Unfair Labour Practices

labour lawThe employee is thoroughly protected within the workplace- not only from unfair dismissals, but also from unfair labour practices. Section 186(2) of the Labour Relations Act defines an unfair labour practice as follows:

  1. unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee.
  2. Unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee.
  3. A failure or refusal by an employer to re-instate or re-employ a former employee in terms of any agreement.
  4. An occupational detriment, other than dismissal.
    1. This relates specifically to “whistleblowing” and is protected in terms of the Protected Disclosures Act 26 of 2000

It must be noted that this section does not apply to every situation within the workplace as not every person who works is considered an employee or an employer. In order to make use of this section, the unfair labour practice must be between the employer and employee, and only an employee is entitled to make such a claim.

One aspect of unfair labour practices is the denial of a promotion. This does not mean any person can claim unfair labour practice whenever a boss says no to a promotion. The employee must prove:

  1. That the employer refused to promote the employee.
  2. That while the position was open, no temporary employee was employed to fill the position.
  3. That the employee was given a reasonable expectation that he/she would be promoted.
  4. That the Act or omission of such was unfair.
  5. That the employer was unreasonable in his/her denial.
  6. That the employee had the necessary skill to take up the position while the person that was appointed does not.
  7. That any discriminatory reason was at play (even though this factor falls under the Employment Equity Act).

How is the matter of unfair labour practice resolved (this process is followed not only for promotion but any of the other acts of unfair labour practice as mentioned above)? The following process must be followed:

  1. The matter must be referred to the CCMA in writing for conciliation within 90 days of the unfair conduct.
  2. If the above fails, the matter then goes to arbitration.
  3. Arbitrator is given a much wider discretion to act and decides on the dispute according to what is reasonable including, rei-instatement, re-employment and even compensation.

For more information on unfair labour practice, contact Du Toit’s Attorneys on 012 742 0100 or 012 643 1882. Alternatively, you can send an email to: johan@dutoitsattorneys.co.za or hanja@dutoitsattorneys.co.za