Unfair Labour Practice

Aspects of Unfair Labour Practice Explained

The South African Constitution and the labour laws of the country provide protection against unfair labour practice in the work place. Unfair discrimination is unfair labour practice because, according to the South African Constitution, everyone is equal before the law. This means any discrimination at the workplace based on race, sexual orientation, religion, gender, age, conscience, culture, birth, language, colour, belief, or origin is against the law. The law also prohibits discrimination against an employee for belonging to a union, for their HIV status or for having specific family responsibilities.

If there is unfair discrimination, can there be fair discrimination?

Yes, as the law makes provision for discrimination based on productivity, affirmative action, job requirements, and compulsory discrimination by law.

What can a person do if they were a victim of unfair discrimination?

The employee can lodge a complaint with the employer regarding the particular discrimination issue, but if the issue is not resolved, the employee can refer it to the CCMA or a bargaining council. Should the issue still be unresolved, arbitration is the next step, or the employee can obtain legal guidance on how to take legal steps against the employer. This can entail taking the matter to the Labour Court for a decision.

Can an employer force an employee to work?

Any forced labour is prohibited by the Basic Conditions of Employment Act and by the Constitution of South Africa. The employer may thus not force a person to work overtime. The employee also has the right to change jobs after having given the correct notice period and cannot be forced to stay in employment at a particular employee. The total hours that an employee may work, inclusive of overtime may, according to law, not exceed 55 hours in one work-week cycle. This can, however, be exceeded if there is an emergency situation requiring the employee to work.

What constitutes sexual harassment?

The law stipulates that sexual harassment is conduct at the workplace that is unwanted and of a sexual nature. To be sexual harassment, the conduct must violate employee rights and must affect the right to equity in the place of work. It can take the form of verbal harassment or can be physical in nature. Examples of gestures or conduct that can be interpreted as sexual harassment include, but are not limited to touching, whistling, questions about the employee’s private sex life, sexual jokes, suggestive sexual requests, unwanted and unfitting staring at an employee’s body, and rude gestures.

Is unfair dismissal also part of unfair labour practice?

Yes. It is unfair treatment of the employee and against the labour laws and the constitution of the country. Any form of dismissal or disciplinary action that is not done for fair reasons and in a fair manner is unfair labour practice. Also note that an employer can also be guilty if they discriminate against an employee concerning promotion, based on factors like gender, sex, age, etc., and so is refusal of an employer to reinstate an employee in terms of an employment agreement. However, the employee is not entitled to promotion and can thus not hold the employer accountable for unfair labour practice if the employer promotes another employee that has been with the company for a shorter period. This is a complex issue best discussed with experienced labour attorneys.

If you feel that you have been the victim of unfair labour practice, seek legal advice related to dismissals, hours worked, remuneration, discrimination, and more. The attorneys will be able to help assess whether the incidence is unfair labour practice and provide you with legal guidance as to the correct steps to follow in resolving the issue, or for getting compensation for damages suffered.

Contact us at reception@www.allardyce.co.za or on (011) 234 2125 for professional legal guidance and representation.


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.

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