The workplace can be an inspiring and fulfilling space, and bosses and managers can serve as effective mentors for employees who want to develop in their respective careers. However, there are also many instances of people in senior roles abusing their power, discriminating against and treating employees unfairly. Fortunately, South African labour laws offers protection and as the Labour Relations Act points out- “every employee has the right not to be subjected to an unfair labour practice.”
What defines an unfair labour practice?
Before an employee claims that they have been subjected to an unfair labour practice, it is important to understand what an unfair labour practice actually is. Essentially, an unfair labour practice is any discriminating or deceitful act or omission that occurs between an employer and an employee. Then, of course, the employee must prove the employer’s conduct falls under one or more of the following examples laid out by the Department of Labour:
• The unfair conduct of the employer relating to the promotion, demotion or training of an employee or relating to the provision of benefits to an employee. For example, if a company deviates from its usual promotion policy and denies an employee a promotion based on race, gender or sexual orientation, then the dispute can be referred to the Employment Equity Commission. The employee has to prove that the allegation is correct and, for instance in cases of being overlooked for promotion, the employee has to show that there is no satisfactory explanation from the employer as to why that employee has not been promoted.
If employment benefits aren’t applied fairly or if certain employees aren’t given the opportunity to take advantage of a training initiative, then these can also be regarded as unfair labour practices. Likewise, a demotion without the employee’s consent can be unfair. The employee must have been in the actual post and the demotion must not just be evidenced by a slight change of the work or a change of the title. In many cases, demotions are used by employers to avoid retrenchments or to accommodate the actual employee.
• The unfair suspension of an employee or any other disciplinary action short of dismissal in respect of an employee. The suspension of an employee must be done fairly and properly in terms of the legislation. There must be a good reason and a proper procedure followed. If an employee is suspended for an unreasonably long period and where there is no plausible reason for the delay in finalising the disciplinary enquiry, then this would constitute an unfair labour practice. If a worker believes they were suspended unfairly, then this is also a case for discrimination. Again, the employees have to show that they were suspended for improper reasons and without proper procedure. In certain circumstances an employee may in fact go to the Labour Court directly if they believe the suspension is both unfair and has created an urgent situation.
• The failure or refusal of an employer to reinstate or re-employ a former employee in terms of any agreement. An example would be if an employer and employee have an agreement in place that states an employee would be re-employed after retrenchment if the same vacancy becomes available after retrenchment, and isn’t reinstated to their previous role.
• An occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000, on account of an employee having made a protected disclosure as defined in that Act. The Protected Disclosures Act No 26 of 2000 is specifically legislated in order to protect employees who want to or need to disclose information with regard to the commission of crime or any unfair discrimination and conduct detrimental to the health and safety of other employees. If an employee comes forward and discloses that they think a colleague is engaging in criminal activity and is prejudiced against as a result, then this would constitute an unfair labour practice.
• Unfair dismissals. When it comes to firing employees, employers and companies also have to follow the law to the letter. There are basic employment rules and procedures that govern the process for a dismissal to be fair and legal.
How to deal with unfair labour practices at work
It’s recommended to try and resolve any issue via the internal company structures first. This could be approaching a manager or supervisor, or setting up a meeting with the Human Resources department. It’s important to formalise a complaint by putting it in writing- that way you have proof that the issue was raised.
If all internal company procedures have been exhausted, then it must first be referred to the relevant bargaining council, and if there is no council, then to the Commission for Conciliation, Mediation and Arbitration (CCMA). Unfair labour practices must be referred to the CCMA within 90 days of the alleged practice taking place.
How to serve and file the CCMA referral form
According the South African Labour Guide: The completed CCMA referral form must first be sent to the other party. This can be done by handing a copy of the form to the other party; by faxing the form to the other party; or by sending a copy of the form to the address of the other party by registered mail.
When filing the referral form with the CCMA, proof that you have sent the form to the other party must be attached. This proof can consist of a copy of the receipt signed by or on behalf of the other party, which must include the name and title of the person who received the form and the place, time and date of receipt (if it was hand delivered).
When the notice is faxed a copy of the fax transmission report showing that all the pages of the form were faxed to the other party can be used. If sent by registered post a copy of the registered mail slip is sufficient proof.
On receipt of the case the CCMA will schedule a hearing date and both parties will be advised of the hearing date in writing. The dispute will initially go through conciliation
a process where a commissioner meets with the parties in dispute, and explores ways to settle the dispute by agreement. At conciliation a party may appear in person or only be represented by a director or employee of that party or any member, office bearer or official of that party’s registered trade union or registered employer’s organisation. The meeting is conducted in an informal way.
If that fails, the next step will be arbitration. At an arbitration hearing, a commissioner gives both parties an opportunity to fully state their cases. The commissioner then makes a decision on the issue in dispute. The decision, called the arbitration award, is legally binding on both parties.
Need legal assistance to help resolve an unfair labour practice dispute?
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