Trade unionism can mean problems for any employer.
Due to their uncertainty as to the rights of unions many employers unnecessarily give to unions rights that they are not legally required to give them. Just as often employers lose out because they fail to accord to unions rights that have been conferred by law.
The Labour Relations Act (LRA) gives employees the right, under certain circumstances, to elect union representatives (shop stewards) who will have the rights to:
• Assist employees in disciplinary and grievance hearings.
• 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.
Many managers see shop stewards as invaders trying to ruin or take control of the business. Such managers then plot to get even with or get rid of the shop stewards. Such an approach is clearly counter productive because it is very likely to cause industrial action.
Instead management needs to:
• Be given a full understanding of what the shop stewards’ rights are and are not.
• Learn to keep their tempers and act rationally in the face of pressure.
• Know when and how to take legitimate action against shop stewards who exceed their powers.
• Be empowered to keep control of the workforce regardless of the presence of shop stewards.
The LRA’s Code Of Good Practice: Dismissal provides broad guidelines to employers on the implementation of dismissals and in particular, of the dismissal of shop stewards. Item 4(2) of the Code states that discipline against a shop steward should not be instituted before the employer has first consulted with the trade union.
In Dunn vs Telkom SA (2003, 11 BALR 261) a shop steward was dismissed for insubordination. The CCMA found that the shop steward had justifiably been found guilty of serious misconduct meriting dismissal. However, the arbitrator found the dismissal to be unfair because the employer had not consulted the applicant’s union before disciplining the shop steward.
However, in an unreported CCMA case, in which the author was involved, the chief shop steward was dismissed for misconduct related to his duties as a shop steward. Despite this the CCMA found that the dismissal was fair in all respects. This was because the employer was able to convince the CCMA arbitrator that the shop steward’s status as a union representative did not exempt him from adhering to the employer’s rules. [NUMSA obo Mahlangu vs Hernic Ferrochrome (Pty) Ltd case number NW2126-01]
While this case shows that a shop steward can be dismissed for misconduct the employer has to be extremely careful as regards the circumstances of the misconduct and the process used to implement the discipline. Because the dividing line between acceptable and unacceptable discipline of shop stewards is so thin no employer should implement such discipline without the full involvement of a reputable labour law expert.
To access our free labour law expert debate page please go to http://labourlawadvice.co.za/, click on the Labour Law Debate tab on the home page and subscribe by clicking on “Register here”. For enquiries please contact Ivan Israelstam via firstname.lastname@example.org or 011-8887944.