Adcock Ingram Critical Care v CCMA & others (2001) 22 ILJ 1799 (LAC)

An employee, acting in a representative capacity during negotiations, enjoys greater leeway than normal because of the dual role of negotiator and employee, but this does not give the employee free rein to do or say anything in a threatening or insulting manner. Intimidation can exist even if it is aimed at management in general and not a particular individual.

Facts:

During negotiations with management during an acrimonious and bloody strike, an employee said "You can treat this as a threat - there will be more blood on your hands". He was charged and found guilty of intimidation. The arbitrator found that the words were uttered in a privileged environment behind closed doors, and as such the dismissal was unfair. On review in the Labour Appeal Court there was disapproval of the commissioner's views, but because the reasoning of the commissioner could not be faulted, there was no ground to interfere with the award.

Extract from judgment:

It may be accepted than an employee enjoys greater leeway than normal when he acts as a negotiator. This flows from his dual capacity (as en employee and negotiating representative). But it would be wrong to lay down that he has free reign to do or say whatever he wants. He remains an employee, and that relationship has to be taken into account as well.