Employment and Labour Law

 

 

 

Yes. Generally, unfair labor practice disputes must be referred to the CCMA or a bargaining council within 90 days of the act or omission that allegedly constitutes the unfair labor practice.
 

Common examples include:

  • Unfairly denying an employee a promotion.   
  • Unfairly suspending an employee.   
  • Unfairly withholding benefits.   
  • Discrimination in training opportunities.   
  • Failure to reinstate an employee according to an agreement.   

In South Africa, an unfair labor practice is broadly defined as any unfair act or omission that arises between an employer and an employee. This can involve various situations, including unfair conduct related to promotions, demotions, probation, training, benefits, and unfair disciplinary actions short of dismissal.   
 

An unfair dismissal refers specifically to the termination of an employment contract, while an unfair labor practice encompasses a broader range of unfair actions that may occur within the employment relationship.

The LRA provides the legal framework for labor relations in South Africa, including unfair labor practices. It sets out the rights and obligations of employers and employees and establishes procedures for resolving disputes.   
 

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Unfair Labour Practices

Workplace disputes can arise from a multitude of issues, but when actions by an employer deviate from established legal standards and principles of fairness, they may constitute Unfair Labour Practices (LRP). At Aucamp Attorneys, we understand the complexities of these situations and are dedicated to helping both employers and employees navigate the often-challenging terrain of labour law. Whether you're facing allegations of unfair treatment or seeking to ensure your workplace practices are legally sound, we provide expert guidance to protect your rights and maintain a just working environment.

The South African Constitution, in Section 23, guarantees everyone the right to fair labour practices.  The Labour Relations Act (LRA) further defines specific actions by employers that are considered Unfair Labour Practices (ULPs).  Whether you are an employee who believes you've been unfairly treated, or an employer seeking to ensure legal compliance, Aucamp Attorneys is here to provide expert guidance.

The LRA provides a specific, limited list of what counts as a Unfair Labour Practices  

These generally involve unfair conduct by your employer concerning

  • Promotion Were you unfairly denied a promotion? This could include discriminatory promotion decisions, unfair processes, or being unjustly overlooked. Remember, a true promotion involves a significant jump in pay, status, responsibility, and job security – not just a new title.
  • Demotion Have you been unfairly demoted? This means a real reduction in your pay, responsibilities, or status. A simple title change might not be a demotion if your core job remains the same.
  • Probation Was your probation handled unfairly? This might include excessively long probation periods or unfair assessments during probation. Importantly, disputes about dismissals during probation are treated as dismissal disputes, not ULPs.
  • Training Have you been unfairly denied training opportunities, or is training provided in a discriminatory way? Access to skills development is a key employee right.
  • Benefits Has your employer unfairly reduced or taken away benefits you were entitled to, like allowances, bonuses, or other perks of your job?
  • Unfair Suspension Were you suspended unfairly as a disciplinary measure? While employers can suspend employees pending investigation if justified and fair procedures are followed, disciplinary suspensions themselves must also be fair. Suspensions without pay as punishment are also carefully scrutinized.
  • Unfair Disciplinary Actions (Short of Dismissal) Have you received unfair warnings (verbal, written, final written) or other disciplinary measures that didn't result in you losing your job? Even actions short of dismissal can be challenged as ULPs if unfair.
  • Failure to Reinstate or Re-employ Did your employer break a promise or agreement to reinstate you after retrenchment or re-employ you in a similar role?
  • Occupational Detriment (Whistleblowing Protection) Have you faced negative consequences at work (other than dismissal) for making a "protected disclosure" – essentially, for whistleblowing about illegal or unethical conduct in the workplace under the Protected Disclosures Act?

Important Points to Remember About Unfair Labour Practices

  • Only Employers Commit ULPs Employees cannot commit ULPs against employers.
  • Action Must Have Occurred A ULP claim requires an unfair act or omission to have already happened. A threat or intention to act unfairly isn't enough on its own.
  • Pay Disputes - Usually Not ULPs Disagreements specifically about your basic wage or salary are generally not handled as ULPs. These are usually dealt with under laws like the Basic Conditions of Employment Act or through wage-regulating mechanisms. However, there are exceptions:
  • National Minimum Wage Act It is a ULP if an employer unfairly changes your working hours or other conditions specifically to avoid complying with the National Minimum Wage.

Do You Have an Unfair Labour Practice Claim?

If you believe your employer has acted unfairly in one of the areas listed above, you might have a valid ULP claim.  Remember:

You Must Prove Unfairness As the employee, it's your responsibility to show that your employer's actions were unfair. This could mean proving their conduct was unreasonable, discriminatory, or didn't follow fair procedures.

  • Examples of Situations That Could Be Unfair Labour Practices
    • Promotion Your employer promotes everyone who passed a certain test except you and a few others in your team, without giving any valid, non-discriminatory reason.
    • Benefits Your company provides a transport allowance to all employees in your grade level except you, and it seems based on discriminatory reasons (e.g., race, gender).
    • Suspension You are suspended for an unreasonably long period, or for a reason that is clearly unfounded and unfair, causing you detriment.
    • Reinstatement You were retrenched, but your employer agreed to reinstate you if a position became available, and now they are refusing to honor that agreement despite vacancies.
    • Demotion You are suddenly demoted without any proper consultation, fair process, or valid justification related to your performance or operational needs.

What to Do If You Suspect an Unfair Labour Practice

  • Internal Grievance (First Step) Start by formally raising your concern within your company. Follow your company's internal grievance procedures, if they exist. Document everything in writing.
  • Refer to the CCMA or Bargaining Council (If Internal Process Fails) If your internal grievance doesn't resolve the issue, you have the right to refer a formal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) or the relevant Bargaining Council for your industry. Time Limit is Crucial: You must refer the dispute within 90 days of the unfair act happening, or within 90 days of when you became aware of it.
  • Conciliation First The CCMA/Bargaining Council will first attempt to resolve the matter through conciliation, a mediation-like process.
  • Arbitration if Conciliation Fails If conciliation is unsuccessful, the matter will proceed to arbitration. An arbitrator will hear evidence from both sides and make a binding decision.

Possible Outcomes (Remedies) if a ULP is Found

If the CCMA or Bargaining Council rules in your favour and finds that an unfair labour practice occurred, they can order your employer to take various actions to remedy the unfairness, including:

  • Compensation Payment to you for financial losses or emotional distress suffered as a result of the ULP.
  • Reinstatement In cases of unfair suspension or demotion, the employer may be ordered to restore you to your previous position or status.
  • Corrective Action The employer may be ordered to take specific steps to fix the unfair practice, such as providing you with the denied training or benefits.
  • Whistleblower Protection – The Protected Disclosures Act
    • It's important to know that the Protected Disclosures Act offers specific protection for employees who "blow the whistle" on illegal or unethical activities in their workplace. If you face negative consequences (detriment) at work for making a protected disclosure, this can also be challenged as an Unfair Labour Practice.

Aucamp Attorneys: Protecting Your Rights and Ensuring Fair Workplaces

Unfair Labour Practices can have a significant impact on your career and well-being.  Whether you are an employee facing unfair treatment, or an employer wanting to ensure your practices are fair and legally compliant, Aucamp Attorneys provides expert legal advice and representation.

  1. For Employees We can assess your situation, advise you on your rights, assist with internal grievance procedures, and represent you at the CCMA or Bargaining Council to fight for fair treatment and appropriate remedies.
  2. For Employers  We can help you develop and implement fair labour practices, review your policies to ensure legal compliance, and represent you in ULP disputes, minimizing your risk and fostering a fair and productive work environment.

Don't face unfair treatment alone. Contact Aucamp Attorneys today for a consultation to discuss your Unfair Labour Practice concerns and ensure your rights are protected.