3 June 2022
In this section, we will deal with the disciplining of a shop steward and the procedural aspects prior to disciplining a shop steward.
It is very important to remember that although shop stewards are just like any other employee in terms of disciplinary processes to be followed for misconduct, shop stewards are still the link between employers and union members. Shop stewards assist union members within the workplace with regard to inquiries, grievance procedures, compliance, as well as negotiations. Evidently and regardless of the aforesaid, the shop steward is still an employee and therefore is required to protect the interests of the employer over and above all other duties.
It is important to remember that there is no statutory framework in place to protect shop stewards against disciplinary action. The Code of Good Practice Schedule 8 only provides that the trade union should be informed and consulted prior to conducting disciplinary processes against the shop steward.
A few points to remember when taking action against a shop steward:
- One cannot victimize against the shop steward for performing his duties in accordance with a collective agreement or legislation.
- When conducting disciplinary action against a shop steward, one should remember that they are subject to the same standards as other employees.
- Employers should consider that most of the time, shop stewards simply act on behalf of the workers and therefore might have a different view.
In National Union of Mineworkers and Others v Black Mountain Mining (Pty) Ltd [2010] 3 BLLR 281 (LC) at Para 36 …, the court held that:
“When shop stewards are dismissed for alleged misconduct committed while performing their duties as shop stewards, the first issue that must be established is whether or not they were, in fact, committing misconduct as employees or whether the alleged misconduct was merely an action ancillary to the duties of a shop steward. Furthermore, where it is established that the shop steward was indeed committing misconduct in relation to his duties as a shop steward, the limits of the immunity from disciplinary action that should be extended to shop stewards must be determined.”
In BIFAWU & Another v Mutual & Federal Insurance Co Ltd (2006) 27 ILJ 600 (LAC), the LAC held as follows… (At paragraphs [19] and [21]):
“That an employee, even when he or she is representing a fellow employee at a disciplinary enquiry or arbitration hearing, owes certain duties to an employer cannot be doubted. Among these is the duty to act honestly. … After all, when an employee represents a fellow employee at a disciplinary enquiry or arbitration hearing, he or she does so precisely in that capacity of being a fellow employee. The fellowship does not transubstantiate the continuing employment relationship between the employer and the representing employee.
… the right and duty to represent a fellow employee to the best of one’s ability is not an unbridled license; it is constrained by the duty to do so honestly. Without honesty on the part of the representatives of the parties, the system would be unviable.”
In Mondi Paper Co Ltd v PPWAWU & Another (1994) 15 ILJ 778 (LAC), the Court acknowledged that a shop steward has a particular role to play. The LAC also acknowledged that this is not a license for unruly behaviour. In this particular case, the shop steward was dismissed for deliberately disrupting a meeting with management. The Court held as follows: “No doubt a shop steward should fearlessly pursue the interests of the members he represents, and he ought to be protected against being victimized for doing so. However, this is no license to resort to defiance and needless confrontation. I do not agree with the view of the court a quo that the fact that he is acting in his capacity as a shop steward serves to ‘mitigate’ conduct which objectively is unacceptable. Notwithstanding the position to which he has been elected, a shop steward remains an employee, from whom his employer is entitled to expect conduct that is appropriate to that relationship.
It is important that employers are aware that shop stewards are not above the law and that at their core, they are still employees of the company and need to follow the policies and procedures the company sets out. It is best to have a guiding hand to assist you in dealing with the various complexities in the field of labour law. Our team of experts are here to assist you with best practice solutions. Contact Invictus Group on 0861 737 263 for us to assist you.
