Employers are increasingly having to deal with an uncomfortable reality. Senior employees, even those in management and HR, are entitled to take part in Union activities and may even hold office with Unions. At the same time, those roles demand loyalty, discretion and a clear commitment to the employer’s interests. The tension is obvious and, in many cases, unavoidable. Yet, the law offers little room to manoeuvre.
The Labour Court has confirmed that organisational rights apply to all employees, irrespective of seniority. In IMATU v Rustenburg Transitional Council (2000) 21 ILJ 377 (LC), an attempt to prohibit senior managers from holding office with a Union was found to be unlawful, notwithstanding the very real concerns regarding confidentiality, divided loyalties and operational disruption. The Court accepted that these risks exist, but held that they do not justify a blanket restriction. The same approach was adopted in FAWU v The Cold Chain (2007) 28 ILJ 1593 (LC), where an employer sought to require an employee to relinquish his position as a Union Representative (i.e. shop steward) as a condition of alternative employment. The dismissal that followed was held to be automatically unfair.
The principle is therefore settled that employers may not prohibit Union participation but are entitled to regulate and manage its consequences.
The courts have drawn a distinction between potential conflict and actual breach. Employers are not entitled to act on the basis that a conflict might arise, they are required to wait until it manifests in conduct that is inconsistent with the employee’s contractual obligations. This creates an inherent risk, particularly in senior roles where access to confidential information and involvement in disciplinary and strategic processes are unavoidable.
In AMCU on behalf of Ntuli v Ferroglobe Silicon Smelters (Pty) Ltd (2025) 46 ILJ 1160 (LC), the Labour Court confirmed that a standalone charge of a conflict of interest in these circumstances is untenable. Where an employer alleges a conflict of interest, it must be demonstrable that a senior manager’s involvement with the Union has led to misconduct or poor work performance. Union activity itself cannot be treated as misconduct or grounds for incapacity.
In AMCU v Ferroglobe, a senior manager was also a shop steward. The employer raised concerns that the employee had over-committed himself to Union duties at the expense of his managerial responsibilities. These concerns were compounded by his participation in disorderly conduct aimed at disrupting a disciplinary hearing and intimidating management, conduct which the Court found to fall outside the scope of legitimate shop steward functions.
While the employee alleged that his dismissal was automatically unfair as the real reason for his dismissal was his role as a shop steward, the Court held that the employee failed to discharge the onus to establish a credible possibility that he was dismissed for his participation in Union activities. Rather, the proximate cause of his dismissal was poor work performance and misconduct. An aspect of his dereliction of duty was failing to attend management meetings because he was busy with Union activities and not merely his involvement in Union activities.
The tension is even more acute in the context of HR. By its nature, the HR function is closely involved in disciplinary processes, restructuring, wage negotiations and the handling of sensitive employee information. Where an HR manager holds a position in a Union, the potential for conflict is not theoretical, it is immediate.
In IMATU, the Court accepted that senior employees may need to be relieved of certain functions, such as participating in disciplinary processes involving Union members, in order to manage the conflict. In practice, this means that HR managers who are Union office bearers may have to be excluded from specific processes, including disciplinary hearings and negotiations. This is not a restriction on their rights, but a necessary operational adjustment. The difficulty, however, arises where the employer has a single person employed in their HR department. In such circumstances, excluding that person from key functions may materially impact the employer’s ability to operate effectively. The law does not provide a simple solution but rather expects employers to find alternative arrangements, even where this is inconvenient or inefficient.
The position is further complicated by the fact that employers cannot rely on contractual provisions to resolve the issue upfront. Any attempt to require resignation from a Union position, whether directly or indirectly, is likely to be unenforceable. The focus must therefore shift to managing conduct. Confidentiality obligations, duties of good faith and performance standards remain fully enforceable. If an employee breaches these duties, disciplinary action may follow. If the employee is unable to perform their duties due to conflicting obligations, incapacity processes may be considered.
From an employer’s perspective, this requires a structured and deliberate approach. Contracts should clearly articulate confidentiality and conflict of interest obligations, particularly for senior roles. Job descriptions should identify core functions that cannot be compromised. Where conflicts arise, employers should consider practical adjustments such as reallocating functions, limiting access to information or restructuring reporting lines. Where those measures are insufficient, employers must be prepared to act on the basis of actual misconduct or incapacity.
What is clear is that this is not an issue that can be managed informally or reactively. The risks are significant and the margin for error is narrow. Employers who misstep face exposure to automatically unfair dismissal claims, with the attendant financial and reputational consequences.
Employers are accordingly well-advised to seek legal guidance at an early stage when these issues arise. Each situation must be assessed on its own facts, taking into account the nature of the role, the extent of the conflict and the operational requirements of the business. Appropriate steps must then be implemented in a manner that is both legally compliant and commercially workable.
