Definition of Unfair Labour Practice
The Definition of Unfair Labour Practice is any unfair act or omission that arises between an employer and an employee involving
a) Unfair conduct by the employer relating to the 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 labour practices definition includes unfair conduct by an employer relating to the promotion of an employee.
An employee may have a valid complaint if he/she can show that he/she has been overlooked for promotion where he/she possesses experience or qualifications, whilst another person who has been promoted does not possess the experience or qualifications.
An employer is also guilty of unfair conduct relating to promotion if he/she gives an employee a reasonable expectation that he/she will be advanced and then, without adequate reason, reneges on that expectation. It has also been held to be unfair for an employer to advertise a position, setting a prescribed minimum qualification, and then appoints a person who did not possess that qualification.
The demotion of an employee without his/her consent constitutes repudiation of a contract. An employee can then sue for damages (the difference between the salary the employee received after his/her demotion and the salary the employee would have received had no demotion occurred), or obtain an order compelling the employer to restore the employee to the original position.
A demotion occurs if the change to the employee’s terms and conditions of employment are such that they result in a material reduction of the employee’s remuneration, responsibilities or status.
On the other hand, 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.
Probationary employees are accordingly entitled to be counselled regarding any alleged deficiency, to receive instruction and appropriate guidance in order to remedy it.
During the probationary period, the employee’s performance should be assessed and, if necessary, the employee should be given ‘reasonable evaluation, instruction, training, guidance or counselling’. If the employer considers the employee’s performance below standard, the employer should advise the employee of any aspects in which the employer considers the employee to be failing to meet the required performance standards.
If the employer fails to comply with the above, the employee could declare a labour dispute and allege an unfair labour practice.
It is difficult to conceive of what is intended by ‘unfair conduct in relation to training’. At face value, the phrase suggests that an employer is obliged to train its employees. An employer can be held to have acted unfairly by denying an employee training.
The inclusion of conduct in relation to ‘benefits’ greatly extends the potential scope of unfair labour practices against which an employee may claim protection under the LRA.
Falling within the scope of this term are bonuses, housing allowances, medical aid, retirement benefits and other allowances. The employee can challenge the employer during the scope of the employment relationship, if the employer unilaterally retracts any of these benefits or changes any of these benefits to the detriment of the employee.
b) The unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;
Section 186 (2) (b) prohibits the unfair suspension of an employee or other unfair disciplinary action short of dismissal against him/her;
The term ‘suspension’ appears to refer only to suspension imposed as a disciplinary penalty. Instead of dismissing the employee, the employer may impose a sanction of suspension without pay.
On the other hand, it has also been held that suspension becomes unfair if it is imposed for an unreasonable period;
Disputes over warnings also fall within this category.
c) A failure or refusal by an employer or reinstate or re-employ a former employee in terms of any agreement; and
An employee alleging this form of unfair labour practice must prove the existence of an agreement that imposes an obligation on the employer to re-employ him/her in particular circumstances. Such agreements usually require the employer to rehire dismissed employees if and when ‘suitable’ vacancies arise.
Retrenched employees would be given preference for re-employment if suitable vacancies arose. The employer may decline to re-employ retrenched employees because they were not trained for vacancies that arose.
d) An occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 ( Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.
An employee has a duty to disclose information concerning the criminal wrongdoings of the employer to qualify for protection, the disclosure must be in good faith; with the object of the disclosure being the elimination of the wrongdoing and not merely for personal gain; the disclosure must be made to one of the persons specified in the PDA. If the employee is a victim he/she is able to claim compensation.
REMEDIES FOR UNFAIR LABOUR PRACTICES
Like all disputes, those concerning alleged unfair labour practices must first be referred for conciliation at a bargaining council having jurisdiction or, if there is none, to the CCMA. The dispute must be referred for conciliation within 90 days of the date on which the act or omission giving rise to the alleged unfair labour practice was ‘committed’, or within 90 days of the date on which the employee first became aware of that act.
Arbitrators are now expressly authorized to order reinstatement, re-employment or compensation.