Trade union activities and dismissal

Freedom of association is not news, of course — it has become an important foundation of our law even since the interim Constitution of 1993. Now this fundamental right is in the final Constitution of 1996 and the Labour Relations Act of 1995. No-one would argue that an employee has the right to form or join a union or to participate in the lawful activities of a union.

But the fact that the existence of this right is now taken for granted does not necessarily resolve all the problems that may arise in the workplace — issues that arise because an employee is active in a trade union, sometimes with such enthusiasm that he or she may become a thorn in the side of the employer and the employer’s management.

Allegiances and divided loyalties

Trade union representatives (shop stewards) are perhaps the best example of an employee having divided loyalties. On the one hand, as an employee, he or she remains subject to the employer’s right of control and his or her own subordinate position. Clearly, when an employee swops hats to represent a fellow worker in a disciplinary hearing, a certain degree of conflict will arise. But should the shop steward go too far, he or she may find himself (or herself) disciplined as well. The fact that a shop steward is exercising his or her duties does not offer absolute protection against misconduct charges or dismissal.

A dismissal for any reason relating to the employee’s activities as a shop steward may constitute an automatically unfair dismissal. In CEPPWAWU & Another v Glass & Aluminium 2000 CC (2002) 11 LAC 6.13.1 the Labour Appeal Court held that the resignation of a shop steward constituted a constructive dismissal (the shop steward had resigned after an argument with the employer). The Court also found that the reason for the dismissal related to the employee’s exercising his functions as shop steward — for this reason the dismissal was found to be automatically unfair in terms of section 187 of the Labour Relations Act of 1995.

Managers are also entitled to participate in union activities. In the case of senior managers being or becoming shop stewards, however, there may be a considerable conflict of interest as the manager may know something about the organisation’s bargaining approach (by virtue of his being a manager) — and wanting, perhaps, to use that information to promote the position of the trade union. For some time, employers took the view that getting around this entailed formulating a rule that prohibited senior managers from joining or participating in a trade union’s activities. Again, the conflict here is between the senior manager’s freedom of association and the employer’s rights: to expect loyalty and dedication from its senior managers and the right to have its confidential information kept confidential.

Naturally, the employer can approach the union and request the union to appoint another shop steward and to solve the problem this way. But again, dismissal is not an option — at least, not a dismissal in respect of the employee’s union activities. Nor can the employer refuse to promote an employee if that employee is engaged in union activities. These employer actions would constitute victimisation on the basis of the employee’s union membership or activities and the employee would have rights not only in respect of a possible automatically unfair dismissal, but also in terms of section 9 of the Labour Relations Act.

But nothing prevents the employer from dismissing an employee for misconduct or incapacity in cases such as these. If the senior manager, for example, discloses confidential information to the trade union, knowing that this information was sensitive, confidential and that the disclosure could harm the employer, the senior manager could be charged with misconduct. If the senior manager refuses to do certain things because it would conflict with his role as a shop steward, the manager may face charges of insubordination. If the manager is incapable of doing certain things because of his union engagement, there is also the possibility of dismissal for incapacity. The leading decision in this regard is IMATU & Others v Rustenburg Transitional Council (2002) 11 LC 12.2.1.

A disruptive employee or an engaged employee?

A recent important decision in this context is the Labour Appeal Court decision in Kroukam v SA Airlink (Pty) Ltd (2005) 14 LAC 1.11.21The employee was a pilot and was dismissed for misconduct after being found guilty on charges of insubordination and being a disruptive influence in the operations of the company. But at the time of his dismissal he was also chairperson of the union — the Airlines Pilots Association. His contention was that he had been dismissed because of his union activities. Two opposing versions, therefore: the employer’s argument being that the dismissal was for misconduct unrelated to the employee’s union activities; the employee arguing that the dismissal was the result of his union engagement.

As can be expected in cases such as these, the evidence is everything. One of the disciplinary charges related to the fact that the employee had failed to meet a performance target (950 hours flown in a 12 month period). But as it turned out, other pilots had also flown less than 950 hours and they were not charged with misconduct. Other important facts were that the employee had played an active role in representing the interests of the union, other employees, and in litigation the union brought against the employer (contempt of court proceedings).

In answering the question as to the real reason for the employee’s dismissal, the Labour Appeal Court engages in a detailed analysis of events and statements. This is instructive reading in itself. The Labour Appeal Court confirmed that there are cases where the employer could charge the employee with misconduct and that this could lead to a dismissal — in spite of the employee’s union engagement. A court should, however, be cautious in coming to the conclusion that the real reason for the dismissal was the employee’s union engagement:

“In my view a court should be slow to infer that the reason why an employer has brought disciplinary charges against an employee or the reason why an employer has dismissed an employee is or are illegitimate reason(s) such as union activities unless there is sufficient evidence to justify such a conclusion. A court should be even slower to come to that conclusion in a case where it does seem that the employer may have had a basis to bring disciplinary charges against an employee even if the court would not have done the same had it been in the employer's shoes. Obviously, in a case where a proper basis exists for a court to make such an inference, the court should not hesitate to make it.” (at [86] of the judgment)

But if the evidence is there, there can be no doubt that the employee’s dismissal will fall into the category of automatically unfair dismissals. On the basis of the evidence presented, the Labour Appeal Court concluded that the “principal or dominant reason” for the employee’s dismissal was the fact that the employer was not happy with the role the employee was playing in representing the interests of the union and its members. Naturally, the employer was also not happy with the role the employee had played in bringing legal action against the employer. There were also occasions when the employee swore or used strong language in speaking to other managers — naturally, this irritated, exasperated or even angered some managers. They could, in other words, not wait to see the departure of this disruptive employee.

The Labour Appeal Court formulated some of the legal and policy principles as follows:

“In my view it would undermine the protection that the Constitution and the Act seek to confer on union officials or representatives and employees against victimization for the exercise of their constitutional and statutory rights to accept a proposition the effect of which would be that an employer may destroy a trust relationship by victimizing an employee and then benefit from such illegitimate and unlawful conduct. The proposition that even if the court concluded that the employee was indeed dismissed for an illegitimate and unlawful or unconstitutional reason, he must still lose his job because the illegitimate conduct of the employer has destroyed such trust relationship is, in my view, unacceptable as a matter of policy. An employer who acts in breach of such fundamental rights must, as a matter of policy, not be allowed to benefit from his unacceptable conduct. An approach of a court which allows such conduct to prevail may itself be in conflict with some of the values and principles which make up the foundation of our post-apartheid society.” (at [94])

Part of the fault, it seems, lay with the inability of the managers to deal with the issues. In doing his job as a union representative, the employee was challenging the decisions of management; something the managers no doubt found unacceptable. But, said the Court, if the managers could not deal with a union official who challenged their decisions, they needed help. Perhaps the employer should have brought in advisors to help its managers deal with difficult and challenging union officials. Perhaps the employer should consider getting managers who have the experience, skill and expertise to handle union officials.

Naturally, the union and its members will have certain expectations of its representatives. The union and members will constantly be evaluating whether a certain representative is suitable to represent their interests. As long as the union and members believe that a particular official is doing his or her job as union representative well, it is not up to the employer to force a change of union representative by dismissing those whose style and approach cause some discomfort or inconvenience.

Between a rock and a hard place

In various situations an employee who is active in his or her union, be it as a shop steward or some other capacity, will find himself or herself in a conflict of interests. On the one hand, there are his obligations as an employee — in the antiquated language of the common law, to serve the interests of the employer. On the other hand, that person is also expected to do his job as a trade union representative: challenging management, representing other workers in disciplinary and grievance hearings and perhaps even sitting on the other side of the table for the purposes of collective bargaining. Some people may thrive on navigating the narrow and treacherous passage between the rock and the hard place; but many would prefer to stay out of these choppy seas altogether.