CAN AN EMPLOYEE/SHOP STEWARD BE DISMISSED FOR LYING UNDER OATH IN AN ARBITRATION?

YES!

Shop stewards are often called upon to argue a case on behalf of fellow employees/union members and are obviously expected to present a competent defence. They are tasked with defending employees against unfair dismissals and are expected to do their best to ensure that that fellow “comrades” are not dismissed.

As such, they enjoy a certain amount of latitude when engaging with management. Assurances are given that they will not be disciplined for being insubordinate when engaging robustly with management.

Protection from dismissal or victimisation for exercising their rights falls under the LRA (Section 187). Such a dismissal or constructive dismissal would be regarded as automatically unfair and carry a possible award of up to 24 months salary, reinstatement, etc.

The Labour Court held the following in NationalUnion of Mineworkers and Others v Black Mountain Mining (Pty) Ltd [2010] 3 BLLR 281 (LC) at Para 36 …,:

“When shop stewards are dismissed for alleged misconduct committed while performing their duties as shop stewards, the first issue that must be established is whether or not they were, in fact, committing misconduct as employees or whether the alleged misconduct was merely an action ancillary to the duties of a shop steward. Furthermore, where it is established that the shop steward was indeed committing misconduct in relation to his duties as a shop steward, the limits of the immunity from disciplinary action that should be extended to shop stewards must be determined.”

But, how far can a shop steward go when defending an employee?

Is a shop steward immune from any disciplinary action if he or she lies under oath as a witness against the company? Can a shop steward lie to protect an employee from being dismissed?

The Labour Appeal Court in BIFAWU & Another v Mutual & Federal Insurance Co Ltd (2006) 27 ILJ 600 had to wrestle with this very question when a shop steward was dismissed for lying under oath in an arbitration. The LAC held as follows:

“That an employee, even when he or she is representing a fellow employee at a disciplinary enquiry or arbitration hearing, owes certain duties to an employer cannot be doubted. Among these is the duty to act honestly. … After all, when an employee represents a fellow employee at a disciplinary enquiry or arbitration hearing, he or she does so precisely in that capacity of being a fellow employee. The fellowship does not transubstantiate the continuing employment relationship between the employer and the representing employee. … the right and duty to represent a fellow employee to the best of one’s ability is not an unbridled licence; it is constrained by the duty to do so honestly. Without honesty on the part of the representatives of the parties, the system would be unviable.”

A shop steward or employee representative cannot expect to be immune from disciplinary action for blatantly lying to protect an employee.

The LAC has made this very clear. Although a shop steward has the latitude to robustly engage management on behalf of fellow members, he or she is still an employee. This person is still expected to act with honesty and integrity and abide by company rules and regulations.

The courts have confirmed that the primary relationship between a shop steward and employer is still that of subordination. Although a shop steward has certain rights, these must be exercised with restraint and integrity.

For more information contact GEO on 0861 436 436

Regards

Andre Rabe

GEO Chairman