Can a Union Official represent a Shop Steward during a disciplinary hearing?

It is a common understanding that an employee can be represented during disciplinary proceedings by either a fellow employee or a union representative, which is also provided for in Schedule 8 (4) (2) of the Code of Good Practice.

However, what about union representatives, like a shop steward? Due to their position, does this mean they have a right to be represented by a union official, which is typically an external candidate? What is the legal position in regard to this issue?

In NUM vs Petra Diamonds, the Labour Court was required to determine this very issue and laid down three principles that must be satisfied in this type of application. A union representative of NUM, Maria Mhlanga, was charged to appear before a disciplinary hearing. The disciplinary hearing was postponed a few times due to incidents relating to the chairperson being unavailable on some dates and even due to the employee being hospitalized.

The hearing was eventually rescheduled to commence on the 17th of July 2017. The employee, a union representative, was represented at the disciplinary hearing by Mr. Bongi Zwane, a union official from the union who was not employed by the employer.

The employer objected against Mr. Zwane representing the employee as the employer argued that the company policy explicitly states that:

“ an employee representative “shall be fellow employee, union member or shop steward employed by the company in the workplace or operation where the accused employee works.”

The presiding officer confirmed that the union official does not have locus standi to represent the employee during the disciplinary hearing, not in terms of the company policy, nor in terms of the LRA. The union then brought an urgent application to the Labour Court to interdict the employer in commencing with the disciplinary hearing, seeking relief:

1. To interdict and restrain the employer from barring representation at the disciplinary hearing of Maria Mhlanga by the union’s official or office bearer as the union may assign.

2. Interdicting the presiding officer from presiding on Maria Mhlanga’s disciplinary hearing.

3. Interdicting the employer’s personnel from interfering and influencing whoever presiding person that the employer may appoint thereafter.

The Labour Court provided three grounds that the union will have to establish in this case, being:

1. A clear right to the relief sought.

2. An injury actually committed or reasonably apprehended.

3. Absence of any other satisfactory remedy.

Clear right

The union argued that it has a prima facie right that should be considered as a clear right and relied on the right conferred to it by section 12 – 16 of the Labour Relations Act. The employer argued that the company policy is clear on the matter and that they did not deny the employee any of her rights. The employee can be represented by either a fellow employee or a shop steward.

The Court found that the union failed to demonstrate that it even has a prima facie or a clear right to what it seeks. The Court stated:

“In order to show that the Applicant is entitled to the relief it seeks, it has to show that NUM’s official or office bearer has a clear right to represent Mhlanga at an internal disciplinary enquiry. No averments are made to show that such a clear right indeed exists. Instead, allegations are made relating to the rights NUM enjoys in terms of section 12 – 16 of the Act and no more than vague allegations and unsubstantiated averments are made about the Constitution and a standing practice. “

 The union further placed reliance on Item 4 (2) of Schedule 8 of the Act to support its argument that a representative of a trade union is permitted to be represented at a disciplinary hearing by a union official or office bearer. The Court found:

 “This is indicative of a lack of understanding of Item 4(2) as the wording of the said provision does not support the Applicant’s argument. “

 The Court found that the employer made averments to show that no such right exists as the policy provisions on representation is clear. The Court referred to Ngobeni v Passenger Rail Agency where it was stated:

“In any event, this court does not ordinarily intervene in incomplete disciplinary proceedings. In Booysen v Minister of Safety and Security and others (2011) 32 ILJ 112 (LAC), the LAC made it clear that the Labour Court may only interdict unfair conduct in the course of disciplinary proceedings 'in exceptional circumstances', such as where a grave injustice would result”.

In casu, the Court is of the view that exceptional circumstances did not exist, and no grave injustice would result.

Irreparable harm

The union argued that it would suffer serious prejudice in the volatile labour market should it not be able to enter the premises to serve the employee’s interest. Dissatisfied members easily resign membership if it is perceived that they receive poor service, joining competing unions. The court found that the averments made in support of the harm to be suffered are disconnected from the relief sought. The fact that Zwane personally is not permitted to represent Mhlanga does not take away her right to be represented by a NUM shop steward, nor does it indicate irreparable harm.

Alternative remedy

The union argued that it had no alternative remedy, a position disputed by the employer. The employer submitted that the union has remedies ito section 191 of the LRA should the employee be dismissed or treated unfairly.

The court referred to Jiba vs Minister: Department of Justice and Constitutional Development, where the court held that:

 “Although the court has jurisdiction to entertain an application to intervene in uncompleted disciplinary proceedings, it ought not to do so unless the circumstances are truly exceptional. Urgent applications to review and set aside preliminary rulings made during the course of a disciplinary enquiry or to challenge the validity of the institution of the proceedings ought to be discouraged. These are matters best dealt with in arbitration proceedings consequent on any allegation of unfair dismissal, and if necessary, by this court in review proceedings under s 145.”

The Court stated that it has become increasingly and regrettably populated by applications in which intervention is sought in workplace disciplinary hearings. What the union effectively seeks to do is to bypass the statutory dispute-resolution structures in the form of the CCMA and Bargaining Councils.

What we learn from this case is that employees, subjected to a disciplinary enquiry, does not have an automatic right to be represented by outside union officials. This include circumstances whereby the employee may be a shop steward. If the fairness of the disciplinary process is in dispute the employee should follow the statutory dispute resolution processes established by the LRA.

It is advisable for employers to ask for the assistance of a professional Labour Relations Specialist when facing employment law difficulties. Tobie Nel is the Managing Director for Effectus Harmony (Pty) Ltd and has over 15 years’ experience in Labour Law. You can contact him, by phone: 0824479512, by email: [email protected]

visit: www.effectusharmony.co.za