How far can employers go in banning employees from wearing t-shirts which the employer considers inappropriate, and can such a ban ever infringe upon a union member’s right to freedom of association? This was the question posed in the Labour Court case NUMSA obo members v Transnet Soc Ltd (case number JS427/15).
At the commencement of this judgment, the dispute was succinctly stated to be, “Is it legitimate for an employer to prohibit the wearing of union t-shirts in the workplace? The applicant (NUMSA) contends that such a prohibition would breach the rights of expression and freedom of association of its members. The respondent (Transnet) contends that there is no substantive right to wear a union t-shirt in the workplace as an element of the exercise of the right of expression or freedom of association, or on any other basis, except with its consent”.
In October 2014, the employer introduced a corporate and protective clothing policy which prohibited the wearing of ‘political party clothing or non-recognised union regalia’ during working hours.
Of particular importance in this case was the policy wording that “It is prohibited to wear clothing of any political party or union that has no organisational rights within the workplace…”. This of course meant, inter alia, that members of the two recognised trade unions, SATAWU and UTATU, could wear union t-shirts, but unrecognised trade unions, such as NUMSA, could not.
Thereafter, with effect from 1 June 2015, this policy was revised to broaden the prohibition to the wearing of clothing “or any regalia of any sort of any political party or trade union…”.
The employer argued that the blanket ban on the wearing of union t-shirts was, in essence, to avoid union rivalry which had the potential to spawn conflict, or as recorded in the judgment, “The new policy, introduced in 2015, prohibits all employees, regardless of union affiliation, from wearing union t-shirts on account of its intent to maintain and ensure a peaceful environment in the workplace. The rationale for the t-shirt ban, he (the employer) said, was one related to risk management”.
The court contended that “There are two issues to be decided. The first is whether the workplace rule banning employees from wearing ‘clothing or any other regalia of any sort of any political party or trade union …during working hours’ is constitutional, lawful, reasonable and valid. Put another way, the issue is whether through its conduct in prohibiting the wearing of union t-shirts in its workplace, Transnet has infringed the protections accorded by the right to freedom of association enshrined in Chapter II of the Labour Relations Act, 66 of 1995, (LRA). The second is whether Transnet has applied the rule selectively by not taking disciplinary action against members of other unions who despite the policy, continue to wear union t-shirts to work and if so, whether this differentiation amounts to an act of unfair discrimination against NUMSA’s members”.
The Court held “having regard to the interpretation of s 5 (2) (c) (iii) adopted by the Constitutional 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)” and “the wearing of union t-shirts constitutes a lawful activity”.
The judgment continued, however, that the right to wear union t-shirts is not unlimited – “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 that may arise.”
That is not to say that the prohibition on the wearing of union t-shirts will always be unlawful. The judgment continued that “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 for now, the blanket banning of union regalia, under normal circumstances, is prohibited.