“The senior employee who becomes a union leader must, in consequence, tread carefully, especially in his handling of confidential information. It is not enough simply to keep the information secret; he must recuse himself from every discussion within the union to which such information might be relevant either directly or indirectly lest he conveys, merely by his conduct or simply by silence, facts which the employer would prefer the union not to know. “
Introduction
In February 2019 the Zimbabwe media was inundated with a landmark ruling which granted senior managers the right to trade union membership. The matter was decided by the Supreme Court of Zimbabwe and in no doubt changed the concept of trade union membership which many regarded as a right for “junior” employees.
In this article, I will not be discussing the Zimbabwean case. I will discuss the matter between IMATU & Others v Rustenburg Transitional Council which was decided in the South African labour court in 1999. Yes, as far back as 1999 South Africa had such a landmark ruling. I believe that this case is important in broadening our understanding of the right to trade union membership as it applies to senior employees as well as the convolutions that come with such a relationship.
Summary of facts
The employer, in this case, passed a resolution which had the effect of prohibiting the participation of its senior managers in trade union activities as well as serving in executive positions in such unions. The employer contended that its senior managers could not lawfully partake in Trade Union activities as this would be contrary to their duty of fidelity towards the organisation they serve.
Reasons for the Judgement
The court acknowledged that the relationship between a trade union and an employer can be adversarial in nature. Conflict is inevitable. A Union is an organisation meant to further the interests of employees is bound to extract what it can from the employer either through negotiations or were possible using strike action.
An employee can commit a breach of fiduciary duty if he or she works against the interests of the employer. This may happen if the employee in question discloses private and confidential information pertaining to the employer.
The court noted that at common law an employee could be dismissed if he or she joined a union and participated in its lawful activities. Such participation would be deemed to be a breach of fidelity towards the employer. Whilst the common law could justify the dismissal of the employee for breach of fiduciary duty simply by participating in a trade union activity the constitution had amended this position. In terms of the Bill of Rights, the right to join a trade union is unfettered. Neither the drafters of the constitution nor the drafters of the Labour Relations Act intended to limit the right of Senior Employees in joining a trade and in participating in its lawful activities.
Noting that the senior employees can participate in the lawful activities of a trade union the court proceeded to warn such managers. Disclosure of private and confidential information to a Trade Union will constitute a dismissible offence. The court then decisively remarked as follows:
“The senior employee who becomes a union leader must, in consequence, tread carefully, especially in his handling of confidential information. It is not enough simply to keep the information secret; he must recuse himself from every discussion within the union to which such information might be relevant either directly or indirectly lest he convey, merely by his conduct or simply by silence, facts which the employer would prefer the union not to know. He can, I believe, participate in discussions on strategy to which information given to him in confidence is irrelevant, since this is implicit in his right to participate in trade union activities, but he must guard himself even from exercising a judgment on the basis of such information. The delicacy of discretion that this entails makes his position an unenviable one, but the Act gives him the right to enter this minefield if he wishes.”
Court Decision
The court set aside the resolution by the council thus allowing its senior employees to join a trade union of their choice and to participate in its lawful activities.
Own Comment
Senior managers contemplating joining a trade union should take heed of the need to tread with caution as warned by the court. The court did not mince its words. It’s a “minefield”. Balancing the relationship as a trade union official and as a senior manager is complex as noted above. It is thus advisable that senior managers recuse themselves from trade union membership.