidential information such as levels of maximum increases to which the respondent my degree in wage negotiations, which they would be duty-bound to disclose to the trade union if they served on its executive.

The second was that the senior managers are required to initiate or conduct disciplinary hearings against employees, and should the accused employee be a member of the union, the senior manager acting as chairman might also be a member of the trade union, and this could be seen to compromised be fulfilling of the disciplinary duties.

 

The third was that the senior managers might, by reason of their membership of the union executive, find themselves in a position in which they were" unable or unwilling to fulfil the essential tasks required of them by the employer."

The judgement stated that when employees join a trade union, they commit themselves to a body whose primary object is to maximise the benefit that its members arrived from their relationship with their employers. The point here is that trade unions are competitors for a share in the revenue of the enterprise, and by joining a union, the employee commits himself to a body that stands in opposition to the employer.

In a sense, the employee" goes over" to the opposition.

 

This, stated the judgement, can be a breach of the duty of fidelity owed by an employee to an employer, for " the servant is bound to give of personal service to his master and, as a consequence, to refrain from any course of conduct, the natural tendency of which is to injure his master's trade or business".  (R v Eayrs (1894) 12 SC 330 at 332)

The judgement also quoted from Premier Medical & Industrial Equipment (Pty) Ltd v Winkler 1971 (3) SA 866 (W) at 867H–I

 "There can be no doubt that during the currency of his contract of employment the servant owes a fiduciary duty to his master which involves an obligation not to work against his master's interests."

The Judge stated further that " there is, as far as I know, no place in our law in which it has been held to be lawful to dismiss an employee for joining a union, but I have little doubt that such a dismissal might be legitimate at common law.  Aligning oneself with a body specifically established as a counterweight to the employer is arguably a greater infringement of the duty of liability than taking up a part-time position with a competitor ; it certainly seems to be no less."

"The determining factor is, generally, the status of the employee : the more senior he is , the greater loyalty expected of him."

 

A senior employee is expected to be loyal to his employer - he is expected to support his employer in any conflicts or negotiations with the trade union, and even when a strike occurs, senior employees on expected to take up the pick and shovel.

It is obvious that a senior managerial employee who is a member of the trade union, or office-bearer of it, who has called strike, would be placed in a position of serious divided loyalty.

Such a situation would be untenable to the employee concerned, as well as to the employer.

 

The Bill of Rights, section 23,  confers on every worker the right to join a trade union and to participate in the activities and programmes of a trade union, and the right to strike.

Similarly, certain sections of the Labour Relations Act confer such rights upon an employee. Including the right to participate in the lawful activities of the union and to stand for election and be eligible for appointment as an office-bearer or official of the trade union.

The upshot of this judgement was that the respondent's resolution, prohibiting employees on job levels 1 – 3 from serving in executive positions on trade unions, was declared to be an unlawful resolution, and was set aside to the extent of the prohibition.

What is really means is that should members of senior management wish to join a trade union, they can do so.

Should those members of senior management wish to or be elected to hold office in the trade union, they can do so.

But they would then have to make a choice - between their duty of fidelity to the employer, and their duties and responsibilities to the trade union.

Such a manager could face disciplinary action for breach of duty of fidelity to his employer.

 

He could not face disciplinary action for holding union office or union membership per se.

Such a senior managers have an unfettered right to join and hold office in trade unions - but they are still bound to perform their duties and responsibilities to the employer.

It really is a matter where the senior manager must choose between the frying pan and the fire.

 

For further information, contact [email protected]

 

Retrenchments: Transformation, a selection criterion?

 

Key information

 

When an employer contemplates dismissals based on operational requirements, section 189(1) of the Labour Relations Act 66 of 1995 (LRA) requires the employer to consult any person impacted by the decision, including trade unions whose members may be affected by the proposed retrenchments. The employer and other consulting parties must engage in a meaningful joint consensus-seeking process and attempt to reach consensus on, amongst other things, the method for selecting employees to be dismissed. Where an employer does not comply with a fair procedure, section 189A(13) provides a consulting party with recourse to approach the Labour Court.

 

2022/05

By Phetheni Nkuna, Director and Mbulelo Mango, Associate Designate, Employment Law, Cliffe Dekker Hofmeyr

 

Where the consulting parties have agreed on the selection criteria to be used, the employer is obliged to implement the criteria. However, where no agreement can be reached between the consulting parties, the employer is obliged to use criteria that is fair and objective. This legal position has been crystallised by the Constitutional Court (CC) in its recent judgment of Solidarity obo Members v Barloworld Equipment Southern Africa and Others [2022] ZACC 15I.

 

Evaluating substance vs procedure

On 27 April 2020, Barloworld notified its employees, including Solidarity’s members, of its intention to restructure its operations resulting from the impact of COVID-19. Shortly thereafter, Barloworld lodged a request with the Commission for Conciliation, Mediation and Arbitration (CCMA) for it to facilitate a joint consensus-seeking process between the affected parties and Barloworld. During the consultative process that ensued. Solidarity took issue with the proposed selection criteria – specifically, the inclusion of transformation as part of the selection criteria.

 

Solidarity and the National Union of Metalworkers of South Africa (NUMSA) approached the Labour Court in separate applications contending procedural irregularities in the consultation process. One of the issues challenged by Solidarity was Barloworld’s failure to consult on various issues, including transformation as a selection criterion. This was unlawful and amounted to unfair discrimination. NUMSA contended that the process was flawed in that Barloworld had failed to disclose information that was essential to enable its effective participation; there had been no meaningful consultation on alternatives to retrenchment; there had been no joint consensus-seeking consultation on the selection criterion; and Barloworld had called workers to interviews without furnishing them with important information that they needed prior to attending the interviews.

 

The Labour Court distinguished between procedural fairness and compliance with fair procedure which is what is envisaged in section 189A(13) of the LRA. Disputes of procedural fairness go beyond the employer’s statutory obligations alone and are excluded from the ambit of section 189A(13). The primary remedy envisaged by section 189A(13) is compliance, which is no longer possible once the consultation process is concluded. Solidarity and NUMSA’s complaints did not raise compliance issues, but rather general issues related to procedural and substantive fairness.

 

The court also held that in its view transformation is not a selection criterion, per se, and that Solidarity’s complaint, properly construed, related to substantive fairness. The court reasoned that the issue of which selection criteria to apply is one of substance and not procedure. It then stated that Solidarity had a right, in terms of section 189A(7)(b)(ii), to refer the dispute as to whether there was a fair reason for the dismissal to the court in terms of section 191(11) of the LRA. The court also held that the issues raised by NUMSA were issues of substance.

 

Before the Constitutional Court

Solidarity’s petition was refused by the Labour Appeal Court. It then approached the CC on the basis that it had jurisdiction as it concerned the proper interpretation of sections 189 and 189A(13) of the LRA which were underpinned by the right to fair labour practices. Barloworld disagreed.

 

The CC held that there was meaningful joint consensus-seeking consultation in that, on the evidence before it, Barloworld genuinely and meaningfully considered the representations made by Solidarity. Parties only need to seek consensus and do not necessarily need to agree. Solidarity rejected the inclusion of transformation in the selection criteria, with the effect that the parties deadlocked on the issue. The failure to reach consensus or agreement did not necessarily mean that the consultation process was not meaningful.

 

The CC also considered whether failure to present the selection criteria matrix led to a conclusion that the consultation process was procedurally unfair. Once the parties had deadlocked, the next step was for Solidarity to approach the Labour Court in order for it to adjudicate on the substantive fairness of relying on transformation as part of the selection criteria.

 

In relation to the distinction between procedural fairness and compliance with fair procedure, the CC reiterated that the Labour Court may not adjudicate a dispute about the procedural fairness of a dismissal based on the employer’s operational requirements in any dispute referred to it in terms of section 191(5)(b)(ii). Disputes about procedural fairness, as a distinctive claim or cause of action, that a dismissal on the basis of operational requirements was procedurally unfair, are removed from the adjudicative reach of the Labour Court. In order for the Labour Court to adjudicate a claim of the unfairness of a procedure in dismissals for operational requirements, the court must be approached in terms of section 189A(13) on the basis of non-compliance with the procedures prescribed by sections 189 or 189A of the LRA.

 

Finally, the CC differed with the Labour Court on the timing of the referral – that is, after the consultation process had been concluded. Section 189A(17)(a) of the LRA provides that “an application in terms of subsection (13) must be brought not later than 30 days after the employer has given notice to terminate the employees’ services or, if notice is not given, the date on which the employees are dismissed”. The referral was made timeously.

 

For more information contact Phetheni Nkuna at [email protected] or Mbulelo Mango at [email protected]

 

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

This article does not constitute legal advice and is based on the author’s interpretation of legislation and relevant case law. For an informed opinion and/or assistance with a labour-related matter, you are encouraged to arrange a formal consultation with the author.

 

 

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