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Labour Relations Act, 1995 (Act No. 66 of 1995)

Commission for Conciliation, Mediation and Arbitration

Guidelines on Misconduct Arbitration

D: How to Approach Procedural Fairness

Disciplinary action against a trade union representative

 

 

(72) If an employer intends to take disciplinary action against an employee who is a trade union representative or an office bearer or official of a trade union, the Code of Good Practice requires the employer to inform and consult with the union before doing so. Because the dismissal of a trade union representative may be perceived as an attack on the trade union, the object of the consultation is to advise and communicate with the union that the disciplinary action is not motivated by a desire to victimise and to deal with the possible impact of the disciplinary action on the ongoing relationship between the employer and the trade union. If there is no agreed procedure, a procedure should be adopted that employees and the trade union will perceive as fair and objective.

 

(73) The norm applies to trade union representatives and office bearers or officials of a trade union only if the trade union is "recognised" in the sense that it has been granted the relevant organisational rights. The LRA defines a trade union representative (commonly referred to as a "shop steward") as a member of a trade union who is elected to represent employees in a workplace. A trade union representative appointed by an unrecognised trade union or one who is not elected to represent employees in the workplace is not a trade union representative for the purposes of the LRA. Accordingly it is not a departure from the norm not to inform and consult in these circumstances.21

 

(74) A departure from this requirement may be justified if the trade union and the trade union representative are not prejudiced by the failure to inform and consult and the employer has good reason not to do so.22

 

 

21 BIAWU & another v Mutual & Federal Insurance Co Ltd (LC) p 1043 G-J.
22 Although NCBAWU v Masinga & others (LC) refers only to prejudice, the Code also requires a justification for doing so. The decision does not prevent arbitrators from applying both factors, namely prejudice and justification. In any event, even if there is no justification, the arbitrator retains a discretion in respect of remedy.