Gain a Better Understanding Regarding Unfair Labour Practice
It is imperative that employers and employees gain a better understanding of unfair labour practice in South Africa. Understanding unfair labour practice will help the employer to avoid pitfalls in employment relations and help the employee to identify situations, which do not constitute fair labour practice.
To this end, we briefly discuss some instances of unfair labour practice.
Unfair labour practice is when the employer treats a job applicant or existing worker unfairly according to the practices defined in the Labour Relations Act of South Africa. Indeed, understanding unfair labour practice starts with a better understanding of the laws governing employment. According to the Act, every employee has the right not to be subjected to such practice. Unfair labour practice is about the omission of an action or being guilty of an unfair act in the employment relationship.
Such practices include suspension of an employee for an unfair reason, refusing to reinstate an employee in accordance with the terms of an employment contract, suspending or taking disciplinary action against an employee for an unfair reason, and demoting an employee or not promoting an employee for an unfair reason.
If the employer, for instance, fails to promote an employee in accordance with the employer’s policy on promotion and it is the result of the employer’s discrimination against the employee, then it is unfair labour practice.
Understanding the various acts, including the Employment Equity Act, Basic Conditions of Employment Act, and the Labour Relations Act is essential in managing employment relations. Discrimination against an employee is unfair for whatever reason unless such discrimination is in accordance with the law.
If every employee in the company must, for instance, pass a particular test before they can be promoted and all of them do so, but one employee is not promoted even though he did pass the test, then it is discrimination and thus unfair labour practice.
Another example is when only the kitchen workers in a hotel get increases, bonuses in December, and employment contracts, while the front of house staff does not get any of the above. The employer must be consistent in the treatment of employees. If, for example, the employer provides transport at night for employees working at his lodge to their homes, but two of the employees staying in the same area are not allowed to make use of the transport at night, then the employer discriminates.
Understanding unfair labour practice issues are essential also when it comes to referral of such disputes. An employee must refer a dispute regarding suspension without pay to the Department of Labour. The reason is that non-payment of salary is referred to the Department of Labour. The unfair disciplinary action of, for instance, suspension, which the employee claims has been done without their wrongdoing, is an unfair labour practice, which must be referred to the CCMA.
In another example, the employer suspends the employee for a long period without pay for an argument between the employee and a co-worker but does not suspend the co-worker. There are many more instances of unfair labour practice, best discussed with our experienced attorneys.
Employers and employees do not always know which disputes to refer to their respective Bargaining Councils, the CCMA, or the Department of Labour. However, we do and we are here to assist with all labour- and employment-related issues, also in understanding unfair labour practice instances.
If you believe that you are a victim of unfair labour practice or if you, as an employer, have been accused of unfair labour practice, seek legal and expert guidance on the matter. Call us at 011 234 2125 for labour law assistance.
Disclaimer: This article is for information purposes only and does not constitute legal advice. You are advised to consult with us before using/relying on this information. Information is relevant to the date of publishing – February 2018.