"The Fly in the Ointment" or Simply a "Born-Again Shop Steward" Defending Workers’ Rights to Fair Representation? – The Case of Msunduzi Municipality v Hoskins 2017 38 ILJ 582 (LAC) in Retrospect

Abstract

At a distance, the decision by the Labour Appeal Court in Msunduzi Municipality v Hoskins 2017 38 ILJ 582 (LAC) appears to be a typical case of dismissal for gross insubordination. However, upon closer examination Msunduzi brings to the forefront the conflict of interest between a senior employee's responsibilities as a HR manager and his controversial role in representing fellow employees who faced disciplinary charges at the municipality. Compared to the senior managers in the antecedent cases of Keshwar v SANCA 1991 12 ILJ 816 (IC) and IMATU v Rustenburg TLC 1999 20 ILJ 377 (LC), in the case at hand the managerial employee was no longer a member of a trade union. The hybrid role performed by Hoskins created tensions within management ranks and turned into a migraine for the newly appointed acting municipal manager. To cut to the chase, as an HR manager Hoskins was figuratively and literally "the fly in the ointment". His "forward approach" as a "born-again shop steward" went beyond chutzpah. Therefore, the Labour Appeal Court cannot be faulted for upholding Hoskins' dismissal. Msunduzi compels intense engagement with the all-encompassing duty of mutual trust and confidence, the breakdown of the trust relationship, the intolerability of a continued employment relationship, "non-reinstatable conditions" as embodied in section 193(2)(a)-(d) of the Labour Relations Act 66 of 1995 and the effect of post-dismissal misconduct on the availability of reinstatement. Also arising are discrete questions concerning insubordination and insolence, conflict of interest and incompatibility.