Topic 3

Unfair Labour Practices

Introduction

S186 of the LRA deals with 2 issues, namely, unfair dismissal and unfair labour practice. They
are not the same as an unfair dismissal is where there is a dismissal and the employee alleges
it was done unfairly. Unfair labour practice deals with how you treat an employee, training,
promotion, demotion, warning and everything apart from a dismissal.

S 23(1) Constitution  everyone has the right to fair labour practices

Background, the concept of unfair labour practice was introduced by previous LRA 1956; the
Act was very general in its description of what an unfair labour practice would be, there was
no actual examples of what constituted an unfair labour practice was, it simply stated that an
unfair labour practice was unfair. The court had discretion to decide whether employment
practices “unfair” and they had to give meaning to what unfair meant. Through case law the
Industrial courts said these are examples of unfair labour practices and with the recent LRA
1995, these examples were codified in the Act. The definition found within the new Act defines
that ONLY certain specific actions that are identified, where the conduct falls within the
definition, this will be regarded as an unfair labour practice. If an employee claim unfair labour
practice and it does not fall within one of the listed examples then contractual or Constitutional
remedies are available.

Interaction between Constitution and the LRA

In the Constitution: ‘everyone’ has right to fair labour practices; everyone is wider than the
definition of employee which we find in the LRA. The labour court has accepted the LRA’s
definition of unfair labour practice which is not necessarily exhaustive, as there is potential
Constitutional or common law remedies

“Unfair labour practice” means any unfair act or omission that arises between an employer
and an employee involving—
(a) 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;
(b) The unfair suspension of an employee or any other unfair disciplinary action short
of dismissal in respect of an employee;
(c) A failure or refusal by an employer to reinstate or re-employ a former employee in
terms of any agreement; and
(d) An occupational detriment, other than dismissal, in contravention of the Protected
Disclosures Act, 2000 (Act 26 of 2000), on account of the employee having made a
protected disclosure defined in that Act.”

Only between employer and employee is the first requirement, if the employee is unhappy
with a service provider cannot bring an application for unfair labour practice as it has to be
conduct between an employer and employee. Why dismissal is excluded form an unfair labour
practice? As it is dealt with in s186 (1).

If an employee brings a claim of unfair labour practice it must be conduct that exist between
the employer and employee, the claim MUST fall within these examples and if the conduct is
not mentioned within these examples you cannot bring your claim in terms of labour law, but
there might be a contractual or constitutional claim.

What is unfair conduct? It is basically unlawful conduct there is a lot that can fall under unfair
conduct, do not compare unfair conduct with discrimination, discrimination is dealt with in the
Employment Equity Act, is very specific and very limited. In other words discrimination may
be one example of unfair conduct; there are other types of conduct, therefore making it a wider
concept than discrimination. Why is it necessary to distinguish? The reason is a very simple
one, depending on the dispute; there are different forums that are applicable to resolve
disputes. If we are dealing with an unfair labour practice it will be adjudicated in terms of the
LRA and it will go to the CCMA for conciliation and arbitration process. When dealing with
unfair discrimination is adjudicated in terms of the EEA and it will be dealt with in the Labour
Court or Civil courts

Complaint formulation how you formulate a complaint will determine whether it is an unfair
labour practice or discrimination dispute, for example, a pregnant employee she applies for a
promotion at the company she has been working at for 10 years she is however unsuccessful
in her application. A male colleague is promoted; she feels she has been unfairly treated would
it be an unfair labour practice regarding the promotion or would it be a discrimination claim
due to the fact that she is pregnant. It all depends on the manner in which she formulates her
complaint, she formulates her complaint by stating that she has better qualifications, and then
it is unfair labour practice claim. If she says she was unsuccessful because she is a female, a
pregnant female, this would be a discrimination claim. She could go either way but it is a
question of whether she can prove.

FORMS OF Unfair Labour Practice

Statutory forms (s 186(2) LRA)

a) Promotion & demotion

b) Training
c) Benefits
d) Unfair suspension & disciplinary action short of dismissal
e) Treatment of whistleblowers
f) Failure to re-employ in terms of agreement

Non-statutory forms

Non-Statutory Forms of Unfair Labour Practices

Are the forms where you feel aggrieved but it does not fall within s186 (2) listed conducts this
is where you would have either a contractual or constitutional claim. These forms are the forms
that were mentioned by the Industrial Court decisions but were not codified under the 1956
LRA

(1) Unilateral variation of conditions of service

Common law stipulated that an employer may not vary any terms or conditions unilaterally,
only could do so where the employee agreed to that variation. Where an employer varies a
contract where it amounts to a demotion, or change of benefits that would fall under one of
our statutory forms under S 186(2) (a) which is applicable as it relates to demotion or benefits.
Variation of conditions as a non statutory it means variation of conditions of employment that
will not amount to demotion in other words change of working hours, if the employer simply
varies the contract and there are new working hours and the employee is unhappy there might
be an unfair labour practice claim. May however change benefits to which employee is not
contractually entitled for example privileges no policy of bonus, and the employer never gives
a bonus but just because they were working so hard and does so, should the employer not do
so in future that is not an unfair labour practice, as there was no contractual grounds. Dividing
line between contractual entitlements and privileges blurred, sometimes it difficult to see
whether this is an entitlement or a privilege.

(2) Pension rights

Applicable where you work for an employer, part of the conditions of your employment is that
you must belong to a specific pension fund, no choice. What happens if there is unfair conduct
regarding your pension money, this is not provided for in the LRA, therefore a non-statutory
claim? Disputes between pension funds and members falls outside Labour Court and the
CCMA’s jurisdiction. This is where you will have breach of contract or constitutional claim
within the civil court

(3) Transfer of employees

This has become irrelevant and the transfer of employees are now dealt with in s197 of the
LRA, before we had s197 employees were transferred and through that could have been
treated unfairly and then they could have a claim for unfair labour practice as there was breach
of contract. This has fallen away with introduction of s197

NEWU v CCMA  whether the employers have the right tot claim unfair labour practices
against employees. The facts specific employee in this case resigned from the employer,
without working out the notice period, the employee breached his contract and the employer
instituted a claim for unfair labour practice against the employee, stating that they as the
employer has been treated unfairly. Look at whether it is possible or not possible and the
reasons

Statutory Forms of Unfair Labour Practices

Promotion

Promotion is where you are already employed by an employer but you now want to go up in
the ranking obtaining more obligations. Unfair conduct includes both an act and an omission
by the employer relating to promotion, this takes the form of either failure or refusal to promote.
There is a difference between failure to appoint and failure to promote. For examples, X works
for the university I apply for promotion for a more senior position and my application is
unsuccessful if I feel it was unfair I might have an unfair labour practice claim based on
promotion. Y works for an outside company but wants to work for the university she applies
for the same position the X wanted to be promoted for, Y is also unsuccessful, and Y cannot
have an unfair labour practice claim as X would have, as her claim in for refusal to appoint.
ONLY current employees can institute an unfair labour practice regarding promotion
Examples of unfair failure to promote it is not a closed list, the 2 most common examples
would be where employer fails to follow it own or the agreed policy or procedure or where it
fails to adhere to advertised criteria for the position.

Where the employer failed to follow policy, especially bigger companies that have a specific
policy as to how promotions should be implemented, normally one of the conditions is that it
needs to be advertised internally in other words. You cannot decide who you want to promote
bur you rather need to advertise. Sometimes the employer has a certain individual in mind that
they want to promote and they simply offer the position to them without advertising, anyone
who wanted to apply for that position can institute a claim of unfair labour practice for
promotion to follow policy.

To advertise is where the company stipulates that in order to be promoted to this position you
need to have the following qualifications and years of experience, for example you need to
have a LLB degree and you need to have 5 years post articles experience, you are
unsuccessful in your application and you find that the successful candidate is still studying
towards there LLB, you will have an unfair labour practice claim to promote since the they did
not adhere to their requirements or for being ‘overlooked’, for some unacceptable irrelevant or
invidious reason.

If you are not promoted simply cos of your religion, race or gender that would be an unfair
discrimination claim in terms of the employment equity act.

The affected employee has onus to prove the claim and would have to show, that they did in
fact apply for the promotion. The employee must also prove that they do posses the objective
attributes required for promotion, for example the experience or qualifications the employer
required and lastly the person promoted does not possess above experience or qualification.
Employment equity and affirmative action comes into play here, as the employers defence.

What happens when an applicant is unhappy with being promoted and they take claim to the
CCMA and the CCMA at arbitration agrees they should have been promoted instead of the
person that was person who was successful, does that mean that, that person must be take
the position promoted and then be replaced?

Theoretically yes, that why there is all these precaution put into place, but practically it does
not happen like that as it unfair to that person who is innocent in all this, to be taken out of this.
The court and arbitrators the order the employer to put the employer on the same level as the
other in terms of salary and status although he practical functions has not changed.

In proving that you are better qualified than that applicant, it is not sufficient however to simply
prove better qualified or more suitable, although both is important is not the only
considerations, so what are the other considerations that need to be looked at to show that
you are a better candidate, did you met the objective requirement that the employer required
sometimes depending on the position and the company a third requirement might be that you
must be able to speak 3 languages. If you apply and you can only speak English and Afrikaans
then there will be no unfair labour practice. The requirement given must be related to the
position, the employer cannot just through in random requirements having nothing to do with
the job
Is candidate far more superior to person who was promoted, this where we look at candidates
who are already on different levels, for example the successful candidate is on level 1 which
is your lowest level and the candidate is on level 2, and the position both applied for is on level
3, so we look at whether the other is more senior as the more senior will be promoted. It all
depends on the circumstances of each case.

Irrelevant criteria considered by employer such as hair colour or if you are pretty or not

Employer exercised discretion in biased manner or a wrong principle is applied, this is normally
where you appoint a family member or friend you are taking wrong considerations into account
you are being biased due to the relationship.

Other examples unfair labour practices to promote

a) Employee given reasonable expectation to promotion

Where the employer says that you will be promoted but when the position opens up
you are not promoted
b) Employer not adhering to minimum requirements
c) Creation of specific position for person without advertising internally in terms of
policies
d) Invite applications for promotion, but only consider one applicant
e) Failure to appoint temporary staff in full-time position
Temporary staff has no security as to whether they have the job, therefore they need
to be considered first before an outsider is considered
f) Failure to confirm ‘acting’ employee in position
g) Fair/lawful reason for preferring successful candidate

Demotion

In terms of the common law a demotion by an employer was a unilateral change of

employment, which is now unfair. The employer repudiation of employment contract is no
longer allowed unless the employee consents there too. It is the same today an employer
cannot unilaterally demote an employee, he can only so where the employee consents thereto.
Why would anyone consent to a demotion, demotion is not only about a cut in salary
(remuneration), de4motion can also relate to your responsibilities or status. For example you
are kept on your same salary level but your responsibilities are less, you managed a team of
10 but know they are placed under another manger, but it has just been limited.

In term of the LRA a demotion would be lawful if it is done fairly. why would an employee
consent to demotion, where the employee feels overwhelmed by the position knowing that he
is unable to do the job, they consent thereto or where the employee is in the position but is
not performing as they should, the company goes through the incapacity process and
ultimately gone through that process fairly, goes through a hearing either dismissed or a lower
level that you can fill, if he agrees to the demotion.

A title merely changed being changed is not an unfair labour practice, if you were called a
senior manager but know is changed to that of manager, there is no change in status or duties,
it is still the same. The employee placed in post with slightly different work, the work falls within
scope of employee’s duties but might be a little different, for example, you work in a general
law firm your job description says that you are appointed as an attorney, but know it just
happened that you spent most your time in commercial litigation, now all of a sudden, there is
a spike in family law disputes and they place you there, you cannot claim unfair labour practice,
although your work is slightly it still falls within your responsibilities, as you agreed to be an
attorney and not an attorney in a specific area.

Fair demotion is where there is an agreement, it is done to avoid retrenchment or avoid

dismissal for incapacity

Training

Where the employer has to provide training or where the conduct has to do with training. It is
very difficult for the courts to find whether there was an obligation to provide a certain kind of
training, the only training that unfair labour practices claim that has really gone to court is
where training would be provided as stipulated in the contract. For instance when you start as
a candidate attorney the contract is based on principle that you will be provided with practical
in house training, if you go to work and your employer does not provide you with training, then
you might have a claim of unfair labour practice with regard to training as you are being unfairly
treated. Yet there is no clarity what would constitute unfair labour practice with regards to
training.

“inconsistency, arbitrariness, or the lack of due process” this is the second type of training
claim that you get, although proving this is quiet difficult, this is where there is no agreement
that the employer will provide training but practice in the company has been that the employer
provides training of a specific nature to certain employees but now he fails to provide you, if
you can show that failure is unfair or inconsistent then you will have an unfair labour practice
claim.

Discipline

S186 (2) of the LRA prohibits unfair disciplinary action short of dismissal and unfair
suspension, the reason why is dismissal is excluded is cos it is dealt with in s186 (1).

With regards to disciplinary action, includes all forms of disciplinary action for example this
deals with warning, and you as the employee feel that you were given an unfairly or it was to
severe under the circumstances, this would be classified as an unfair labour practice where
you can got to the CCMA and fight the matter out.

With regards to unfair suspension which includes suspension with and suspension without pay
and there is a difference. The general rule is that there must be suspension WITH pay if you
are suspended before a hearing as you do not know of the employee is guilty or not, therefore
you cannot suspend them without pay. Suspension without pay is ONLY instituted as a
sanction after the employee has been found guilty.

When we deal with unfair labour practices relating to suspension there are 2 possible claims,
the first is where the employee is suspended before a hearing but that has been instituted
without pay or secondly, where there is suspension without pay as a sanction but the
employee claim that is too harsh of a punishment or suspension pending inquiry which is never
held.

Suspension for unreasonable period or longer than period provided for in disciplinary code,
the suspension period becomes indefinitely long. Suspension being unreasonable long also
amounts to an unfair labour practice claim. If your suspension is unreasonable long are they
allowed to get another job prior to the hearing? The general rule is no, as you are still a full
time employer of the employee, even though you are not working on a daily basis, but where
the suspension is unreasonably long the courts that if the employer is not taking any action,
why should the employer loos out on experience, years of active service, these are exceptions.
Legislature does not provide a time that an employee may be suspended, the general rule is
that the disciplinary hearing should be held as soon as possible after the conduct has taken
place, but this is all dependant on circumstances of each case. Where there is direct evidence
it would be shortly thereafter, but in cases where there is no direct evidence then it could take
longer due to investigation. Here we would use the reasonable test, what would the reasonable
employer in his shoes have done in the circumstances, where the circumstances such that
another employer taken a year or 2?

Hearing where suspension given as sanction was manifestly unfair, the employees suspended
pending disciplinary hearing: full pay and benefits and the employee may not however work
elsewhere

Whistleblowers

In s186 (2) it states that another example of unfair labour practice is relating to the Protected
Discloses Act, 26 of 2000 and it protects whistleblowers. The main point is that the Protected
Discloses Act deals with the making of a protected disclosure; a protected disclosure is defined
in the Act. A protected disclosure can only be classified as such if the specific information that
is being disclosed to specific parties stipulated in the Act, for example if X discloses the
information to his friend Y, that would not be regarded as a protected disclosure. A protected
disclosure will only be regarded as such hierarchy of steps that were taken before you make
the final disclosure. The point is that if an employee makes something that which can be
classified as a protected disclosure and the employer then takes acting against that employer
for having disclosed all of this it would amount to an unfair labour practice.

When looking at corruption for instance where an employee is aware of corruption within the
company and the employee blows the whistle on that corruption to a much more senior
employer, if the employer takes action against that employee it could be an unfair labour
practice as it is a protected disclosure, however if the employee is aware of corruption and
runs to the newspaper without having disclosed to the relevant people that person will to be
protected by the Protected Discloses Act as it does not fall within definition of what a protected
disclosure is and the employer will be able to take action.

The employee needs to refer the matter to the CCMA as an unfair labour practice claim, but
at the same time the employer can approach either the high court or the labour court direct for
an interdict prohibits the employer from continuing with this action against the employee, or
prohibit the employer conducting a disciplinary hearing. Both can be brought simultaneously
as the matter can take months in the CCMA and an interdict is instantaneous relief.

P1rotected Discloses Act and the LRA protects employees against dismissal, or any prejudice
(“occupational detriment”), if they disclose information in terms of the Protected Discloses Act,
employees need to prove that disclosure protected in terms of the Protected Discloses Act,
subsequently subjected to occupational detriment for example, harassed, unfairly treated,
intimidated, transferred)
Failure to re-employ in terms of the agreement

Here there are 2 specific circumstances under which this becomes applicable, the first is
where the employee has been dismissed, the employee feels that it has been done unfairly
and takes the claim to the CCMA at conciliation stage, the parties reach an agreement and
part of the agreement is that the employer will reinstate the employee. The employer fails to
take the employee back into their employ apart from the unfair labour dismissal that will
continue there will be breach of agreement as well, and on top of that there might be an unfair
labour practice claim.

The other example is where there is a retrenchment of an employee for operational or financial
reasons. What we find in retrenchment dismissals a lot of the times are that an employer says
to the employee who are retrenched that should a similar position open up in the company in
the future against, should our financial status change and become stable and the positions
are reopened we will hire you as you were the last person. In the event that all goes well and
the company employees a person in that same position and that person is not the employee
that could be an unfair labour practice as that was an agreement.

An agreement is just as valid, if done verbally as a written agreement, the issues that arises
is that is the issue of evidence as to how you prove that such a agreement was made, as it is
there word against yours. If one can prove that there was an agreement whether in writing or
verbally both are equally acceptable

When we speak about re-employed it does not mean in the exact same position can be re-
employed in a different position, the employee must however be qualified for new position.
The LRA does not expressly state that offer to re-employ must be on the pervious terms and
conditions.

Difference re-employment v reinstatement

Re-employment is where an employee is re-employed by the employer but does not have to
be in the same position or on the same conditions of employment as previously. Re-
instatement is the opposite is where you are re-employed into your position with your exact
same benefits; it is as if you never left.

Coetzee v SAPS

Unfair Labour Practice relating to promotion, the relevant criteria not applied by SAPS?

Probation

What is probation? It is where your employer and employee but subject to a period of time
during which time the employer will assess their performance, let’s say 3 months at the end of
the 3 moths, if the employer is unhappy with the employee’s performance the employer can
dismiss the employee without much trouble. That period of assessment is called probation
period. Goal is to asses an employee to see whether that employee who in the interview and
on face value seem to be more than capable to do the job. Probation is to protect the employer
and provide an opportunity for the employer to assess the individual. Item 8 of Schedule 8 to
LRA: Code of Good Practice: Dismissal
Opportunity to evaluate new employee’s performance before confirming employment, this is
not to be used to deprive employees of permanent status.

Probation period is not covered in the Act must be reasonable & determined in advance, but
the general rule or common practice is anywhere 1-3 months, this is not cast in stone as there
might be circumstances or certain positions which require a long period of probation, for
instance employing someone into an extremely technical position, a position which only a
handful people are qualified to do, might need a longer probation period as you need to give
the person more time to adapt to the type of work as it is so unique.

Employer assesses or evaluates employee’s performance. The employer duties towards the
employee the employee cannot just let the employee work there unaware of what is to be
done and at the end of the probation period you are dismissed. An employer is required to
communicate with the employer, the employer must state the specific areas of performance
that is good and the other areas that need improving, the employer must then assist by provide
training, guidance, counselling, in order to allow employee to perform satisfactorily and the
employer to inform employee if performance below standard, and specific problems. After all
this if the employee is still not performing at the level they should the dismissal will be fair.

After probation period has been completed what does an employer do then? If the employer
is happy with their services then the employer will confirm appointment into employ. If the
employee is unhappy with the individual’s performance then the employer can either dismiss
the employee as there are not on the level they are required to be or the employer can say to
the employee that they are not happy with the performance that was made we provided you
with assistance and training and gave feedback, although you are not on the level we expect
you to be there has definitely been an improvement and we would like to extend your probation
period and give you another period of time if you can improve more, this extension of period
the act does not state how long, the act only says that to may not be extended for an
unreasonably long time. Common practice or the general rule is that the extension periods
should not be longer than the initial period.

Upon completion of the probation period does the employer have to provide the employer with
a new contract, the act is silent on that what happens in practice is that most employers do
not provide the employee with a new contract, they can put it in a sentence or two that the
employee is now permanent and that the contract runs for an indefinite period.

Don’t get confused with an employee on probation period and an employee on a fixed term
contract, probation period is not a fixed term contract, part of an indefinite contract where the
first part of the contract is the definite part. Probation period is not a fixed term contract.

Should the employee raise an unfair labour practice claim against the employer, the main
question the CCMA is going to ask did the employer try to rectify the situation within the
boundaries of reasonableness. If the answer yes no problem, if no then the employer is
blameworthy.

Examples of Unfair Labour Practice related to probation, unreasonable extension of

probationary period, employer does not provide relevant training or not allowing employee to
make representations regarding performance.

Benefits
Difference between “remuneration” and “benefits” and why it's so important to distinguish
between the two. Remuneration generally relates to amount of money you receive at the end
of the month, remuneration is a basic condition within the BCEA and disputes are resolved
differently.

A benefit is typically if you belong to pension fund and the employer also contributes an
amount extra from your remuneration to that fund which is a benefit. This relates to unfair
labour practice, mainly by way of arbitration

LRA Section 213: Definition of “remuneration”

‘Remuneration’ means any payment in money or in kind, or both in money and in kind,
made or owing to any person in return for that person working for any other person,
including the State...

The definition however does not say anything as to what remuneration is, this is why the court
has difficulty defining what remuneration means. Remuneration is an essential term of
employment contract. Courts have difficulty defining “benefits”; the general rule is that benefits
are seen as stopping short of the definition of ‘remuneration’, but something extra or above
remuneration. Distinction between remuneration and benefits is not always clear.

Examples of benefits discretionary bonuses, travel allowances this is not a closed list.

CAN BE ASKED IN A SHORT QUESTION!!!!

Remedies and Procedure

What do you when an unfair labour practice has been committed, the remedies and
procedures? S191 of the LRA, the basic procedure is referral to the CCMA or Bargaining
Council, the difference between an unfair dismissal and an unfair labour practice is the time
frame within to bring the application. For unfair dismissal claim it must be brought within 30
calendar days of the dismissal. An alleged Unfair Labour Practice claim must be referred for
conciliation within 90 calendar days, NOT as of date on which act or omission was committed,
but 90 days as of date on which employee first became aware of unfair labour practice act or
omission. If conciliation fails, then refer to arbitration. Arbitrator has power to order
compensation for unfair labour practice, compensation limited to maximum of 12 months’
remuneration; this is not dismissal so there is no reinstatement or re-employment. The award
must be rational and justifiable; if there is a minor breach then it would be unreasonable to
give the maximum compensation of 12 months.