Unfair

labour
practices
Chapter 8
WEEK 5
 Introduction

• Prior to 1979 no legal recourse for ULP

• Lawfulness and fairness – don’t always go together = Common law contract no inherent
right to fairness
• Labour jurisprudence developed based on equity and fairness, by 1994 it was developed
enough to add into S 23 Constitution
• Interplay between Constitution and LRA (residual ULP were added into the LRA)

• The old definition of ULP in the 1956 LRA was based on the Industrial Court developed
based on concept of fairness first time courts looked at fairness not just lawfulness)
• Original definition:
• Act or omission (not a strike or lock-out) that unfairly effects / prejudices employees /
disruption of employer’s business / creates labour unrest / disturbed EE & ER
relationship
• Broad enough for individual and collective labour law Protected the
employer
 The definition

The new individual labour law framework provides for the codification of all unfair dismissals and
unfair labour practices. (chapter VIII) Also included are:

• The right of everyone not to be unfairly dismissed or subjected to an unfair labour

practice (section 185);
• The protection of all employees against automatically unfair dismissals (section 187);
• The protection of all employees against unfair dismissal (section 186 read together
with sections 188, 189, 189A and the Code of Good Practice: Dismissal);
• The protection afforded employees in a transfer of a business as a going concern in
terms of sections 197 and 197A

All issues to do with unfair discrimination are now dealt with in the EEA and although
discrimination is no longer officially designated as an unfair labour practice, it does constitute
unfair conduct that has legal consequences for employers and employees.
S 186(2) of the LRA defines an unfair labour practice as meaning 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 employees can claim unfair labour
practices

Only an employee may be a victim of an unfair labour practice as defined in the LRA S 186(2)
of the LRA defines an unfair labour practice as meaning 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;

In NEWU v CCMA the scope of the definition was considered.

The case dealt with whether an employer could institute a claim for unfair labour practices
against employees and whether the exclusion of employers to do so ito s 186(2) was
unconstitutional on the basis that it infringed s23 [everyone]? The court held that the exclusion
in terms of section 186(2) was not unconstitutional and in addition to this, the court further
stated that the employer had other remedies at its disposal.

It is therefore trite that S 186(2) provides a numerus clausus/closed list of unfair labour
practices, however, since s23, as a constitutional right is therefore wider, it may be possible to
challenge this position in future on the basis of s36.
 Disputes

S 191 of the LRA provides that if a dispute about ULP remains unresolved after conciliation,
the CCMA/Bargaining Council with jurisdiction must arbitrate the matter.
This suggests that, conceptually at least, a dispute about ULP is a dispute of a right.

Protekon (Pty) Ltd v CCMA & others (2005) 7 BLLR 703 (LC)  used to pay travel concessions
but then the ER unilaterally withdrew this “benefit” and paid a once off bonus. The Court
said that the couldn’t force the ER to now withdraw the new system and re-implement the
old one (abuse of ULP). Ees cant use ULP to force the ER’s hand into instituting better
benefits. Dispute about ULP cannot be used as an abuse.
 Protection in the Constitution
and LRA

The right to fair labour practices in terms of The protection against unfair labour
the Constitution: practices in terms of the LRA:

1. Is wide 1. Is limited to the list of actions in the

definition of unfair labour practices
2. protects “everyone”, in other words also
workers who are not employees in terms of 2. protects employees only against specific
the LRA actions by employers

3. an infringement of the right to fair labour 3. an employee cannot commit an unfair

practices will be determined with regard to labour practice towards an employer, only
surrounding circumstances an employer can commit an unfair labour
practice to an employee
S 186(2) of the LRA defines an unfair labour practice as meaning
any unfair act or omission that arises between an employer and
an employee involving –

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;
 Promotion
Most cases dealing with unfair conduct by an employer relating to promotion concern
refusals to promote the claimant. This includes when:
1. Employees have acted in a position but are not substantively appointed to the post
2. Failure to promote a temporary employee to a permanent position’
3. Where an employer created a reasonable expectation that an employee will be
promoted and then frustrated that expectation by failing to promote an employee.

REQUIREMENTS
In such instances, the employee must prove that the employer refused to promote him.
Having proved that the employer refused to promote him/her, the employee must then
prove that the act or omission complained of was unfair:
a) the employer exercised discretion impulsively
b) the reason provided cannot be substantiated
c) the decision was taken on a wrong principle, or
d) the decision was taken in a biased manner
Dlamini v Toyota SA Manufacturing (2004) 25 ILJ 1513 (CCMA)

it was held that the CCMA and our courts should be hesitant to interfere with the
exercise of the management’s decision in the absence of gross unreasonableness
which may lead the forum to draw an inference of bad faith.

Simply put, it was held that the decision to promote falls within management’s
prerogative and the decision to promote is only reviewable if it is flawed.

The employer must act in good faith, apply its mind to the selection and supply
reasons for its decision.

Employees must show that they possess the attributes and skills necessary for the
position and that the person promoted does not possess the same. The mere fact
that an employee is already in a position does not guarantee a right to
promotion.

Might be a reason for the lack of promotion (i.e. s 6 EEA – operational req / AA)
 Demotion

• In terms of S 186(2)(a) an employee must prove the factual demotion as well as its
unfairness.

• Demotion must involve a loss of status and benefits or a diminution in status.

• A change in conditions or a reduction in status and responsibilities may also constitute a

demotion for purposes of ULP

• Although demotion may be imposed as a disciplinary penalty, it must be imposed for a

valid reason after a fair procedure has been followed.

• Restructuring may also be considered as an unfair demotion.

 Probation

The Code of Good Practice regulates the position of probationary employees.

A probation period of reasonable duration is confirmed and should be determined in

advance.

The purpose of a probation period is to give the employer an opportunity to evaluate the
employee’s performance before confirming employment.

There are no hard and fast rules as to the period.

The code sets out procedural as well as substantive requirements for dismissal during
probation.

Probation may be extended for a reason only relating to the purpose of probation.

An employee can be more “easily dismissed” during probation.

The requirements for a fair probationary period:

1. should be determined in advance

2. should be a reasonable duration, determined with
reference to:
• the nature of the job, and
• the time it would take to determine the
employee’s suitability for continued employment

Possibilities at the end of probation:

3. Extend the probationary period to enable the

employee to improve his/her performance –only of
justified e.g. complexity of the job.
4. Dismiss the employee, or
5. Confirm the appointment of the employee
 Training
Claims for ULP relating to training can arise out of the following:
• Contract of employment
• Collective agreement
• Employee shows a reasonable expectation to be trained
• SDA has the purpose to assist disadvantaged persons in SA.
• The EEA requires designated employers, as part of Affirmative Action to train
employees to develop skills.

Maritime Industries Trade Union of SA 7 others v Transnet Ltd & others (2002) 23 ILJ 2213
(LAC)  ULP wrt training can be proven where the ER has acted: inconsistently, arbitrarily /
irrationally
 Benefits

Definition of remuneration in LRA S213: any payment in money or 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, and “remunerate” has a corresponding meaning.

In SCAAWU v GARDEN ROUTE CHALETS (PTY) LTD:

Benefits include all the rights which accrue to an employee by virtue of the employment
relationship – from wages through to additional matters like pension, medical aid, housing
subsidies and so on.

SCHOEMAN v SAMSUNG ELECTRONIC SA (PTY) LTD:

The Labour court held that the commission claimed by the applicant was not a “benefit” but
was part of the employee’s salary. The court held a benefit is something other than
remuneration, extra and apart from remuneration. With other words also a material
benefit, a financial benefit at cost of an employer but it must arise ex contractu or ex lege.
GAYLARD V TELKOM:
The payment for accumulated leave was not a benefit but rather part of
“remuneration”. The court chose to interpret “benefits” narrowly to avoid
limiting the right to strike over wages and other disputes of interest.

HOSPERSA & ANOTHER v NORTHEN CAPE PROVINCIAL ADMINISTRATION

The issue whether a benefit must arise out of the contract (ex contractu) was
addressed and once again a narrow interpretation was given. The extra
remuneration was held not to be a benefit but rather a wage or salary issue
that is not intended to be decided by arbitration. The benefit must arise ex
contractu (by virtue of a contract of employment or a collective agreement) or
ex lege (the Public Service Act or any other applicable Act).

PROTEKON CASE
There is little doubt that remuneration in its statutory sense (as defined in the
LRA) is broad enough to encompass many forms of payment to employees that
may, in the ordinary use of the language, properly be described as benefits and
therefore there is no closed list of employment benefits that fall within S186(2)
(a). There can be little doubt that pension, medical aid etc. fall within the
scope of that term.
 Each case judged on its own
DEPARTMENT OF JUSTICE v CCMA & OTHERS:
Minority judgment questioned the decision in the HOSPERSA case that if only
those rights that arose out of contract or from the law could be benefits
then the provision would be redundant since such rights would have been
enforceable even in the absence of S186(2)(a) (enforceable ex lege or ex
contractu  would have their own remedies) the point of s186 can be
argued as looking at benefits not arising ex lege or ex contractu.
 Apollo Tyres South Africa v
CCMA and others
What constitutes a benefit i.t.o section 186(2) of the LRA?

This issue was dealt with in Apollo Tyres South Africa v CCMA and others:
In the Apollo case the Labour Appeal Court criticizes this distinction between salaries and
remuneration drawn by the courts and describes it as artificial and unsustainable.
According to the court the definition in section 213 of the Act is wide enough to
encompass wages, salaries and most, if not all extras or benefits. Today many benefits
are payment in kind and form part of the essentialia of employment contracts.

In the Protekon case, with reference to the Hospersa case, the judge confirmed that the
unfair labour practice jurisdiction cannot be used to assert an entitlement to new
benefits or to new forms of remuneration or new policies, as this should be left to the
collective bargaining process.
In the Apollo judgment, Musi AJA supports the statement in Protekon, that the mere
existence of a discretion exercised by an employer does not deprive the CCMA of
jurisdiction.
What did the court in the Apollo case define a benefit as?

After an evaluation of the various attempts by our courts to provide a

definition, the Labour Appeal Court stated that a benefit in terms of section
186(2)(a) can be defined to include a right or entitlement to which the
employee is entitled, ex contractu or ex lege, including rights judicially
created as well as an advantage or privilege offered or granted to an
employee in terms of a practice or policy subject to the employer’s
discretion.

In which instances will the CCMA have jurisdiction to consider the fairness of an
employer’s conduct of not providing a benefit?

• Where the employer fails to comply with a contractual obligation that it has
towards the employee; and
• In instances where the employer exercises a discretion that it enjoys in terms
of a contract of the scheme conferring the benefits.
 Suspension
S 186(2) of the LRA defines an unfair labour practice as meaning any unfair act or
omission that arises between an employer and an employee involving
(b) The unfair suspension of an employee or any other unfair disciplinary action short of
dismissal in respect of an employee;

Suspension could be a penalty or it could be it could be affected pending a disciplinary

enquiry.
A suspension as a disciplinary inquiry is not meant to be punitive as the allegation of
misconduct has not been proved.
During the suspension, the employee must be provided with reasons for his/her suspension
as well as the length and duration thereof.
The employee must be paid for the period of suspension.
If the suspension is in place for an unreasonably long period, it may constitute an ULP.

Furthermore, if an employee’s reputation may be damaged by suspension, the employee is

entitled to be heard before the suspension. In addition the employee must be allowed an
opportunity to make representations.
S 186(2)(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.

Protected disclosures
“whistle blowing”
What are the occupational detriments that may arise on account of a protected disclosure?
1. A person may be subjected to disciplinary action
2. A person may be subjected to dismissal, suspension, demotion, harassment or
intimidation
3. Transferring
4. Refusal to transfer or promote
5. A person may be refused a reference

How does the law prevent occupational detriment in instances of whistle blowing?
There exist no common law provisions for the prevention of occupational detriment.
However, the Protected Disclosures Act has been enacted and now regulates such instances.
 Protected Disclosures Act (PDA)

Responsibility – the PDA states that every employer and employee has a
responsibility to disclose criminal and other irregular conduct in the
workplace

Goal? – the goal of the PDA is to promote a culture of openness and

accountability without fear of reprisal; and the eradication of criminal and
other conduct

Application – The PDA applies in both public and private sectors

Internal procedures – Employees are encouraged to exhaust internal

procedures and remedies before disclosures are made public, thereby
endeavouring to balance the right to freedom of speech of employees in
the workplace with the employers reputational interests.

Protection - Section 3 of the PDA provides that: No employee may be

subjected to any occupational detriment by his or her employer on account,
or partly on account, of having made a protected disclosure. S 186(2) LRA
further provides that such occupational detriment is an ULP ito the LRA.
A ‘disclosure’ is widely defined to mean any disclosure of information,
regarding any conduct of an employer (or an employee of that
employer), that is made by any employee who has reason to believe
that the information concerned shows or tends to show one or more of
the following improprieties:

• That a criminal offence has been committed, is being committed or

is likely to be committed;

• That a person has failed, is failing to or is likely to fail to comply

with any legal obligation to which that person is subject;

• That a miscarriage of justice has occurred, is occurring or is likely to

occur;

• That the health or safety of an individual has been, is being or is

likely to been dangered
The test used to determine whether the information shows one or more of
the abovementioned improprieties contains both subjective and objective

Elements:
• The test is subjective in that the employee who makes the disclosure
has to hold the belief.

• It is objective in that the belief has to be reasonable. Whether the

belief is reasonable is a finding of fact based on what is believed
(Tshishonga v Minister of Justice & Constitutional Development &
another).

• As a result, mere rumours or conjecture, personal opinion, expressions

of subjectively held opinions or accusations will not constitute
disclosures of information. Some factual basis must be laid by the
whistle-blower to justify the conclusion that the disclosure is based
on information.
What is a “protected disclosure”?

A ‘protected disclosure’ is defined to mean a disclosure made to specific

persons or bodies, or so-called ‘regulators’ and it is made in good faith.

These regulators, persons or bodies include a legal advisor, an employer, a

member of Cabinet or of the Executive Council of a province, or certain
specified persons or bodies such as the Public Protector or the Auditor-
General.

What is a general protected disclosure?

A ‘general protected disclosure’ is not made to a specified person or body.

A general protected disclosure is defined in S 9(1) of the PDA to mean:

any disclosure made in good faith by an employee who reasonably believes
that the information disclosed, and any allegation contained in it, are
substantially true, and who does not make the disclosure for purposes of
personal gain.
When will a disclosure be protected in terms of the PDA?

• The person claiming the protection must be an employee;

• The employee must have reason to believe that the information in his or
her possession shows, or tend to show, that it falls within the range of
conduct that forms the basis of the definition of ‘disclosure’ in section 1
of the PDA;

• The employee must make the disclosure in good faith;

• If there is a prescribed procedure or a procedure authorised by the

employer for reporting or remedying any impropriety, then there must
be substantial compliance with that procedure;

• If there is no procedure either prescribed or authorised, then the

disclosure must be made to the employer; and

• Some ‘demonstrable’ nexus must exist between the disclosure and the
occupational detriment.
In Communication Workers Union v Mobile Telephone Networks (Pty) Ltd
the court set out conditions to be satisfied before a disclosure can be
protected:

• An employee must have made a protected disclosure within the

ambit of the PDA;

• The employer must have taken action against the employee which
amounts to occupational detriment within the ambit of the PDA; and

• The detriment suffered must be on account of or partly on account

of having made the protected disclosure – this implies a causal link
between the disclosure and the retaliating action by the employer.
 RESOLUTION OF UNFAIR LABOUR
PRACTICE DISPUTES

How are disputes regarding unfair labour practices

resolved

If there is an ULP:

First go to the CCMA for conciliation. If

conciliation fails, you will go for arbitration (at
the CCMA) in most instances.

However, in the case of occupational detriment

on account of a protected disclosure as a ULP,
you will first go to the CCMA for conciliation and
if it fails, you go to the Labour court.

In the case of ULP on the ground of probation,

you will the matter for conciliation and
immediately for arbitration thereafter if
conciliation fails. (this is referred to as
‘CONARB’