JUDGING IT TO A T

Court rules against Transnet’s ban on employees wearing Numsa T-shirts to work — and sets aside any pending disciplinary actions based on the ban

For many people, ditching their uniform is one of the good things about finally leaving school. They imagine they will never again be told what they may or may not wear. But, of course, they often are: uniforms, or rules about clothes, are a more important part of real life than young adults realise when they finish school.

At Transnet, rules about workwear have proved fraught. And the National Union of Metalworkers of SA (Numsa) has been at the sharp end of the dispute.

Transnet has, in the past four years, issued two successive dress codes. In 2014, its “corporate and protective clothing policy” banned anyone from wearing “political party clothing or nonrecognised union regalia” during work hours.

Numsa was not then, and is still not, recognised by Transnet, so this rule severely affected its members, to the benefit of managementrecognised unions.

In 2015, the policy was revised, and all staff were banned from wearing “clothing or any regalia of any political party or trade union” to work — a rule that hit all unions.

As irritation grew, the issue ended in the labour court. Now, following a two-day hearing, judgment has been given: a defeat for management’s dress code.

Numsa’s argument was that the ban infringed workers’ rights of expression and freedom of association. Management said there was no substantive right to wear a union T-shirt to work, except with employer consent.

A Numsa witness told the court that when he joined Transnet in 2012, the rule was that employees could wear jeans and a T-shirt when they did not have to wear safety gear to work.

There was no problem about wearing a union T-shirt, regardless of the union, and no disciplinary action was taken over the issue. Following implementation of the 2014 dress code, anyone wearing a Numsa T-shirt had problems and some people were dismissed.

According to Transnet management, the ban was made necessary by growing union rivalry in the workplace and violent strikes. It was aimed at maintaining “a peaceful environment in the workplace” and was part of a “risk management” rationale.

At issue, according to the judge, was whether the ban was “constitutional, lawful, reasonable and valid”. Had Transnet infringed the protections of the right to freedom of association enshrined in the Labour Relations Act (LRA)? And would participation in the lawful activities of a trade union extend to wearing a union T-shirt to work?

Among others, he quoted cases from the US on whether workers were allowed to wear “union buttons” to work. These judgments found the wearing of union insignia at work had long been seen as “a reasonable and legitimate form of union activity”. He agreed with legal writers that “managerial absolutism”, evident in banning union insignia, “takes its toll on individual dignity and subjugates individual autonomy”.

The case for limitations

However, the judge said wearing union insignia is not an unlimited right. A Transnet witness had earlier referred to workers not being allowed to wear red T-shirts on train tracks because of the danger of confusion with red signals. The judge said in such a case the significant threat to safety could provide a justification for restrictions. An employer could also limit or perhaps even ban the wearing of union insignia where inter-union rivalry and violence was significant. But Transnet had not made such a case — there had simply been mention, in general terms, of “tension” between unions.

There was thus no basis, on the evidence before the court, to find that the limitation of the right to freedom of association, represented by the T-shirt ban, was reasonable and justifiable. Finding that the prohibition breached the LRA, the judge set it aside, along with any pending disciplinary action based on the ban.

Would legal participation in trade union activities extend to wearing a union T-shirt to work?