UNFAIR LABOUR PRACTICES
Section 185 of the Labour Relations Act (“the LRA”) provides that “every employee has the right not to be subjected to an unfair labour practice.” but what exactly is an unfair labour practice?
An unfair labour practice means any unfair act or omission that arises between an employer and an employee, involving:
- The unfair conduct of an employer relating to the promotion, demotion or training of an employee or relating to the provision of benefits to an employee.
- This generally involves a situation where the employer deviates from its promotion or training policies or where it is alleged by the employee a promotion, demotion or training was unfair.
- The unfair suspension of an employee or any other disciplinary action short of dismissal in respect of an employee.
- This specifically applies to the suspension of an employee as a form of punishment for misconduct. The suspension of an employee pending a disciplinary hearing for the purposes of conducting an investigation into the misconduct or preventing the employee from tampering with evidence or influencing potential witnesses is not an unfair labour practice.
- The failure or refusal of an employer to reinstate or re-employ a former employee in terms of any agreement.
- These disputes usually arise following a retrenchment where the employer, during retrenchment proceedings, undertakes to re-employ an employee at a future time when the operational requirements of the employer permit the re-employment of the employee. This may also constitute an unfair dismissal.
- An occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000, on account of an employee having made a protected disclosure as defined in that Act.
- The Protected Disclosures Act protects employees from prejudice if they make a disclosure as envisaged in the Act. Any such unfair treatment following the disclosure can be seen as an unfair labour practice.
According to Section 191 of the LRA, an employee has 90 days from the date of commission of the alleged unfair labour practice or within 90 days of having become aware of the unfair labour practice to refer the dispute to the CCMA.
How can Brittan Law help you?
As an employer?
If you are considering disciplinary steps against an employee or are unsure that any actions might amount to an unfair labour practice or have been referred to the CCMA over an alleged unfair labour practice, we are here to help. With our extensive knowledge of the South African labour law, we can confidently advise or represent you, thereby reducing the risk of an adverse award and discontentment in the workplace.
As an employee?
Demotions and suspensions may well be considered to be unfair if the steps taken weren’t fair. Being subject to unfair treatment in relation to promotion and training or being prejudiced as a result of a protected disclosure is similarly an unfair labour practice. If you have been treated unfairly we can help by assisting you in referring a dispute to the CCMA.