# Regulatory Compliance Category > Labour Relations and Legislation Forum > [Article] SA Labour - Managers as shop stewards

## BBBEE_CompSpec

Sanlam Financial Services - Thinking ahead in financial services

So often good labour relations all of a sudden turn sour when bosses discover that the shop-steward sitting at the opposite side of the table is also a member of the companyâs management

team. Generally, the immediate reaction is that such a manager cannot be trusted. Of immediate concern would be that the manager would have access to confidential company information, that they would find it difficult to initiate or conduct disciplinary hearings against employees, and that their loyalty to the union would prevent them from fulfilling the essential tasks required of them.

Section 23(2) of the Constitution of the Republic of South Africa, 1996 ("the Constitution") provides that every worker has the right to form and join a trade union and to participate in the activities and programmes of that trade union, such as performing the duties of a shop-steward.

Likewise section 4(2) of the LRA gives trade union members a right to stand for election and to be eligible for appointment as an office-bearer or official and, if elected or appointed, to hold office of that trade union. Further, section 5(1) of the LRA in turn provides that "no person may discriminate against an employee for exercising any rights conferred by this Act".

Section 5 of the LRA also prohibits an employer from preventing an employee from becoming a member of a trade union and precludes an employer from acting to the detriment of an employee "because of past, present or anticipated. . . membership of a trade union" or participation in its activities.

For employers this is difficult to accept. As a result managers holding union office are frequently being pressed to make a choice between their union allegiance and their managerial responsibilities.  In a recent matter between Food & Allied Workers Union & another v The Cold Chain the Labour Court decided on such a matter, which is of interest.

In this case, the employee a shop-steward and union office-bearer had been offered a higher grade position as an alternative to retrenchment. The company made it clear to him that if he accepted such a position it would place him in a managerial position and therefore he would have to relinquish his union position as a shop-steward.

The following was stated in the company letter; âyou will accordingly be required to step down from your duties as senior shop-steward for the Cape Town distribution centre and you will be required to relinquish your FAWU office-bearer duties and responsibilities, immediately upon assuming your new responsibilities with effect from 1 May 2006."

After accepting the higher position the employee refused to resign as a shop-steward. As a result the company then proceeded with retrenching him for not complying with the condition to resign as a shop-steward. The employee then lodged his claim with the Labour Court contending that his dismissal was automatically unfair.

In considering the matter the Judge referred to another matter of IMATU & others v Rustenburg Transitional Council in which the Judge at length considered a similar issue and had the following to say:

". . . The protections conferred by the organisational rights clauses give employees, whatever their status, the absolute right to join trade unions and take part in their activities. By so doing, they legitimise acts that might otherwise constitute a breach of the employee's duty of fidelity, prohibit victimisation and outlaw rules of the sort that the respondent laid down in the present case. Beyond that, they do nothing to exempt employees from their duties under the contract. The employee must still do the work for which he is engaged and observe the secondary duties by which he is bound under the contract. If he does not, he can be disciplined for misconduct or laid off for incapacity."

In considering the above the Judge in this matter held the view that as employees have an absolute right to be a trade union member and participate in its lawful activities irrespective of their seniority, that it will in the first instance be unlawful for an employer to deny an employee promotion into those senior ranks unless he refuses to relinquish his shop-steward and/or office-bearer duties and responsibilities. Secondly, if any employee for that matter fails to perform his duties as an employee in any respect whatsoever, he needs to be dealt with in terms of the clear and accepted principles applying to employees who fail to perform.

In conclusion the court found that the employer breached the employeeâs (managerâs) rights in terms of the LRA and that it acted unlawfully in demanding that the manager abandon his rights to participate in lawful union activities. As the dismissal of the employee (manager) was solely premised on compliance with the unlawful demand it was found that the dismissal was unlawful and unfair and that it discriminated against the employee on the grounds of his union affiliation.

Accordingly the dismissal was automatically unfair and in breach of the LRA. The employer was ordered to pay the employee the equivalent of nine months' remuneration and was also ordered to pay the employeeâs costs.

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## Marq

Ra Ra... and now the workers still wonder why they cannot get into management positions, promoted or why the AA quotas are not being met. You cannot bat for both teams. This scenario just makes a mockery of union/employer relationships. This last case also shows that an employer should not get any empathy going for their staff. Its sorry for you rather than a sorry feeling. Standard world practice these days is to bite the hand that feeds you. Its a sad state of affairs for human kind.

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BBBEE_CompSpec (01-Dec-09)

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## Dave A

Companies, of course, have no absolute rights  :Roll Eyes (Sarcastic): 

How does this ruling solve this problem?



> Generally, the immediate reaction is that such a manager cannot be trusted. Of immediate concern would be that the manager would have access to confidential company information, that they would find it difficult to initiate or conduct disciplinary hearings against employees, and that their loyalty to the union would prevent them from fulfilling the essential tasks required of them.


Or does the problem simply not arise?

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BBBEE_CompSpec (01-Dec-09)

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