LLW2601 - STUDY UNIT 4

UNFAIR LABOUR PRACTICE

PART 2
MM Mulaudzi
 UNFAIR LABOUR PRACTICE RELATING TO PROVISION OF
BENEFITS
• ULP relating to the provision of benefits may result from conduct of an employer who acts
unfairly in conferring, withdrawing or withholding benefits.
• The types of benefits contemplated by this provision are house allowance, travel
allowance, medical aid, discretionary bonuses, etc.
• The LRA does not provide a definition of ‘benefit’;
• The interpretation given to this term by the courts and arbitrators are quite narrow; and
• There is confusion when a dispute about a benefit will amount to a ‘right’ dispute or an
‘interest’ dispute.
• A dispute regarding ULP should amount to a dispute of right.
• A dispute regarding remuneration should amount to a dispute of interest.
- Schoeman v Samsung Electronics SA (Pty) Ltd (1997) 10 BLLR 1364 (LC)
- United Association of South Africa obo Members and De Keur Landgoed (Edms)
Bpk ( 2014) 7 BALR 738 (CCMA)
 UNFAIR LABOUR PRACTICE RELATING TO PROVISION OF
BENEFITS - Continued
- Apollo Tyres South Africa (Pty) Ltd v CCMA & Others (2013 )5 BLLR 434 (LAC)
In the Apollo case the court had to determine what constitutes a benefit and if a benefit is
limited to an entitlement which arises ex contractu or ex lege. The court found that the early
retirement scheme was a benefit, although the employee at that stage did not have a
contractual entitlement to the benefit and that the benefit was subject to the employer's
discretion. What becomes clear from this case is that the unfair labour practice jurisdiction
cannot be used to assert an entitlement to new benefits, new forms of remuneration or new
policies. The Labour Appeal Court criticizes the distinction between salaries and
remuneration drawn by our courts and describes it as artificial and unsustainable. Under
the unfair labour practice regime the conduct of the employer may be scrutinized by the
CCMA in at least two instances, namely when an employer fails to comply with a
contractual obligation, an entitlement or right that an employee may have in terms of a
statute, and secondly when an employer exercises a discretion under the contractual terms
of a scheme conferring a benefit, including situations where the employer enjoys a
discretion in terms of benefits provided in terms of a policy or practice – rights created
judicially. This decision places the emphasis on the employer's actions and the unfairness
of such acts or omissions.
 UNFAIR LABOUR PRACTICE RELATING TO SUSPENSION
PRECAUTIONARY OR PREVENTATIVE SUSPENSION
Precautionary suspension could be implemented to
allow an employer to investigate the alleged
misconduct of an employee, and to decide whether
disciplinary action should be taken against the
employee.
Suspension is with pay unless the employee agrees to
suspension without pay, or a law or collective
agreement authorises unpaid suspension
PUNITIVE SUSPENSION
Suspension could be an alternative to a sanction of
dismissal in an attempt to correct the behaviour of the
employee. It can be seen as a form of progressive
discipline where appropriate.
Punitive suspension is without pay.

- Sappi Forests (Pty) Ltd v CCMA & Others (2009) 3 BLLR 245 (LC)
• An employee should not be suspended unless:
- There is a prima facia reason to believe that the employee has committed serious misconduct; and
- there is some objectively justified reason for excluding the employee from the workplace.
 SELF-STUDY pages 84-86 para 8 Labour Law Rules! 4ed (2021)
UNFAIR LABOUR PRACTICE RELATING TO OCCUPATIONAL
DETRIMENT – PROTECTED DISCLOSURE
• The Protected Disclosure Act regulates the disclosure by employees of information on
suspected criminal and other improper conduct by the employers and co-employees.
• The employee would have to prove the following in order to qualify for the protection of
the PDA:
- The employee should have made a protected disclosure.
- The employer should have taken some retaliating action against the employee which
amounts to the employee suffering an occupational detriment.
- The detriment suffered should be on account of making the protected disclosure. There
must be a casual link.
- Tshwane Metropolutan Muncipality v Engineering Council of SA & another (2010) 31 ILJ
322 (SCA)
 SELF-STUDY pages 86 - 88 paras 10.1 – 10.3.2 Labour Law Rules! 4ed (2021)
 SELF-STUDY page 86 para 9 Labour Law Rules! 4ed (2021) - UNFAIR LABOUR PRACTICE
RELATING TO REFUSAL TO REINSTATE OR RE-EMPLOY AN EMPLOYEE