Unfair Labour Practice as defined by the LRA
Unfair Labour Practice denotes any unfair treatment in the workplace between an employer and an employee involving:
a) The unfair suspension of an employee or any other unfair disciplinary dismissal in respect of an employee;
b) 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;
c) A failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and
d) An occupational detriment, other than dismissal, in contravention of the Protected Disclosure Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in the Act.
An employee must validate that the unfair act falls within the definition of an unfair labour practice.
Unfair Labour Practice relating to promotion
Many arguments arise in the workplace regarding promotion to an existing post, perhaps upon retirement or resignation of the existing incumbent, or even to a newly created post.
Most employees are of the opinion that because they are already employed by the employer, or because they are already employed in that particular department, or have a number of years experience in the post just below the vacant post, that they are entitled to be promoted, or that they have an entitlement to receive preference above any other applicants. They often feel therefore that it is unfair practice when the dont get the position
This is not so. An employee does not have any legal entitlement to be promoted to a higher post, therefore it cannot be seen as unfair labour practice. If there are conditions contained in the employment contract regulating promotion, then of course the employee could make a claim in terms of those conditions.
Employers are perfectly free to choose who they will appoint to any vacant post, whether it is a promotion or not. So this should not be seen as unfair practice
For more information contact Bernard Reisner:
W.Tel no.: 021-423-3959
Cell: 082-433-8714
Fax: 021-4232105
E-mail: bernard@capelabour.co.za
Website: www.capelabour.co.za
FAQs
What should I do if I believe I am a victim of unfair labour practice?
If you believe you have experienced unfair labour practice, it is essential to document the incidents and gather any relevant evidence. You may consider discussing the issue with your employer or HR department. If the matter remains unresolved, seeking legal advice or contacting a labour consultant may be beneficial to explore your options.
What is the role of the Protected Disclosure Act in unfair labour practices?
The Protected Disclosure Act safeguards employees who make protected disclosures from occupational detriments. If an employee faces negative consequences for reporting wrongdoing or misconduct, this may constitute an unfair labour practice. Employees are encouraged to understand their rights under this Act to protect themselves.
What should I know about the process of making a claim for unfair labour practice?
When making a claim for unfair labour practice, it is crucial to understand the specific grounds for your claim. Gather evidence, including documentation and witness statements, to support your case. You may need to follow internal grievance procedures before escalating the matter to external bodies or seeking legal action. Consulting with a labour expert can provide guidance throughout this process.
Can an employee claim entitlement to a promotion?
No, employees do not have a legal entitlement to be promoted simply based on their current employment or experience. While many believe they should receive preference for promotions, employers have the discretion to choose candidates for vacant posts. If specific conditions regarding promotions are outlined in an employment contract, employees may have grounds for a claim based on those terms.