This is a complete guide to Unfair Labour Practice in South Africa.
In this guide you will learn:
- What is regarded as an “Unfair Labour Practice” in South African Law
- How to refer an Unfair Labour Practice to the CCMA or Bargaining Council
- How to handle Workplace Discrimination legally
- Lots more
Let’s get started.
Introduction
Hello and welcome. My name is Aslam Moolla and I am a registered Attorney at the National Legal Practice Council (Registration number 65753).
My team and I organised this guide to help you understand the CCMA process for Unfair Dismissal.
The practical steps are as follows:
- Go through the guide.
- After going through the guide – select which steps you will start on immediately for your case.
- If there are forms to fill in – fill them in – to get your case heard.
At the end of this process, we hope that you will be feeling more confident about where to get help. If you still require assistance on what to do, please reach out to us, and we will help you as much as we can.
What is an “Unfair Labour Practice”
Section 185 of the Labour Relations Act states that “every employee has the right not to be subjected to an unfair labour practice.”
As the name implies, an unfair labour practice is unfair treatment by an employer of an employee or a job applicant.
There are a limited number of unfair labour practices that the Labour Relations Act defines, the types of treatment, which may constitute an unfair labour practice, are discussed below.
WHAT ARE THE TYPES OF UNFAIR LABOUR PRACTICES?
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.
Each one will now be fully explained in detail below
UNFAIR CONDUCT RELATING TO PROMOTION, DEMOTION, OR BENEFITS
This occurs when the employer deviates from its own promotion policy or where the employee alleges that the promotion, demotion is in itself unfair.
If it is alleged that the failure to promote is a result of discrimination, this dispute must be referred to as unfair discrimination.
An example of unfair conduct based on benefits would be when all employees are given special allowances, but one is discriminated against and not given this allowance. This may constitute an unfair labour practice.
UNFAIR SANCTION OR DISCIPLINARY ACTION
If a person has been unfairly dismissed, then he must refer an unfair dismissal case to the CCMA – not an unfair labour practice case.
But if an employee is on suspension (for whatever reason), that employee can approach the Department of Labour as a non-payment of salary dispute.
It is not regarded as an unfair labour practice dispute as this definition relates only to benefits and not salary.
A dispute regarding the unfair suspension may be referred as an unfair labour practice if the employee is on suspension for an unreasonably long period and where there is no plausible reason for the delay in finalising the enquiry.
According to the CCMA, an example of unfair suspension would be where an employee and her supervisor argue and the employer suspends only the employee, even though it was the supervisor who was to blame.
REFUSAL BY AN EMPLOYER TO REINSTATE FORMER EMPLOYEE IN TERMS OF ANY AGREEMENT
According to the CCMA, this type of unfair labour practice requires an agreement to have been in existence (verbal, written, individual or collective).
Usually these disputes arise in retrenchments situations. If there is no agreement, then the dispute may be referred as an unfair dismissal based on operational requirements.
An example will be when there was an agreement between the employer and a retrenched employee that the employee will be re-employed when a vacancy becomes available and the employer does not re-employ that employee, the conduct on the part of the employer may constitute an unfair labour practice.
HOW TO REFER AN UNFAIR LABOUR PRACTICE TO THE CCMA OR BARGAINING COUNCIL
All the disputes about forms of unfair treatment may be referred firstly to conciliation conducted either by a bargaining council, and if there is no council, by the CCMA.
If the dispute remains unresolved after conciliation, then the case must be referred for arbitration
VERY IMPORTANT: THERE ARE TIME PERIODS TO REFER A CASE FOR UNFAIR LABOUR PRACTICE
Section 191 states that the employee has 90 days from the date of the act or omission which allegedly constitutes an unfair labour practice or, if it is a later date, within 90 days of the date which the employee became aware of the act occurrence
Actionable step:
Check the time periods above – do you comply? Or are you out of time?
If you are out of time (meaning more than 90 days have passed since the incident) then you can still refer your case to the CCMA. But you will have to file a condonation application as well.
A condonation application is basically an affidavit which explains why you were out of time and you are asking the CCMA to condone your late behaviour.
We get a lot of queries from our clients regarding workplace discrimination and whether that qualifies as an unfair labour practice.
While we on this topic, lets explore that.
WHAT IS DISCRIMINATION
Discrimination is to show favour, prejudice or bias for or against a person on any arbitrary grounds.
What are examples of arbitrary grounds:
Examples would be, if the company had to discriminate between 2 people on:
- The basis of race,
- gender,
- sex,
- pregnancy,
- marital status,
- family responsibility,
- ethnic or social origin,
- skin colour,
- sexual orientation,
- age
- disability,
- religion,
- HIV status,
- conscience,
- belief,
- political opinion,
- culture,
- language and
- birth
If the company discriminated against a person on any one of the above grounds, that would be regarded as discrimination.
BUT, HOLD ON….
There are two types of workplace discrimination:
Fair discrimination at work
Unfair discrimination at work
Let us start with Fair discrimination at work
The law sets out four grounds on which discrimination is generally allowed—
- Discrimination based on affirmative action;
- Discrimination based on inherent requirements of a particular job;
- Compulsory discrimination by law; and
- Discrimination based on productivity.
Let us explain each one in more detail for you:
DISCRIMINATION BASED ON AFFIRMATIVE ACTION
Affirmative action measures are designed to promote employment equity in favour of the designated groups — blacks, women and disabled persons.
Its main aim is generally to ensure that that the previously disadvantaged groups are fairly represented in the workforce of a particular employer
.
Discrimination done for these reasons will be considered as fair.
DISCRIMINATION BASED ON INHERENT REQUIREMENTS OF A JOB
Any discrimination based on the inherent requirement of the particular job does not constitute unfair discrimination.
An inherent requirement of a job depends on the nature of the job and required qualifications. If such requirements can be shown, discrimination will be fair.
An example is that a person with extremely poor eyesight cannot be employed as an airline pilot.
Discrimination done for these reasons will be considered as fair.
FAIR COMPULSORY DISCRIMINATION BY LAW
The law does not allow the employer to employ children under the age of 15 years, or pregnant women four weeks before confinement and six weeks after giving birth.
Discrimination done for these reasons will also be considered as fair.
DISCRIMINATION BASED ON PRODUCTIVITY
In addition to the examples above, it is also fair for the employer to discriminate on the basis of productivity when giving an increase.
In other words, employees that perform their work get better incentives.
WHAT IS UNFAIR DISCRIMINATION
Any employer’s policy or practice showing favour, prejudice or bias against employees in terms of: race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth by an employer and which is not fair can be deemed to be unfair discrimination.
There are two forms of discrimination related to ‘unfair discrimination’, namely— Direct discrimination; and Indirect discrimination.
Direct discrimination is easily identifiable and involves overt differential treatment between employees and job applicants on the basis of arbitrary grounds.
For example an employer follows a policy of remunerating a female employee on a lower scale simply because she is a woman, whereas a male employee is remunerated at a much higher scale for doing the same work.
Indirect discrimination, on the other hand, is not as easily recognisable as it is a more subtle form of discrimination.
It involves the application of policies and practices that are apparently neutral and do not explicitly distinguish between employees and job applicants but that, in reality, have a disproportionate and negative effect on certain individuals or groups.
STEPS TO TAKE WHEN UNFAIR DISCRIMINATION AT WORK TAKES PLACE
Step 1: Lodge a grievance with your employer
Any employee who feels that he has been unfairly discriminated against or that an employer has contravened the laws can lodge a grievance in writing with their employer.
Step 2: If the grievance is not resolved, then refer your case to the CCMA
The matter can thereafter be referred to the CCMA within six months where the issue cannot be resolved at the workplace.
If the CCMA is not able to resolve the dispute through conciliation, the matter can either be referred for arbitration (if both parties agree) or to the Labour Court for adjudication.
Frequently Asked Questions regarding Unfair Labour Practice
What about non-payment of salary?
The solution is to send a Letter of Demand to the employer – demanding that the salary be paid.
Thereafter employees must claim the unpaid salary via the Small Claims Court provided the outstanding salary does not exceed R20 000.
The Small Claims Court is free of charge, no legal representation is allowed and the authority of its order is equal to that of a Magistrate’s Court. Visit the Magistrate’s Court in your area and speak to the Clerk regarding the Small Claims Court.
How much of time do you have to claim your unpaid salary?
In our law there is a principle called prescription. This basically means that any monetary claim becomes invalid within 3 years since payment/ acknowledgement of the debt provided no legal action was instituted.
For example your unpaid January 2017 salary will prescribe in January 2020. After January 2020 your employer can raise the defense of prescription and you will lose the money owed to you.
Contact us and we will help you claim this money. Click here to make an appointment.
What is the compensation for unfair Labour practice?
This depends on the case that you have and what claim you will be instituting.
What are examples of discrimination at work?
When your employer treats another employee unfairly because of any one of the following: race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth. If the employer cannot justify it, then it would be unfair.
Is racial discrimination allowed?
To differentiate employees on their basis of their race is not allowed except if it was for affirmative action or as discussed above.
Good work. We covered
- An explanation for what makes an unfair labour practice
- The common types of unfair labour practices faced by our clients
- How to report your unfair labour practice case to the CCMA
Essentially your preparation is now complete. You have all your bases covered.
We believe that the better prepared you are – the better chance you will have of succeeding in your case at the CCMA.
If you have a question or topic that you want us to cover, send us an email on ______. Please keep it to 3-4 paragraphs detailing your situation.
We get a lot of emails from the internet and from our paying clients, so please give us a few days to respond. Please be patient and we will get back to you.
However, if you want help immediately you can purchase a paid consultation session with a certified labour lawyer.
Our lawyers are proven experts in Labour Law – from handling Unfair Dismissal cases, to challenging retrenchments, they have a winning track record at the CCMA and the Labour Court. You can setup your consultation by clicking below.
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Now we would like to hear from you
Conclusion
We hope you found this Unfair Labour Practice guide helpful.
Now we would like to hear what you have to say:
Which tip from today’s post do you want to try?
Are you going to challenge for unfair labour practice?
Or maybe you are a business owner that has a question.
Either way, let us know by leaving a comment below right now.
