employment ENSight | 14 November 2018

Can an employer prohibit employees from wearing union T-shirts in the workplace?

by Mosima Ratau

The wearing of trade union T-shirts in the workplace has been a sensitive issue for many South African employers, especially in workplaces where there is inter-union rivalry. The Labour Court has now provided guidance on this issue in the recent decision in NUMSA obo its members in the employ of the Respondent v Transnet

In this matter, Transnet (the employer) implemented a corporate and protective clothing policy in October 2014, prohibiting employees from wearing “political party clothing or non-recognised union regalia” during working hours. One of the unions not recognised by Transnet was the National Union of Metal Workers (“NUMSA”), and as such, while Transnet employees who were members of other recognised trade unions could wear “union regalia” at work, NUMSA affiliated employees could not do so. 

In October 2014, Transnet extended the prohibition to the wearing of “clothing or any regalia of any sort of any political party or trade union” (regardless of whether the trade union was recognised for collective bargaining purposes or not) during working hours, with effect from 1 June 2015. 

NUMSA, a union that had members in the Transnet workplace, launched proceedings in the Labour Court in which it challenged the lawfulness of the policy, at least insofar as it related to the wearing of T-shirts. This was on the basis that the policy infringed on:

  • the right of freedom of expression afforded by section 16 of the Constitution;
  • the labour relations rights established by section 23(2)(a) and (b) and (4)(a) and (b) of the Constitution and section 4(1)(b) and 4(2)(a) of the Labour Relations Act, 1995 (the “LRA”);
  • the right of freedom of association afforded by section 18 of the Constitution;
  • the prohibition of unfair discrimination in terms of section 5(1) and section 5(2)(c)(i), (iii), (iv), (v) and (vi) of the LRA;
  • the prohibition of unfair discrimination in terms of section 6(1) of the Employment Equity Act, 1998 (the “EEA”) on the grounds of conscience, belief, political opinion, the arbitrary grounds of union membership and minority trade union membership and unreasonableness.

The Labour Court commenced its consideration of these claims by referring to the constitutional principle of “subsidiarity”. This principle provides that if legislation has been passed to give effect to a constitutional right, an applicant seeking to enforce that constitutional right cannot “bypass” that legislation and rely directly on the provisions of the Constitution. It must rely on the provisions of the legislation to enforce that right. In this case, the LRA and the EEA had been enacted to give effect to the constitutional rights that NUMSA sought to rely on as reflected in the first three bullet points above. NUMSA could therefore not rely directly on the Constitution and had to seek a remedy in the LRA or the EEA. NUMSA had perhaps anticipated this approach and had sought to rely on various provisions of the LRA and the EEA, namely sections 4 and 5 of the LRA and section 6 of the EEA. 

The Labour Court then went on to consider a claim in terms of sections 4 and 5 of the LRA. In the end, it based its decision on section 5(2)(c)(iii) and section 5(2)(c)(vi) of the LRA. The former provides that no person may prejudice an employee or a person seeking employment because of that person’s participation in the lawful activities of a trade union. In this case, the wearing of the T-shirts were lawful activities in that they were encompassed in the right to freedom of association and the right to organise, both of which are protected by section 4 of the LRA, The second section provides that no person may prejudice an employee or a person seeking employment because that person exercised any right conferred by the LRA. As such, the wearing of the T-shirt was an “associative act” protected by the LRA. 

Its conclusion was as follows:

“[29] In those circumstances, and having regard to the interpretation of s 5(2)(c)(iii) adopted by the Constitutional Labour Court, in my view, the wearing of union t-shirts constitutes a lawful activity as contemplated by s 5(2)(c)(iii). The imposition of the union t-shirt ban, with its underlying threat of disciplinary action for an infringement of the band, constitutes a form of prejudice proscribed by that provision. In short, the t-shirt ban is unlawful and invalid with reference to s 5(2)(c)(iii).

[30] To the extent that s 5(2)(c)(vi) proscribes an employer from prejudicing an employee on account of the exercise of any rights conferred by the LRA, the wearing of a union t-shirt constitutes a lawful activity under the LRA. This is particularly so insofar as the wearing of a t-shirt is an associative act and s 4 specifically protects an employee’s right to freedom of association by joining trade unions and participating in its lawful activities. On this basis, the union t-shirt ban is also an infringement of s 5(2)(c)(vi) and is invalid.”

It is important to note that the Labour Court also qualified its finding that a workplace rule that prohibits the wearing of trade union T-shirts is unlawful and invalid by stating that in certain circumstances, an employer may be able to justify the prohibition. In this regard, the Labour Court stated the following:

“[33] This is not to say that the exercise of the right to freedom of association by wearing a union t-shirt in the workplace is unlimited. One can imagine a justification on the basis of a significant threat to safety, and a number of other reasons. Indeed, Matlou gave the example in his evidence of employees engaged in work on tracks being prohibited from wearing red clothing, on account of signals being the same colour and the potential for confusion may arise. Transnet chose not to raise a plea of justifiability as a defence to NUMSA’s claim. It is not necessary therefore for me to consider the factors that might serve as a rational justification for a limitation on or prohibition of the wearing of union t-shirt in the workplace …. I have no doubt that in appropriate circumstances, inter-union rivalry and any associated violence in the workplace may justify intervention by an employer in the form of a limitation on the wearing of t-shirts and union insignia (or even its prohibition in extreme cases), but that is not the case made in the present instance.”

Regarding the question whether Transnet applied the rule selectively by not taking disciplinary action against members of other trade unions who, despite the policy, continued to wear union T-shirts in the workplace, and if so, whether this differentiation constituted an act of unfair discrimination against NUMSA members as envisaged in section 6 of the EEA, the Labour Court held that in light of the fact that it found that the banning of trade union T-shirts in the workplace unlawful and invalid, it was not necessary for it to consider this question.

What does this mean for employers?

Employers should be aware that a workplace rule that prohibits the wearing of any trade union clothing during working hours breaches sections 4(2)(a), 5(2)(c)(iii) and (vi) of the LRA, and if challenged, the rule will be set aside if no justifiable reason for the prohibition can be provided. 

Reviewed by Peter le Roux, an executive consultant in ENSafrica’s employment department. 

 

Mosima Ratau

employment | associate
mratau@ENSafrica.com
cell: +27 82 310 3734

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