Shop stewards and discipline in the workplace

When a shop steward violates workplace rules, it often puts employers in a difficult position. On the one hand, a shop steward has protected rights under labour legislation and on the other hand, they remain employees who are subject to workplace rules and disciplinary standards.

What is a shop steward

A shop steward is usually an employee elected by fellow employees who are also union members to represent them in the workplace. He/She acts as an important liaison for grievances, negotiations and the enforcement of collective agreements.

When can employees officially lay claim to a shop steward

There must be a majority representation of a union’s members in a workplace. The relevant union may therefore only officially select and “appoint” shop stewards for the workplace when they have a majority representation of members in the workplace. Majority representation is usually when the total number of union members is more than 50% +1 of the workforce.

What is a shop steward’s function

Section 14(4) of the Labour Relations Act 66 of 1995 (LRA) states that a shop steward may perform the following functions:

1. To assist and represent a fellow employee in grievance and disciplinary proceedings at the request of that employee.
2. To monitor the employer’s compliance with workplace-related provisions of the LRA, as well as any law regulating terms and conditions of employment and any collective agreement that is binding on the employer.
3. To report any alleged breach of the workplace related provisions in terms of the LRA, or any law regulating terms and conditions of employment, as well as any collective agreement binding on the employer, to:
   • the employer;
   • the representative union; and
   • any responsible authority or agency.
4. To perform any other function agreed upon between the representative trade union and the employer.

Discipline can still be applied

The title ‘shop steward’ does not exempt the employee from the workplace’s rules and disciplinary code. Employers must however be careful and investigate each incident on its own merits.

The recently updated LRA schedule 8, the Code of Good Practice for Dismissal, provides broad guidelines to employers on the implementation of dismissals and, in particular, the dismissal of a shop steward. Item 11(7) of the Code provides that discipline against an employee who is also an official or shop steward of a union must not be imposed until the employer has first notified and discussed it thoroughly with the union.

It is clear that labour law treats shop stewards differently from normal employees in certain circumstances, precisely because of their statutory role and function. A good example of this is during negotiations where the shop steward is on an equal footing with the other parties to the negotiation. The conduct of the shop steward must fall within the limits of fair negotiation tactics and be related to a shop steward’s role and duties. If the conduct does not meet this test, the employer can institute disciplinary action.

The challenge lies in dealing with these violations correctly and fairly without creating the impression of victimisation or unfair labour practices. In such cases, proper consultation with the relevant trade union is not only good practice, but often a necessary step to limit legal risks and protect labour relations.

Employers must therefore be careful not to provoke a shop steward into behaviour during negotiations that leads to the breach of workplace rules, such as where the representative then uses inappropriate language, etc. Our courts have already found that dismissing shop stewards in such circumstances is considered unfair.

While the shop steward is not acting in his/her capacity as such, he/she is treated like any other employee. Managers have the right to discipline a shop steward, but there must be reasonable grounds for doing so and it must be done in a fair manner. It is important to note that even if the shop steward is not acting in his official capacity, a hearing cannot be scheduled for misconduct before the employer has consulted with the union about it.

Procedure that must be followed

When the shop steward violates a rule and a hearing is required, the employer is obliged to notify the union, after which the employer must arrange a consultation with the union to discuss the alleged offence. These consultations must aim to find ways to resolve the problem without applying discipline.

The purpose of this provision is to enable the parties to find a solution that will reduce the likelihood of industrial unrest that could be caused by the dismissal of a shop steward.

No solution, what now?

Although employers must conduct these consultations in advance and in good faith, this does not mean that the employer must accept the union’s proposals to avoid disciplinary action. If the proposals have been investigated and considered and there is still no solution, the employer may proceed to take the necessary disciplinary action against the shop steward, such as scheduling a disciplinary hearing and imposing a fair sanction if the shop steward is found guilty.

Ignoring the legal procedure is extremely dangerous and can pose great risk to the employer, especially in the case of a shop steward.

Contact the LWO for any advice or assistance!

Not an LWO member yet? Take a look at our membership packages.