Unfair labour practices in the workplace are governed by S186(2) of the Labour Relations Act (LRA). It is important for employees to understand this provision in order to effectively exercise their right to fair labour practices in terms of Section 23 of the Constitution of the Republic of South Africa, 1996.
What is unfair labour practice according to South African Labour Law?
Section 186(2) of the LRA defines 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 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,
- the unfair suspension of an employee or any unfair disciplinary action short of dismissal in respect of an employee,
- a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement or
- an occupational detriment, other than dismissal, in contravention of the Protected Disclosure Act, 2000 (Act 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.”
To succeed in an action based on an alleged unfair labour practice, employees must prove that the conduct or practice complained of falls within the terms of one of the practices expressly listed in the definition above.
Unfair conduct and promotion disputes
With regards to unfair conduct, to constitute an unfair labour practice, the act or omission in question must be between an employee and his or her own employer. It is important to note that employees cannot commit unfair labour practices against their employers.
When speaking about disputes concerning promotion, the practice will fall within the ambit of S186 of the LRA if it is shown that the employer has exercised its discretion capriciously and for unsubstantiated reasons. Employers may be guilty of unfair conduct relating to promotion if they give employees a reasonable expectation that they will be promoted and fail to follow up on that expectation. Most importantly, it is important to ask whether the employer acted fairly.
Labour Law and unfair demotion
In order for demotion to constitute an unfair labour practice for purposes of the LRA, employees must prove that the employee’s remuneration, responsibilities or status is materially reduced.
Demotions may be deemed fair if they are aimed at avoiding retrenchment or dismissal for incapacity, or if the employee is demoted as a disciplinary penalty imposed for a valid reason and after a fair procedure. However, it is an unfair labour practice to advertise the employee’s position, and the employer indicates that if the position is filled, the employee would be demoted.
In addition, a demotion is unfair when it is imposed as a disciplinary penalty together with a transfer to another division of the employer’s organisation.
Employer obligations regarding training and benefits
Employers are obliged to train their employees. Unreasonable failure to do so would constitute an unfair labour practice.
With regards to unfair labour practices relating to benefits, the provision of benefits must fall within the scope of what the courts have held to be “benefits” in order for the dispute to be decided on this basis.
Unfair suspension or disciplinary action
Section 186(2) prohibits the unfair suspension of employees or unfair disciplinary action short of dismissal. To fall within the terms of this provision, disciplinary action short of dismissal must be disciplinary both in nature and intent. It is important to note that for purposes of unfair suspension, precautionary and punitive suspension fall within the terms of section 186(2).
The Protected Disclosure Act and employees
The Protected Disclosures Act and the LRA together protect employees against dismissal or any prejudice if they disclose information to specified persons concerning, inter alia, the commission of criminal offences, ‘miscarriages of justice’, unfair discrimination and conduct detrimental to health and safety or the environment.
Employees must prove that the disclosure to which the employer took exception was protected and that they were subjected to an occupational detriment.
Obligation of the employer to reinstate an employee
With regards to a failure or refusal by an employer to reinstate or re-employ a former employee, employees must prove the existence of an agreement that imposes an obligation on the employer to re-employ them in the particular circumstances of the case. A mere ‘intimation’ that the employer will consider rehiring is not enough.
The above discussion should be noted by employees wishing to take action in alleged cases of unfair labour practices as it would enable one to ascertain whether or not their matter is protected by Section 186(2) of the LRA.
Consult with a Labour Law expert
Each matter related to unfair labour practices in the workplace should be considered on its individual merits in consultation with a legal expert. If you as an employer or employee need assistance with your matter, please contact our experienced Employment and Labour Law attorneys to find out what your best strategy would be.
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