14/06/2017
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.’