Chapter 6

Unfair labour practices

INTRODUCTION

• Not all conduct by employer considered to be unfair will be will constitute an unfair
labour practice (ULP) – and that the employee will have a remedy.

• There is a closed list of unfair labour practices in the LRA – employees can only
refer to the CCMA unfair labour practices that are mentioned in the list.

• ULPs do not focus on the end of the employment relationship, but rather what the
employer does in respect of the employee’s working life, during the course of the
of employment relationship.

• Therefore, an unfair dismissal is something seperate from an unfair labour practice.

DEFINITION OF UNFAIR LABOUR PRACTICE

Section 186(2) of the LRA defines an unfair labour practice as follows:

“Unfair labour practice means any unfair act or omission that arises between an
employee and employer 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;
(b) the unfair suspension of an employee or any other unfair disciplinary action short of
dismissal in respect of 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
Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a
protected disclosure defined in that Act.”
Unfair conduct relating to promotion

• A move by an employee from one job to another qualifies as a promotion if there

is an existing relationship, and if the new job is higher in status, carries more
responsibilities or authority, or entails higher wages or benefits.

• A transfer – at the same level – from one department to another is not a

promotion.

• If employees apply for higher status positions that the employer advertises
externally – non-appointment of the applicant employee will be regarded non-
promotion – and possibly an ULP provided that the non-promotion was in fact
unfair.

• However, where employees do not apply for a new position – cannot afterwards
bring a claim of an ULP on the basis of non-promotion.
• Since the decision to promote or not falls within the discretion of the employer –
employee will only be successful in proving that the employer’s failure to promote
him/her is substantively unfair if:

 the decision not to appoint was based on an arbitrary reason;

 the decision not to appoint was taken capriciously – impulsively;

 the decision not to appoint was taken frivolously – not seriously;

 the decision not to appoint was taken in a biased manner.

• Employer commits an ULP relating to promotion if a person who does not meet the
minimum requirements as advertised is appointed – while an employee who meets
the minimum requirements is overlooked.

• Also, an ULP is where a selection panel recommends a candidate who achieved

lower scores than the unsuccessful candidate and the panel does not advance
reasons for their decision.
• Part of managerial prerogative to re-advertise post without interviewing employees
who applied

• Can court order employer to promote employee who was not promoted unfairly?

• If appointment already made, then order employee to be paid at higher scale,

but only if can show that ULP is most probably the reason for non-
appointment in the higher post
Unfair conduct relating to demotion

• Demotion is the opposite of promotion – employee is reduced to lower rank, class

or category.

• Unfair demotion is an ULP.

• A unilateral change of terms and conditions of employment can be breach of

contract, but employer can change t’s and c’s, provided it is not totally new
employment contract

• A lowering of status/responsibilities, even if pay & benefits remain the same, can be
demotion and ULP
 Unfair conduct relating to demotion

• Although unfairness relating to a transfer is not a listed ULP – a transfer that has the
effect of changing the terms and conditions of employment – could amount to
demotion.

• A demotion may be fair if its purpose is to avoid a dismissal in circumstances in which

the employer had a valid reason for dismissal based on misconduct, incapacity or
operational requirements (retrenchments).

• CCMA may order an unfairly demoted employee to be reinstated.

Unfair conduct relating to probation

• Unfair conduct of the employer relating to probation – but excluding dismissal of

an employee on probation – constitutes an ULP.

• Purpose of probation = give employer an opportunity to evaluate the employee’s

performances before confirming the appointment.

• Probation may be only used for this purpose and not to deprive employees of
permanent employment status – NB!

• Period of probation must be determined in advance and must be for a reasonable

duration.

• Reasonableness = depends on nature of job and time it takes to determine the

employee’s suitably for continued employment.
• Employee’s performance should be assessed during the probationary period.

• If employer is not satisfied with employee’s performance – employer should give

the employee reasonable evaluation, instruction, training, guidance or counselling
in order to allow the employee to render satisfactory service.

• If the employee’s performance does not improve – employee may be dismissed or

the probationary period may be extended.

• Before the employer dismisses the employee – employee must be allowed to make
representations.

• Employee must be given sufficient time to improve before the employer proceeds
with dismissal.
The following types of conduct by the employer may be regarded as ULPs relating to
probation:
 The employer has not come to an agreement with the employee about the
length of the probationary period at the commencement of employment.

 The period of probation in relation to the nature of the work is too long.

 No assessment, instruction, training, guidance or counselling has been

conducted by the employer before the probationary period is extended.

 The probationary period is extended in circumstances in which it is clear that

the purpose of the extension is not to evaluate the employee’s performance.

 The period of extension in the particular circumstances is disproportionate to

the purpose of evaluating the employee’s performance.

 The employee did not have the opportunity to state a case before the
probationary period was extended.
Unfair conduct relating to training

• If an employer has agreed to provide training to an employee – but no training is

actually provided – employer will be in breach of contract and could also be
regarded as having committed an ULP.

• If the written employment contract (clear no other contract binding between

parties) does not make provision for training – the failure of the employer to train
the employee will not be regarded as an ULP – even though employee gives
evidence that there was such an oral agreement.

• However, if other employees are trained and the employee in question is not
trained for some arbitrary reason – this could be regarded as an ULP, particularly
where the training is a prerequisite for promotion.
Unfair conduct relating to the provision of benefits

• Originally: A dispute regarding benefits could be referred to Arbitration, which was

understood to mean that employees could not strike in these disputes

• This meant that the wider the definition of ‘benefit’ the narrower the right to strike

• This resulted in confusion with definition of ‘benefit’, and remuneration, for

example, was not considered a ‘benefit’, but employer contributions to medical
aid, pension and housing allowances were considered benefits

• Courts held that something will only be considered a benefit if it is not regarded as
remuneration, and there must be a pre-existing entitlement to the benefit arising
out of legislation, a contract or a collective agreement

• Hospersa – case: Extra pay for acting in senior position – court held that only if
employee has a contractual or statutory entitlement to extra pay, is it a dispute of
right which can be the basis of a ULP; a dispute of interest cannot form the basis of
a ULP and be used the create new rights for employees
Unfair conduct relating to the provision of benefits

• The question whether a benefit is only something to which the employee is

contractually entitled to answered in Protekon & Apollo Tyres cases:
• The distinction between benefits and remuneration (wages) makes no sense
• ‘benefit’ should not be limited to entitlements derived from contract or
statute
• If the employer has a discretion to grant benefits, the discretion must be
exercised fairly, and if not the employee can approach the CCMA.

NOTE: If an employer unilaterally and without consultation varies a term or condition

of employment regarding to a benefit – an employee can require the employer to
restore the benefit for a period of least 30 days (conciliation). If the employer persists
in withdrawing the benefit – employee may claim Breach of contract or strike.
Unfair conduct relating to the provision of benefits

What is a dispute of right?

• A dispute of right concerns a claim which the claimant alleges arises from an
employment contract, a collective agreement, a statute or the common law – the
right is pre-existing.

Examples:
• Unfair dismissal disputes – section 185 of LRA
• Unfair labour practice (ULP) disputes – section 186 of LRA

What is a dispute of interest?

• An interest dispute involves a claim by a party for something new or something to
which the party, currently, has no legal right, but would like to have.
• Normally collective bargaining is used to achieve this
Examples:
• Demand for an increase in the number of leave days
• Dispute over a demand to change conditions of employment*
Unfair conduct relating to the provision of benefits

What is a dispute of right?

• A dispute of right concerns a claim which the claimant alleges arises from an
employment contract, a collective agreement, a statute or the common law – the
right is pre-existing.

Examples:
• Unfair dismissal disputes – section 185 of LRA
• Unfair labour practice (ULP) disputes – section 186 of LRA

What is a dispute of interest?

• An interest dispute involves a claim by a party for something new or something to
which the party, currently, has no legal right, but would like to have.
• Normally collective bargaining is used to achieve this
Examples:
• Demand for an increase in the number of leave days
• Dispute over a demand to change conditions of employment
Unfair suspension and unfair disciplinary action

• Unfair suspensions and unfair disciplinary measures are included in the list of ULPs.

• Employers may suspend employees for two reasons:

 As a disciplinary measure – to discipline an employee found guilty of

misconduct.
 As a holding operation – to make sure that the employee is not at the
workplace when there is a pending disciplinary enquiry against the employee
(in this instance - must be on full pay).
• The suspension may be unfair where:
 the employee did not have an opportunity to be heard;
 if the time of the suspension is unreasonably long; or
 if the employer did not adhere to it’s own disciplinary code in regard to
suspensions.
• Where an employee is suspended in order to make sure that the employee is not at
the workplace when there is a pending disciplinary enquiry against the employee
(suspension as a holding operation) – this form of suspension must be on FULL PAY
– otherwise the employer could be in breach of contract.

• If the employee is suspended on full pay, but the employer has no intention of
holding a disciplinary enquiry – this will amount to an ULP – reason: employee’s
reputation and career aspects could be prejudiced.

• In these circumstances, an employee may approach the court to uplift the

suspension until a disciplinary enquiry is held - (Ngwenya v Premier of KZN)

• Suspension on full pay pending a disciplinary hearing could be regarded as fair if

reasonable grounds exist for suspecting that serious misconduct is involved and
there is a probability that the employee will interfere with the preliminary
disciplinary process – for example, interfering with witnesses.
• Suspension as a disciplinary measure after misconduct has been established is
usually WITHOUT PAY – can only be fair where provision is made for such
suspension in the employment contract or the disciplinary code of the employer.

• The employee may also agree to be suspended without pay for a period as an
alternative penalty to dismissal for misconduct.

• Disciplinary action short of dismissal includes warnings, transfers and suspensions.

• Employer must demonstrate that these actions were fair.

• However, a transfer for disciplinary purposes after the employer unsuccessfully

endeavoured to dismiss the employee has also been held to be an ULP.
Failure to reinstate or re-employ in terms of an agreement

• Employer’s failure or refusal to reinstate or re-employ a former employee in terms

of any agreement is included in the list of ULPs.

• The employee only has to prove breach of an agreement to re-employ.

• This type of ULP is different from others because it implies that the employment
contract has been terminated.

• However, the fact that the was an agreement to reinstate or re-employ indicates
that the employment relationship was not finally terminated.

• Not clear how long after the termination of the employment relationship the
employer will be bound to the agreement – but period must be reasonable.
• This type of agreement is typical in the case of retrenchments. For example,
employer could agree to re-employ retrenched employees should the need arise in
order to appoint additional workers again in the future.
Protected disclosures (whistle-blowing)

• Purpose of Protected Disclosures Act (PDA) is to facilitate the responsible disclosure

of information by employees concerning criminal conduct and other irregular
conduct in the workplace – informally known as “whistle-blowing”.

• If such disclosures show the employer in a negative light – could provoke employer
to dismiss the employee or subject the employee to any other conduct (short of
dismissal) that is detrimental to the employee.

• PDA provides protection to employees who have made a disclosure and who are
subsequently subjected to an “occupational detriment”.

• Unfair conduct by the employer involving an occupational detriment also counts as

an ULP in terms of the LRA.
The PDA defines an “occupational detriment” to include the following:

• disciplinary action, suspension, demotion, being denied promotion, harassment, or

intimidation;

• transfer of an employee against his/her will or refusal of transfer or promotion;

• subjecting an employee to a term or condition of employment that is altered to the

employee’s disadvantage;

• being refused a reference or being provided with an adverse reference;

• being denied appointment;

• being threatened with above-listed actions by the employer;

• being otherwise adversely affected in respect of employment.

• If an employee provides information in good faith – disclosure is made to specified persons in
the PDA – disclosure will qualify as a protected disclosure – employee will be protected
against an occupational detriment.

• The specified persons are:

 The employer;

 A legal advisor;

 Member of Cabinet or a Member of Executive Council (MEC);

 Public Protector;

 Auditor-General; or

 Another prescribed person or body if the improper conduct falls within the description
of matters which, in the ordinary course, are dealt with the person or body concerned.
TIME LIMITS AND REMEDIES

• The LRA provides that a dispute in respect of an ULP may be referred for
conciliation to the CCMA within 90 days of the occurrence of the ULP (or within 90
days the employee became aware of the conduct constituting the ULP).

• If conciliation fails – dispute may be arbitrated at request of employee.

• Arbitrating commissioner has wide powers – may order reinstatement, re-

employment or compensation.

• Compensation limited to 12 months’ remuneration – calculated at the rate of the

employee’s remuneration – must be just and equitable.

• Compensation for demotion or non-promotion is to be calculated on the basis of

the difference between what the employee earned in reality and would have
earned had the ULP not taken place.
• Reinstatement or re-employment – applicable where employee was unfairly
suspended or where the employer agreed to reinstate or re-employ the employee
and later refused to do so.