Unfair labour

practices – ULP’s
 Discuss the meaning of the concept contemplated in
section 186(2) of the LRA;

Comprehensively differentiate between the various

conduct that constitute an “unfair labour practice”

Learning Apply the legal principles relating to ULPs and

dismissals to a set of facts
outcomes
Remedies

Dispute resolution
Introduction
• ‘Unfair labour practices’ i.t.o. 1956-LRA was catch-all category of conduct by employers,
employees and their organisations that, according to Industrial Court, fell within definition of
unfair labour practice.
• Catch-all category disappeared with 1995-LRA because different types of unfair conduct are
separately dealt with. Examples are:
• Unfair dismissal (Chap 8)
• Unfair employer conduct towards employees for exercising their freedom of association (Chap 2)
• Organisational rights (Chap 3)
• Unilateral amendment to employment conditions (sect 64)
• Only small number of practices considered as unfair were not placed in specific category.
Previously it was referred to as ‘residual unfair labour practices’, but we now refer to it as ‘unfair
labour practices’.
• New concept ‘unfair labour practices’ refers to only few specific practices (which are not
regulated separately) although practices that are regulated separately, still are also unfair labour
practices.
• Unfair labour practices i.t.o. 1995-LRA can be committed by employer only.
 • Any unfair conduct by employer relating to:
• Promotion, demotion, probation (excluding disputes
about dismissals for reason relating to probation) or
training of employee or relating to provision of
benefits to employee.(see Apollo Tyres cases)
• Unfair suspension of an employee or any other unfair
disciplinary action short of dismissal in respect of
ULP defined employee.
• Failure/refusal by employer to re-instate or re-
employ former employee in terms of any agreement.
• Occupational detriment, other than dismissal, in
contravention of Protected Disclosures Act, 2000 (Act
26 of 2000), on account of employee having made
protected disclosure defined in that Act.
Promotions
• Promotion refers to an employee raising to higher rank/office and includes appointment
to position with greater authority and status.
• The term unfair conduct relates to the failure by an employer to meet an objective
standard and may include arbitrary, capricious or inconsistent conduct.
• Insofar as unfair conduct relates to promotion:
• A mere unhappiness or a perception of unfairness does not necessarily equal
unfair conduct.
• Promotion is a managerial prerogative.
• The prerogative is however limited by the need for procedural and
substantive unfairness.
• The employer must act fairly when promoting/not promoting an employee.
Procedural fairness regarding promotion
• The employer must adhere to ‘bottom line’ of fair promotion procedure, which refers to the need for all candidates to be afforded
reasonable opportunity to promote their candidature.
• The employer must follow his/her own procedures, be these based on legislation, collective agreement, company policy, or
established practice.
• A fresh procedure may be conducted to cure identified defects.
• An employee may challenge the composition and/or competency of the selection panel, i.e. the panel must have reasonable
knowledge to take a reasonably informed decision.
• Employees who’ve been acting in more senior position do not have automatic right to promotion to that position when it becomes
available.
• However, employers run the risk of acting unfairly if they don’t consider the ‘acting’ employee.
• An employer may have to consider some form of acting remuneration (allowance).
• Promotion must include some form of reward, e.g. higher salary.
• It is however possible for promotion to be higher status without higher salary.
• Employer must consider development of employee.
Substantive fairness regarding promotion
• Refers to reasons why employer decided to prefer employee for promotion.
• The employer however retains the discretion to appoint person regarded as most suitable for
post.
• Subjective considerations may be taken into account, e.g. performance at an interview.
• An arbitrator should exercise deference to the employer’s discretion and may not interfere except if it’s
proven that employer failed to apply his mind when candidate was selected.
• Even though it may not be easy to justify why a particular candidate is preferred over another, the
employer must be in a position to provide reasons for decision.
• The has to be a logical connection between true reasons and decision taken.
• Acceptable considerations include:
• One criterion carrying more weight than rest of criteria.
• Preferring a candidate with a lower evaluation may be acceptable, if the employer has good reason to do so.
• External candidates are appointed while internal candidates are promoted.
• Promise for promotion does not entitle employee to promotion, but may create legitimate
expectation.
• Promotions may also occur within the context of affirmative action.
Demotions
• This is the reverse of promotion in that the employee is moved to a lower rank/level.
• Unfair conduct in this instance relates to the failure on the part of the employer to use objective standards
which may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended.
• As a disciplinary measure, demotion is allowed in circumstances where dismissal was justified but, because of
mitigating factors, employer decided not to dismiss employee.
• Demotion, except demotion as disciplinary measure, must be preceded by consultation, even if no loss of
status/salary, otherwise it is considered a unilateral amendment of conditions of employment.
• Demotion as disciplinary measure must only be implemented if employer’s disciplinary code provides for it.
Benefits and training
• The CCMA and LC favour the narrow interpretation of the term benefits, excluding all payments that could be
interpreted under the broad ambit of remuneration are excluded.
• In light of this commission is considered part of remuneration and therefore not a benefit (Schoeman v
Samsung).
• A benefit is a supplementary advantage conferred on an employee for which no work was required
• A pro-rata bonus is not considered a benefit.
• A housing allowance is considered a claim for a higher salary and therefore not a benefit.
• However transport allowances, provident funds and medical aids are considered benefits.
• The use of a company car for business purposes is not considered a benefit.
• An acting allowance is not considered a benefit.
• A benefit must be material in nature, i.e. it must include monetary value for employee and expense for employer
(Apollo tyres).
Benefits and training
• An employer is guilty of an unfair labour practice should he/she refuse to train
employees when contractually compelled to do so.
 An employer is guilty of unfair labour
practice if he/she is found to be acting
Unfair unfairly when suspending employee or
imposing disciplinary sanction short of
suspension dismissal.

and other “Holding-operation”

disciplinary In the Koka-case the LC

pending disciplinary
hearing i.r.o.
misconduct/incapac
ity

action distinguished between 2

forms of suspension:
Form of disciplinary
sanction
(Suspension as
contemplated in
Act)
“Holding-operation”
• Employees are often suspended with pay pending a disciplinary
hearing.
• This may be considered fair if the employer had reasonable apprehension
that legitimate business interests would be harmed by employee’s continued
presence in workplace.
• There are contradictory judgements with regard to the need to conduct a
hearing prior to suspension, with some indicating that no need exists,
whereas others indicate that an employee is entitled to be heard, as such a
suspension damages one’s reputation.
• An employee may not be suspended indefinitely.
• Suspension, in this instance, without pay is unfair, unless the employee or
trade union seeks to postpone the hearing.
Disciplinary sanction
• Suspension without pay is normally adopted as a disciplinary sanction
short of dismissal, in instances where dismissal would be justified
were it not for mitigating factors.
• An employer is not required to convene a formal hearing before imposing a
sanction short of dismissal where the penalty of dismissal was never
contemplated.
 • It is an unfair labour practice if an employer
refuses to reinstate or re-employ a former
employee in terms of an agreement.
• The agreement may refer to:
• An individual contract, written or verbal
Refusal to • A collective agreement (for example in
reinstate or instances where employees are
retrenched)
re-employ • Not re-employing retrenched staff as they in
instances where they are unqualified for the
vacant positions is not considered unfair.
Probation
• A newly appointed employee may be appointed on probation, provided period is
reasonable.
• The aim of probation is to allow the employer to evaluate the employee’s
performance.
• An employee on probation is still an employee
• The employer must deal carefully with misconduct (ordinary principles of
substantive and procedural fairness apply) or incapacity (if performance is not
according to standard, evaluation and help by employer is required).
• (LRA Schedule 8)
Item 8 of Code of Good Practice- Probations
• May acquire a newly hired employee to serve a period of probation before the
appointment of the employee is confirmed
• Purpose is to give the employer an opportunity to evaluate the employee’s
performance before confirming appointment
• Probation should not be used for the purposes not contemplated in the code
• The period should be determined in advance and be for a reasonable period
• Performance should be assessed
• If performance is below standard, the employee must be advised of any aspects in
which the employer considers the employee to be failing to meet the required
performance standards
• The period can only be extended for a reason that relates to the purpose of
probation and should not be disproportionate
• Only decide to dismiss or extend the period after the employee has been invited to
make representation
Item 8 of Code of Good Practice- Probations
• If ER decides to dismiss ee or extend the probationary period, ER must advise EE
of their right to refer the matter to a council with jurisdiction or the CCMA
• Peron making decision about fairness of dismissal for poor performance
during/on expiry of the probationary period should except reasons for dismissal
that would be less compelling in dismissals after the period expired.
• After probation an employee should not be dismissed for unsatisfactory
performance unless the employer has:
• Given the employee the appropriate evaluation, instruction, training and guidance and
• After a reasonable period of time for improvement, the employee continues to perform
unsatisfactory
• Procedure leading to dismissal should include an investigation to establish the
reasons for the unsatisfactory performance & the er should consider other ways,
short of dismissal, to remedy the matter
• EE should have the right to be heard and to be assisted by TU rep or a co-worker.
• The purpose of Act is to promote the disclosure of
crimes and irregularities without fear of reprisal.
• An employee may not be subject to
occupational detriment if he/she makes a
protected disclosure of information.
• Disclosure of information includes:
Protected
• The committing of a criminal offence Disclosures
• Failure to comply with legal obligation
• Occurrence of miscarriage of justice Act (26 of
• Endangerment of health/safety
• Damage to environment
2000)
• Unfair discrimination
• Concealing above
 • Disclosure is protected:
• To legal practitioner/legal advisor
• In good faith to employer
Protected • In good faith to member of Cabinet or to
Disclosures Executive Council of province
• In good faith to Public Protector or Auditor-
Act (26 of General
• In good faith to any person/body by
2000) employee who reasonably believes that the
info is true
 • An occupational detriment includes:
• Disciplinary action
• Dismissal/suspension/demotion/harassment/
intimidation
Protected • Transfer against will
• Refusal to transfer/promote
Disclosures • Variation of employment/retirement conditions
Act (26 of to detriment
• Refusal of reference or adverse reference
2000) • Refusal to appoint to position/profession/office
• Threat regarding abovementioned
• Adverse treatment pertaining to employment
Job applicants
• Normally job applicants cannot refer their non-appointment to CCMA
on the grounds of an ULP.
• If the non-appointment was due to discrimination, the applicant would refer
the dispute to the CCMA for conciliation, and thereafter to the LC for
adjudication.
• However a non-appointment because of a protected disclosure is considered
an ULP.
Dispute resolution
• Disputes about unfair labour practices
• Refer the dispute in writing within 90 days of the date of the act or omission which allegedly constitutes the unfair
labour practice or, if it is a later date, within 90 days of the date on which the employee became aware of the ac or
occurrence.
• Employee must satisfy the council or the Commission that a copy of the referral has been served on the employer
• Council or the Commission must attempt to resolve the dispute through conciliation
• Council or the Commission must arbitrate the dispute or refer to Labour Court (if a dispute is about an occupational
detriment suffered)
• Unfair labour practice relating to probation must be referred for con-arb
Dispute resolution
Remedies
• After the 2002 amendments to LRA, arbitrators could determine ULP
disputes on terms which
• the arbitrator “deem(ed) reasonable” including
• an order of reinstatement,
• re-employment or
• compensation.
• Let's look at the discretion arbitrators use to fashion a reasonable
remedy appropriate to the nature of the particular ULP….
 Promotions: compel an employer: to promote an
aggrieved employee or to set aside an irregular
promotion or to correct an improper procedure.

Demotions:Our courts have been prepared to grant interim relief on a prima facie
view of an ULP prior to the actual determination of the dispute. Our courts have
granted compensation and ordered reinstatement as remedies in circumstances in
which a demotion led to a constructive dismissal.

Most
favoured Benefits: The granting of compensation is the favourite
remedy in an ULP benefit dispute.

remedies
Suspension: The remedies of reinstatement and orders
restoring the original terms and conditions of
employment are applied in these disputes.

Protected disclosures: interdicts, compensation, re-

instatement and re-employment
 ordered interim relief, granted compensation,

Arbitrators and
judges have
utilized the set aside promotions, ordered promotions,

scope of
remedies
permitted to ordered the implementation

correct ULPs and

reinstated employees,
of proper procedures,

have:
reinstated salaries and
benefits and have
encouraged parties to
fashion their own remedies
best suited to their
circumstances.
Prescribed cases for Unit 5 (dismissals and
ULP’s)
• Schoeman v Samsung Electronics SA (Pty) Ltd [1997] 10 BLLR 1364 (LC);
• Dlamini v Toyota SA Manufacturing (2004) 25 ILJ 1513 (CCMA);
• Murry v Independent Newspapers (2003) 24 ILJ 1420 (CCMA);
• Mwamwende v University of Kwazulu-Natal (2006) 27 ILJ 2174 (CCMA);
• Apollo Tyres South Africa (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and
others [2013] 5 BLLR 434 (LAC);
• Tshishonga v Minister of Justice & Constitutional Development & another [2007] 4 BLLR (LC)
• POPCRU and others v Department of Correctional Services and another 2010 (9) BCLR 921 (LC);
• SACWU & others v Afrox Ltd [1999] 10 BLLR 1005 (LAC);
• Department of Correctional Services and another v Police and Prisons Civil Rights Union and
others [2013] 7 BLLR 639 (SCA)
• CWIU v Algorax (Pty) Ltd 2003 11 BLLR 1081 (LAC);
• Fry’s Metals (Pty) Ltd v National Union of Metalworkers of SA 2003 ILJ 133 (LAC)
Reference
• Du Plessis, J.V. & Fouche, M.A. (2015) Practical Guide to Labour Law,
8th ed., LexisNexis Butterworths: Durban.