The Labour Relations Act 66/1995 Section 185 and 186 identifies a variety of employment practices which are regarded as unfair. In order to succeed in a claim for unfair labour practice an employee must prove that the alleged unfair act falls within the definition of an unfair practice.
Section 185 states that every employee has the right not to be unfairly dismissed as well as not to be subjected to unfair labour practice. Dismissals are excluded as a form of unfair labour practice
Section 186 states that a dismissal and unfair labour practice means any unfair act or omission that arises between an employer and an employee or job applicant.
1) That an employer has terminated employment with or without notice.
2) An employee employed in terms of a fixed term contract of employment reasonably expected the employer to renew a fixed term contract on the same or similar terms but the employer offered to renew it on less favourable terms or did not renew it, or retain the employee in employment on an indefinite basis but otherwise on the same or similar terms as the fixed term contract, but was offered to retain the employee on less favourable terms, or did not offer to retain the employee.
3) An employer refused to allow an employee to resume work after she took maternity leave in terms of any law, collective agreement or her contract of employment.
4) An employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another.
5) An employee terminated employment because the new employer, after a transfer in terms of section 197 or 197A provided the employee with conditions or work substantially less favourable to the employee than those provided by the old employer.
2) Unfair labour practice means:
1) Unfair conduct by the employer relating to the promotion, demotion, probation, or training of an employee or relating to the provision of benefits to an employee.
This usually involves cases where the employer deviates from its own promotion or training policy or where the employee alleges that the promotion, demotion or training is in itself unfair.
Examples are If it is for instance alleged that the failure to promote, is a result of discrimination, where all the employees pass a test and all except one or a few are not promoted. On benefits would be when all employees are given transport allowances, but one is discriminated against and not given the allowance. On training,it would be, if all employees were given training but for one or two, for no apparent fair reason, are excluded from the training – the employer,may be guilty of unfair conduct against those employees.
The Act explicitly excludes from the definition dismissals for reasons relating to probation. Dismissals relating to probation should be dealt with in terms of Schedule 8 of the LRA Act.
2) The unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee.
Employees would refer a dispute relating to the unfairness of disciplinary measures taken, based on the merits of their innocence in the alleged wrongdoing. Suspension pending a disciplinary enquiry, must always be on full pay. A dispute regarding unfair suspension may be referred as an unfair labour practice if the suspension is for an unreasonable long period with no plausible reason for the delay in finalising the enquiry. Another example of unfair suspension would be if an employee and supervisor argue and the employer suspends only the employee, even though it was the supervisor who was to blame.
Non-payment of suspension isnot an unfair labour practice and must be referred to the Dept. of Labour as this relates only to benefits and not salary. However suspension as an alternative to dismissal,as a disciplinary sanction, is the only instance where suspension can be unpaid
3) Afailure or refusal by an employer to reinstate or re-employee in terms of any agreement.
This unfair labour practice requires an agreement to have been in existence (verbal, written, individual or collective). An example will be when there was an agreement between an employer and a retrenched employee that the employee will be re-employed when a vacancy becomes available and the employer does not re-employ the employee
4) An occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act No 26 of 2000, on account of the employee having made a protected disclosure defined in the act.
An example is when an employee makes a disclosure regarding the conduct of an employer as he has reason to believe that the information shows that the employer is committing a criminal offence, and is thereafter prejudiced for making such disclosure by being demoted.
All disputes about forms of unfair treatment may be referred firstly to conciliation conducted by a bargaining council and if there is no bargaining council, by the CCMA, if the dispute remains unresolved it can be referred to arbitration. Section 191 states that an employee has 90 days from date of act or omission, or if it is a later date, within 90 days of the date which the employee became aware of the act occurrence.
Unfair discrimination, direct or indirect, is dealt with under the Employment Equity Act and examples of this are – race, gender, ethnic or social origin, colour sexual orientation, age and disability. These disputes are referred to the Labour Court.