Not all infractions amount to gross misconduct
BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: [email protected]. Go to: www.labourlawadvice.co.za.
The term ‘shop steward’ is a colloquial one and refers to the employee elected as the workplace representative by fellow employees who belong to the relevant trade union. The Labour Relations Act (LRA) officially refers to shop stewards as “trade union representatives”. Section 14 of the LRA gives these representatives (shop stewards) a number of special rights such as the right to:
- Assist employees in disciplinary and grievance hearings.
- Monitor and report any of the employer’s contraventions of the law to the appropriate authorities.
- Take reasonable time off with pay during working hours in order to perform these duties.
Where an employee who is acting in his/her capacity as a shop steward behaves in an objectionable manner he/she cannot be treated simply as an employee. The courts have found, for example that where a shop steward who is engaged in negotiations on behalf of union members tells management that they are crazy, this would be seen not as an employee being insubordinate or insulting to management but rather as one negotiator speaking to another on an equal level. Therefore, the shop steward could not be disciplined for misconduct due to this incident. Such discipline could be seen as unfair and could, in addition, breach the provisions of sections 5 and/or 187 of the LRA if they are found to constitute victimisation of the employee due to his/her union activities.
However, being a shop steward does not give the employee the right to behave how ever he/she likes whenever he/she likes. While he/she is not acting in his/her shop steward capacity he/she can be treated just like any employee. Furthermore, even where the shop steward is carrying out union activities he/she is still obliged to do so honestly and within the law. Thus, where a shop steward, during a legitimate strike, starts destroying property he cannot simply hide behind his shop steward mantle in order to avoid discipline or criminal prosecution.
Thus, managers do have the right to discipline shop stewards but this must be done for fair reasons and in a fair manner. Ignoring the legal procedures is extremely dangerous when disciplining any employee, but to do so in the case of a shop steward can cause irreparable damage.
Item 4(2) of the LRA’s Code Of Good Practice: Dismissal states that discipline against a shop steward should not be instituted before the employer has first consulted with the trade union. These consultations should be aimed at seeking ways of resolving the problem without resorting to discipline. The purpose of this provision is to allow the parties to find a solution that will reduce the likelihood of industrial unrest provoked by the dismissal of a shop steward.
However, while employers are required to enter into such pre-dismissal consultations in good faith, this does not mean that the employer is required to accept the trade union’s proposals for avoiding the discipline of the shop steward. That is, where the parties have thoroughly explored the alternatives in vain, the employer may then go ahead and institute disciplinary steps.
In the case of MEWUSA obo Ndaba vs Boiler Cleaning Services (2008, 1 BALR 5) the shop steward was dismissed for assaulting a colleague in a moving vehicle and breaking a window of the vehicle. The arbitrator found that this amounted to gross misconduct especially since assaulting someone in a moving vehicle was extremely dangerous. The dismissal was therefore substantively fair.
However, in the more recent case of National Union of Metalworkers of South Africa obo Moepeng vs Interfab (Pty) Ltd (2015, 10 BALR 1029, MEIBC) the Commissioner found the shop steward’s dismissal to have been unfair. He had been fired for discouraging his colleagues from accepting the employer’s wage offer. The Commissioner found that he was doing so in his capacity as a shop steward and ordered the employer to reinstate him with full retrospective effect.
The Boiler Cleaning Services decision makes it clear that, while the law sees shop stewards in a different light to other employees, the title of shop steward does not always act as a suit of armour against the sword of justice and discipline. But the Interfab decision acts as a warning to employers to get sound legal advice before deciding that a shop steward’s conduct deserves dismissal.
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