What is an unfair labour practice?
Unfair labour practice occurs when an employee or job applicant gets treated unfairly by an employer. The Labour Relations Act (LRA) defines several unfair labour practices and treatment that may constitute an unfair labour practice.
Every employee has the right not to be subjected to an unfair labour practice.
An unfair labour practice means any unfair act or omission that arises between an employer and an employee, involving:
- 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
- the unfair suspension of an employee or any other disciplinary action short of dismissal in respect of an employee
- the failure or refusal of an employer to reinstate or re-employ a former employee in terms of any agreement
- 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.
Unfair conduct relating to promotion, demotion, training or benefits
This occurs when the employer deviates from the policy on promotion or training, or if the employee alleges that the promotion, demotion or training is unfair. If all employees pass a test and all except one or a few are promoted, the employer may be guilty of unfair conduct against that /or those employees.
If it is alleged that the failure to promote is due to discrimination, an employee can refer the dispute to the Employment Equity Commission.
An example of unfair conduct related to workplace benefits would be when all except one of the employees are given a transport allowance. An example of unfair conduct relating to training would be if all employees were given training but for one or two, for no apparent or fair reason like that they already have the skills. These may constitute unfair labour practices.
Unfair sanction or disciplinary action
An employee can dispute the fairness of a disciplinary measure based on their innocence in the alleged wrongdoing. An employee can be suspended without pay in a disciplinary sanction, but not when the suspension is pending an enquiry.
An employee who is suspended without pay pending a disciplinary enquiry can refer a salary dispute at the Department of Employment and Labour. Such a non-payment dispute is not regarded as unfair labour practice because it is not a benefit.
A suspension becomes an unfair labour practice if the employee is on suspension for an unreasonably long period and there is no plausible reason for the delay in finalising the enquiry. An example of unfair suspension is when an employee is the only one suspended after an argument with a supervisor who was responsible for the altercation.
Refusal by an employer to reinstate a former employee in terms of any agreement
An agreement (verbal, written, individual or collective) must be in place for this kind of unfair labour practice that’s common during retrenchment cases. For example, when an agreement exists between the employer and a retrenched employee to the effect that the employee will be re-employed when a vacancy becomes available and the employer does not re-employ the employee, it may constitute an unfair labour practice on the part of the employer.
The dispute can be an unfair dismissal based on operational requirements if an agreement does not exist
Unfair treatment creating an occupational detriment for an employee who made a protected disclosure
If an employee makes a protected disclosure and is thereafter prejudiced for making the disclosure, for example, by being demoted, it would constitute an unfair labour practice.
Referring unfair treatment disputes
All disputes on unfair treatment are referred for conciliation by a bargaining council or the Commission for Conciliation, Mediation and Arbitration (CCMA). Unresolved disputes after conciliation are referred for arbitration.
When to refer an unfair labour practice dispute
According to Section 191 of LRA, the employee has 90 days from the date of the act or omission which allegedly constitutes an unfair labour practice to refer the matter, or if it is a later date, within 90 days of the date which the employee became aware of the act occurrence.
Relevant laws
- Labour Relations Act
- Employment Equity Act
This article is adapted from the CCMA information kit.
