Unfair Dismissals, Unacceptable Labour Practice and Related Issues
The Labour Relations Act (LRA) regulates labour practices in South Africa and defines actions that are deemed to be unfair labour practices. According to the LRA, workers have the right to be treated fairly. Unfair labour practices refers to the employer’s conduct regarding promotion of the employee, training or demotion of the worker as related to the benefits that the employee enjoys in contravention of the allowable actions according to the LRA.
Unfair labour practices actions entail suspension of a worker for unfair reasons or in an unfair manner or unfair disciplinary action, not including dismissal of the worker. Such practices furthermore include instances where the employer does not want to reinstate a former worker as per agreement or any occupational detriment, not including dismissal that is in direct violation of the Protected Disclosures Act of 2000 – based on the employee having disclosed information, which is protected according to the regulations of the said Act.
Failure to promote a worker for promotion, who has the experience, credentials and the track record to justify promotion, because of discriminatory reasons is in contravention of the LRA and constitutes an unfair labour practice. The same holds true for a situation where the employer withholds benefits from an employee, such as free transport or housing when the other employees at the same job level receive such benefits. Where the employer provides training to all workers, but not to specific workers without valid reason then such an action may also be seen as unfair, unless the excluded workers have already received similar training before.
Where an employee is subjected to disciplinary action for which the employee believes him or her to be innocent, the employee can refer the dispute to the CCMA. Where the employee does not get paid because of the outcome of a disciplinary action, the employee cannot refer the case, but if the employee is suspended pending the outcome of an investigation, the employee must still be remunerated, and although it is a dispute regarding salary, it is not a dispute about fair labour practice. It only becomes an unfair labour practice if the employee is suspended for an unreasonable period without any reasonable cause for the delay in completing the disciplinary enquiry.
Suspension would be deemed as unfair when two employees become involved in a dispute of which one of the employees holds a more senior position, but only the junior employee is suspended pending the outcome of the enquiry into the dispute, if the senior employee is indeed at fault.
An employer may not refuse to reinstate a worker in terms of an agreement which can be verbal, collective, written or on an individual basis. An employer, for instance, may need to restructure the organisation leading to retrenchments of employees. If there is no existing agreement in place, the retrenchment is considered an unfair dismissal. An illustration of such a situation is where the employee is retrenched, but there is an agreement in place that the employee will be reinstated should a vacancy arise, but even though there is an opening, the employer chooses to hire another person. This type of action falls within the unfair labour practice category.
Regarding protected disclosure – if a worker discloses a criminal activity of an employer and as the result of such disclosure is dismissed, the dismissal will fall within the unfair labour practice category. Any dispute regarding unfair treatment can be referred for conciliation, which will be handled by a bargaining council or in the instance where there is not a council for the industry or sector, to the CCMA for resolution. If the dispute is not resolved by means of conciliation or dispute resolution, the case can be referred for arbitration to have the issue resolved.
Where to Get Legal Guidance
Employers and employees who require guidance, legal presentation or review of situations to determine whether unfair labour practice has taken place or who want guidance in prevention of such, are invited to make use of Allardyce & Partners. We are a well-established labour law attorney firm and represent employers, employees, bargaining councils, trade unions, and employer and employee organisations. Our services also include polygraph testing, disciplinary hearings, litigation, contracts, theft cases and legal advice.
*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.
