Item 4(2) of the Labour Relations Act’s Code Of Good Practice: Dismissal states:
“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.”
It is envisioned that the consultations that take place are intended for the parties to explore ways of resolving the problem without resorting to discipline, the purpose of which 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, guidance given by the Code needs to be balanced against the underlying principle that the shop steward is an employee, just like any other and as such is subject to the same rules and regulations as fellow employee. Being nominated as a shop steward does not afford an employee any special rights. Of course, taking up the office of a shop steward does come with added responsibilities and the courts have shared their view that the added responsibilities that a shop steward bears may well play a role in disciplinary action that is taken against him or her. For example, in Workplace Law, 11th Ed., Juta, Cape Town, author John Grogan points out that in NUMSA on behalf of Muroa and van der Wetering (Pty) Ltd t/a Afrit (2011) 32 ILJ 1000 (BCA), the court found that shop stewards should be granted more latitude when they are acting in their capacity as shop stewards (in this case a shop steward had told a manager to “shut up” during a disciplinary hearing).
Despite the above, shop stewards are nevertheless contractually bound to obey the rules that apply in the workplace and therefore are subject to disciplinary action. Should you suspect a shop steward of having committed misconduct, the steps to follow are:
- Conduct a thorough investigation to collect the evidence needed to prove that the shop steward is guilty of the offence. It is not in your interests to consult with the trade union and when doing so it becomes apparent that there is insufficient evidence to take action against him or her. This will inevitably lead to allegations of victimisation and will strain the relationship with the union.
- Contact the trade union and invite them to a consultation. State what has occurred and that management is contemplating taking disciplinary action as a result and would like to consult in terms of Item 4(2) of Schedule 8. Stipulate a date and time for the meeting to take place, to avoid any unnecessary back-and-forth about dates.
- Meet with the trade union and explain to them what has happened. Show them the evidence that you have collected to corroborate your claims and invite them to comment.
- If an amicable alternative solution can be reached, then you may implement the solution, but be sure to guard against setting any precedent in this regard. Just because you are willing to compromise in the interests of avoiding industrial unrest doesn’t mean that any employee who commits the same misconduct in the future will be treated in the same way (or if the same employee repeat the misconduct, for that matter). Draft a simple agreement to this extent and have the parties sign it.
- If no agreement can be reached between the parties as to an alternative course of action to take, then you may proceed with the contemplated disciplinary action and issue the warning or the notice to attend a disciplinary enquiry to the shop steward.
- Be sure to minute the meeting between management and the trade union.