To understand the difference between Unfair Labour Practices and Unfair Dismissal, one must first under what is dismissal?
A dismissal, according to Section 196 of the Labour Relations Act, means that:
- There has been a termination of employment by an employer with or without notice
- An employee reasonably expected that an employer would renew a fixed-term contract on the same terms or similar terms. However, the employer offered to renew the fixed-term contract under less favourable terms or refused to renew the fixed-term contract at all.
- The employee was refused permission to return to work after going on maternity leave because she:
- Took maternity leave according to any law, collective agreement, or contract of employment.
- The employee was absent from work for up to four (4) weeks before the expected date of birth, and up to eight (8) weeks after the actual date of the birth of her child.
People come to our firm and complain they have been subjected to unfair labour practices, but in reality they have been dismissed unfairly. So, what is the difference?
The difference between an Unfair Labour Practice, and an Unfair Dismissal, is that an Unfair Labour Practice relates to something ongoing at work. The term Unfair Dismissal refers to the act of being dismissed from work, in other words, the termination of your employment relationship.
What is an Unfair Labour Practice?
In terms of the Labour Relations Act, an Unfair Labour Practice deals with any kind of unfair conduct from the employer to you and this conduct could be in relation to promotion at work demotion, extending your probation unnecessarily, unfair suspension or putting you any kind of treatment that’s unfair compared to other employees.
What are your options when you have an Unfair Labour Practice?
When you have an Unfair Labour Practice you have a right to refer that to the CCMA for Arbitration. This means that you can ask the CCMA to look into the matter and advise your employer regarding how they are treating you in terms of the rest of the workplace.
What is an Unfair Dismissal?
Unfair dismissal occurs when an employee is terminated without good cause or a fair procedure. Under Unfair Dismissal you can refer the case to the CCMA.
There are important time considerations when you have an Unfair Labour Practice and an Unfair Dismissal.
With Unfair Labour Practice – you have 90 days to refer your case to the CCMA. With an Unfair Dismissal – you have 30 days to refer your case to the CCMA
If you’ve missed the time period, let’s say you are 32 days over for Unfair Dismissal, you can still refer your case to the CCMA but you must fill in a Condonation Application.
