Understanding Unfair Labour Practice and the Requirements of the BCEA
Are you a new start-up worried that you might be juggling too many hats at once? Just read an article about a start-up that got taken to the CCMA by an employee over unfair labour practice? Scratching your head over what unfair labour practice really means? In a volatile economic climate such as ours where up to 80% of businesses fail each year, running any type of business is tough. From setting up shop, recruiting employees, drafting contracts, marketing, reaching sales goals, performance management, payroll, accounting, tax, and dealing with conflict resolution to dismissals – you’ve got way more responsibilities than you can handle.
Know Your Employees Rights
Today, businesses need to be very careful over the way they treat their employees. Employees have rights and South Africa’s Constitution goes far in guaranteeing these rights are met. Before we get into unfair labour practice – here is a basic summary of workers’ rights in South Africa.
- No worker may be retaliated against for demanding the rights set out in the BCEA.
- Employees may not work for more than 12 hours of overtime each week.
- Employees working night shift must be debriefed on the health and safety risks, as well as compensated for regular medical examinations.
- Annual leave cannot be taken away from employees while on maternity or sick leave.
- Employees are entitled to family responsibility leave.
- Deductions may only be made from an employee’s pay if agreed to in writing and are either a legal requirement, or part of a collective agreement, arbitration award or court order.
- Employees are entitled to four weeks’ notice if they have worked for longer than a year.
- Employees must be given the opportunity to challenge their dismissals.
- Collective agreements via the Bargaining Council may differ from the Act as long as worker protection is not reduced as regards health, safety, or family responsibilities.
- In addition to investigating complaints, employees must be notified of their rights and responsibilities.
The reality is that just because you’re an entrepreneur, doesn’t make you a human resource or labour law expert, and just as an entrepreneur can lead a business into victory, so they can lead their own business into liquidation, which is why it’s imperative to arm yourself with knowledge of the labour laws, starting with unfair labour practice. Because the Labour Relations Act (LRA) does not clearly define the concept of “unfairness”, but rather defines it as any unfair act or omission that arises between an employer and an employee infringing the employee’s rights – what is unfair labour practice and how can you avoid it? Here is a quick breakdown:
a. Unreasonable Promotion, Demotion, Probation and Training – this often involves employers who deviate from their own promotion or training policies or where the employee alleges that the promotion, demotion or training is in itself unfair. Let’s say two employees write the same test, both pass, but only one employee gets a promotion, a new phone or a new laptop. The failure to promote all employees or gift them all with laptops or phones will be viewed as discrimination and the employer could be found guilty of unfair labour practice.
b. Unfair Suspensions and Disciplinary Actions – let’s say an employer has an argument or disagreement with their employee and suspends him/her without a disciplinary hearing; this could fall under unfair labour practice.
c. Failure to Reinstate a Former Employee – if an employee was retrenched but it was agreed in terms of an agreement that the employee would be re-employed if a suitable position became available, but the employer disregards the agreement by employing another person, then the employer could be guilty of unfair labour practice.
d. Whistle-Blowing – a whistle-blower is a person who exposes any kind of information or activity that is deemed illegal, unethical, or not correct. The Act protects whistle blowers and employees who “blow the whistle” may not be dismissed and subjected to disciplinary action.
For more information on our labour law consultation services and rates – contact us at reception@www.allardyce.co.za or on 011 234 2125 today.
NB: 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.
