Can union shop stewards be disciplined for misconduct they committed while performing their duties as workers’ representatives?
By Magate Phala
Section 14 (4) of the Labour Relations Act, 66 of 1995, provides that a trade union representative has the right to perform the following functions at the request of an employee in the workplace:
(a) to assist and represent the employee in grievance and disciplinary proceedings,
(b) to monitor the employer’s compliance with the workplace-related provisions of this Act, any law regulating the terms and conditions of employment and any collective agreement binding on the employer,
(c) to report any alleged contravention of the workplace-related provisions of this Act, any law regulating to the terms and conditions of employment and any collective agreement binding on the employer to the employer, the representative trade union and any responsible authority or agency.
The trade union representative may also perform any other function agreed to between the representative trade union and the employer.
Item 4(2) of Schedule 8 of the Labour Relations Act, 66 of 1995, as amended also provides that discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union.
In National Union of Mineworkers and Others v Black Mountain Mining (Pty) Ltd  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  and ):
“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 licence; 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.
In SACTWU & Another v Ninian & Lester (Pty) Ltd (1995) 16 ILJ 1041(LAC), the LAC, for example, rejected a shop steward’s plea that she had been unfairly selected for dismissal after she had led a walk out of the workstation. The LAC held that her conduct was not “collective” as she claimed and also took into account that her employment record demonstrated “an attitude of militancy, open defiance and non-co-operation”.
The Court concluded as follows:
“Sound and healthy labour relations are built up by reasonableness, understanding, fairness and the ability to negotiate – not by militancy, belligerence, obstinacy and the refusal to consider a point of view other than yours.”
In Banking Insurance Finance & Allied Workers Union & Another v Mutual & Federal Insurance Co Ltd (2006) 27 ILJ 600 (LAC), the Court was required to consider whether the dismissal of a shop steward was automatically unfair. The shop steward who had represented a fellow employee in disciplinary proceedings and before the CCMA had dishonestly alleged in documents and evidence before the CCMA that the chairperson of the disciplinary proceedings had unreasonably refused the employee’s request for a postponement of his hearing. As a result of this dishonesty the shop steward was dismissed for misconduct.
The Court in dismissing the appeal held that “a shop steward who represents a fellow employee at a disciplinary enquiry or arbitration hearing does so in the capacity of a fellow employee as well and as such owes the employer the duty to act honestly. An employee representing a fellow employee has the right to do so to the best of his or her ability without fear of recrimination or reprisal and this right is not an unbridled licence but is constrained by the duty to do so honestly. The record of the arbitration hearing and the disciplinary enquiry showed clearly that the shop steward did not merely have a momentary lapse of candour but that he was downright devious, unscrupulous and deceitful and the dismissal was upheld”.
Written by Magate Phala, who specialises in Labour Law, and writes in his own private capacity. For more information, kindly contact Magate Phala at firstname.lastname@example.org