There are numerous circumstances where a shop steward’s activities have drawn a retail manager into assaulting, threatening or otherwise ill-treating the shop steward.

In CEPPWAWU & Another vs Glass & Aluminium 2000cc (2002, 5BLLR 399 the Labour Appeal Court found that the resignation of a shop steward had been provoked unfairly by the employer. The resignation occurred after an altercation related to the employee’s a shop steward duties. The court found the dismissal to be automatically unfair.

The additional danger is that, if the union members get to hear of ill-treatment of a shop steward a wildcat strike could start without warning.

On the other extreme is the retail manager who is reluctant to take any action against a shop steward for fear of starting a strike or being taken to the CCMA for unfair discipline.

But neither the aggressive nor the hands-off approach is the right one. Instead, retail managers and supervisors need to:

• Be given a full understanding of what the shop stewards’ rights are and where those rights are limited.

• Learn to keep their tempers and act rationally in the face of pressure.

• Know when and how to take legitimate action against shop stewards who exceed their powers.

• Be empowered to keep control of the workforce regardless of the presence of shop stewards.

Retail managers do have the right to discipline shop stewards but this must be done for fair reasons and in a fair manner. Ignoring the legal procedures is extremely dangerous when disciplining any employee, but to do so in the case of a shop steward can cause irreparable damage.

The LRA’s Code Of Good Practice: Dismissal provides broad guidelines to employers on the implementation of dismissals and in particular, of the dismissal of shop stewards. Item 4(2) of the Code states that discipline against a shop steward should not be instituted before the employer has first consulted with the trade union.

It is thus clear that the law sees shop stewards in a different light to other employees. The question is how differently must we treat shop stewards? In the case of Ngubo vs Hermes Laundry Works cc (1990, 11 ILJ 591) the court held that it is counter to sound labour relations to discipline by dismissal a shop steward guilty of an infraction while performing his functions as a shop steward.

In FAWU vs Harvestime Corporation (Pty) Ltd (1989, 19 ILJ 497 a shop steward was dismissed for insubordination perpetrated during wage negotiations. The court stated that an employee who negotiates with management as a shop steward does so “virtually on an equal level” as management and “the normal rules applicable to employer-employee relations are relaxed”. The court therefore found the dismissal to be unfair.

However, in an unreported CCMA case, in which the author was involved, the chief shop steward was dismissed for misconduct related to his duties as a shop steward. Despite this the CCMA found that the dismissal was fair in all respects. This was because the employer was able to convince the CCMA arbitrator that the shop steward’s status as a union representative did not exempt him from adhering to the employer’s rules. [NUMSA obo Mahlangu vs Hernic Ferrochrome (Pty) Ltd case number NW2126-01]

While this case shows that a shop steward can be dismissed for misconduct the employer has to be extremely careful as regards the circumstances of the misconduct and the process used to implement the discipline. Because the dividing line between acceptable and unacceptable discipline of shop stewards is so thin no employer should implement such discipline without the full involvement of a reputable labour law expert.

Written by lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 0828522973 or on e-mail address: labourlaw@absamail.co.za.