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The dismissal of shop stewards


A shop steward is a representative of the union whose members he represents. He is also an employee of the company whose employees he represents. 

By: P.A.K le Roux

As an employee, a shop steward is subject to the normal rules regulating conduct in the workplace. But what is his position when he is performing his duties as a shop steward?Does this relieve him of his obligation to comply with these rules and, if so, when and to what extent? When will he be acting as a shop steward?

These are questions dealt with in the as yet unreported decision of the Labour Appeal Court (LAC) in National Union of Metalworkers of South Africa obo Motloba v Johnson Controls Automotive SA (Pty) Ltd and others (PA 6/15 3/3/2017).

The shop steward in this case, Mr Motloba, was employed by Johnson Controls Automotive SA (Pty) Ltd (Johnson Controls). On 23 June 2014 he approached the payroll administrators of Johnson Controls with a grievance concerning the payment for work performed by employees working night shift on a public holiday. The question was whether the employees were being paid in accordance with provisions of the relevant collective agreement concluded in the bargaining council within whose jurisdiction Johnson Controls fell. The regional payroll manager, a Ms Bezuidenhout, told Motloba that payment would be made in accordance with Johnson Controls’ understanding of what the collective agreement provided for. They agreed to disagree on this issue and the meeting ended amicably.

The next day Motloba was accused by a group of workers of having agreed with Johnson Controls’ interpretation of the collective agreement. Mr Motloba, together with a group of workers, then approached Bezuidenhout.

Precisely what occurred at that meeting is the subject of dispute. Johnson Controls’ version of events was that Motloba accosted Bezuidenhout and in a loud and aggressive tone made the following statement –

‘Don’t lie to my people that I agreed to how they would be paid’

It was also Johnson Controls’ version that Motloba came very close to Bezuidenhout, waived his finger in front of her and then poked her with his finger on her chest. These actions resulted in Motlaba being charged with three disciplinary offences. These were: a physical and verbal assault on Bezuidenhout, serious disrespect and/or insolence towards Bezuidenhout and threatening and/or intimidating behaviour towards Bezuidenhout. He was found guilty and dismissed. He then referred an unfair dismissal dispute to the CCMA.

The arbitrator found that Motloba was not guilty of any of the charges. This finding was primarily based on his assessment of the evidence. However, of importance for the purposes of this contribution was his finding with regard to the charge of disrespect or insolence. He found that Motloba had approached Bezuidenhout in his capacity as shop steward and that the principle formulated by the old Industrial Court in Food and Allied Workers Union v Harvestime Corporation (Pty) Ltd (1989) 10 ILJ 497 (IC) applied. The arbitrator relied on the following passage from the judgment -

‘(A)n employee, when he approaches or negotiates with a senior official or management, in his capacity as shop steward, does so on virtually an equal level with such senior official or management and the ordinary rules applicable to the normal employer-employee relationship are then somewhat relaxed.’

The above notwithstanding, the arbitrator did not reinstate Motloba because he regarded this as impracticable. Bezuidenhout was the payroll manager and he would have to interact with her. Johnson Controls was ordered to pay Motloba compensation equal to 12 months’ remuneration.

Motloba then instituted review proceedings and argued that the arbitrator had erred in not reinstating him. Johnson Controls launched a cross-review and argued that the arbitrator had erred in finding that the dismissal had been substantively unfair. The Court assessed the evidence put before the arbitrator and found that he had failed to assess the evidence of the witnesses, including the probabilities relating to what occurred, and that the award was reviewable on this basis. The Court also found that the arbitrator had erred in applying the ‘anything goes’ approach suggested in the Harvestime decision and had committed a gross irregularity by doing so. It set aside the award and substituted it with a finding that the dismissal had been substantively and procedurally fair. This meant that it was unnecessary to deal with Motloba’s review application. Motloba then appealed to the LAC.

The LAC upheld the Labour Court’s decision and dismissed the appeal. During the course of the judgment it also rejected the ‘anything goes’ approach. It was of the view that, when the incident occurred, Motloba was not acting in his capacity as shop steward. But even if this was the case, he was still guilty of misconduct. The following passage from the judgment is important –

‘[48] The principle formulated in the considerable body of authority both in the Labour Court and in this Court is that a shop steward should fearlessly pursue the interest of his/her constituency and ought to be protected against any form of victimisation for doing so. However, this is no licence to resort to defiance and needless confrontation. A shop steward remains an employee, from whom his employer is entitled to expect conduct that is appropriate to that relationship. The fact that the bargaining meetings often degenerate does not mean that one should jettison the principle that, as in the workplace also, at the negotiations table the employer and the employee should treat each other with the respect they both deserve. Assaults and threats thereof are not conducive to harmony or to productive negotiation. It is unacceptable to hold that when one acts in a representative capacity “anything goes”. [49] In my view, the incident complained of in this case did not arise during the course of the negotiations or within the context of the collective bargaining process. It simply erupted out of the accusations levelled against Mr Motloba by his constituency that he agreed with Johnson Control’s interpretation of the collective agreement. I am of the view that the arbitrator misconceived the nature of the enquiry he was enjoined to undertake in holding that the heated exchange was in relation to an issue of relevance to industrial relations and that Mr Motloba approached Ms Bezuidenhout in his capacity as a shop steward. Even assuming that the heated exchange was in the course of negotiations Mr Motloba’s conduct flies in the face of the ample authority referred to in the preceding paragraph. A vociferous and determined shop-steward should act in the best interest of his/her constituency and not in a manner that is improper and unbefitting of the office he/she holds. Reliance by arbitrator on Harvestime Corporation in this matrix was plainly wrong and had been correctly found by the Court a quo as amounting to a gross irregularity.’