The position of a shop steward in the workplace is an ambiguous one: on the hand, they are, just like any other employee, subject to their employers’ disciplinary processes, and on the other hand, they function as intermediaries between employers and union members. Shop stewards assist union members in various aspects of the workplace, including representation in disciplinary hearings and grievance procedures, negotiate on their behalf and serve on various committees aimed at furthering employee benefits, for example, a health and safety committee.

The various duties performed by shop stewards and the perception that employers may have of these duties can spark controversy when disciplinary action is taken against the shop steward.

It should be stressed that the shop steward is first and foremost an employee, and just like other employees, is obliged to serve their employer, protect the interests of their employer, and obey their employer’s reasonable and lawful instructions. However, a shop steward who performs his union duties over-zealously, may do so at the expense of his employer’s interests and may be subjected to disciplinary action.

Currently, there is no statutory framework designed to protect shop stewards. The Code of Good conduct – dismissals, does provide, that employers should consult with trade unions prior to instituting disciplinary processes against the shop steward, however, failure to do so will not necessarily render the process unfair.

The following principles should be considered when acting against a shop steward:

  • Victimisation of a shop steward for performing his duties in terms of legislation or a collective agreement is prohibited – when exercising their functions as a shop steward, employees should be treated differently from ordinary employees.
  • Shop stewards cannot claim special privileges when it comes to disciplinary action arising out of their roles as employees – they are subject to the same standards as other employees.
  • Employers should act with a measure of restraint when dealing with shop stewards – the shop steward is often simply communicating the will of the workers, and they themselves may have a different view on the issue.
  • A good employee does not necessarily become a bad employee because of him being elected as a shop steward – shop stewards are often elected to that position in terms of the union’s internal process.
  • Shop stewards are almost exclusively recognised in workplaces where a majority of employees are members of the union. It is advisable that employers attempt to foster good relationships with shop stewards, which will result in better employer-employee relationships

Although it is difficult to draw an exact line between reasonable and unreasonable conduct on the part of a shop steward exercising his duties, the courts have frequently come to the rescue of a dismissed shop steward.

In FAWU v Harvestime Corporation, the court commented:
“An employee, when he approaches or negotiates with a senior official or management, in his capacity as shop steward, does so virtually on an equal level with such senior official or management, and the ordinary rules applicable to the employer-employee relationship are then somewhat relaxed.”

In SACTWU v Ninian and Lester (Pty) Ltd, the court offered the following advice: “Sound and healthy labour relations are built up by reasonableness, fairness and the ability to negotiate – not by militancy, belligerence, obstinacy and the refusal to consider a point of view other than your own”

The test, it would appear, is to ask whether the shop steward’s conduct falls within the realms of fair bargaining tactics and whether it relates to the performance expected from a shop steward. If their behaviour does not satisfy this test and the employer institutes disciplinary procedures against the shop steward, the shop steward cannot claim any privileges attached to this position.

Should you require further information on the rights and responsibilities of shop stewards, you can call any of our offices and speak to one of our officials.

 

Article by: Stephen Kirsten

Provincial Manager – Cape Town