Unfair Dismissal and Unfair Labour Practice

Every employee has the right not to be unfairly dismissed or to be subjected to an unfair labour practice.

What is an unfair labour practice?
It is unfair treatment by an employer of an employee or job applicant. There are a limited number of unfair labour practices that the Labour Relations Act defines.

The meaning of an unfair labour practice
An unfair labour 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 promotion, demotion or training of an employee o 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 by an employer to reinstate or re-employ a former employee in terms of any agreement.
  • This new category has been added: An occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, as defined in that Act.

Unfair conduct relating to promotion, demotion, training or benefits
This usually involves cases where the employer deviates from its own promotion or training policy or where the employee alleges that the promotion, demotion or training is in itself unfair.

Unfair sanction or disciplinary action and unfair suspension
Usually an employee would refer a dispute relating to the unfairness if disciplinary measures taken, based on the merits of the innocence in the alleged wrong doing.

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 where there is no plausible reason for the delay in finalizing the enquiry. An example of unfair suspension would be where an employee and the supervisor argued and the employer suspends only the employee, even though it was the supervisor who was to blame.

Refusal by an employer to reinstate a former employee in terms of any agreement
This type of unfair labour practice requires an agreement to have been in existence (verbal, written, individual or collective). Usually these disputes arise out of retrenchments. An example will be when there was an agreement 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 that employee.

Unfair treatment creating an occupational detriment for an employee who made made a protected disclosure
If an employee makes a protected disclosure as set out in that Act, for example, makes a disclosure regarding the conduct of an employer as the employee has reason to believe that the information shows that the employer is committing a criminal offence, and is thereafter prejudiced for making such disclosure.

Dispute about unfair treatment
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. It can be referred to arbitration, unless both parties have agreed to a CON-ARB process.

When to refer an unfair labour practice dispute
An employee has 90 days form 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 or occurrence. If the 90 days have lapsed and the employee had not referred the matter, the employee will need to apply for condonation.

Unfair dismissals

What is a dismissal
Dismissal means an employer has terminated an employment contract with or without notice; an employee reasonably expected the employer to renew a fixed term employment contract on the same or similar terms, but the employer failed to do s, or offered less favourable terms; the employer refused the employee to resume work after taking maternity leave; where an employee terminated the employment contract with or without notice because the employer had made continued employment intolerable.

A new category has been added: an employee terminated the employment contract with or without notice because the new employer (after a transfer of contract employment in terms of section 197 / 197A) offered conditions or circumstances at work which were on the whole less favourable than those the employee had before with the old employer.

What is an automatically unfair dismissal?
The following dismissals or reasons for the dismissal make them automatically unfair: dismissal for participation in a lawful strike or protest action; dismissal for refusal to do work normally done by an employee on a lawful strike; dismissal to compel an employee to accept a demand in respect of a matter of mutual interest; dismissal because an employee exercised a right conferred by the LRA; dismissal for reasons related to an employee’s pregnancy; and dismissal as a result of unfair discrimination. Two new categories have been added: Dismissal related to a transfer, or a reason related to a transfer as contemplated in section 197 or 197A; and a dismissal in contravention of the Protected Disclosures Act, 2000, by the employer, because of the employee having made a protected disclosure.

Other unfair dismissals
If a dismissal is not automatically unfair, it will be an unfair dismissal if the employer dismisses an employee for an unfair reason relating to the conduct or capacity or based on the operational requirements of the employer. It will also be unfair if the employer did not follow a fair procedure.

Dispute about unfair dismissals
If there is a dispute about the fairness of the dismissal, the dismissed employee may refer the dispute in writing to a bargaining council, and if there is no council, to the CCMA for conciliation. If the dispute remains unresolved, it can then be referred to arbitration unless both parties have agreed to a con-arb process. If a dispute concerns an automatically unfair dismissal, the matter must be referred to the Labour Court for adjudication.

When to refer an unfair dismissal dispute?
The employee has 30 days for the date of dismissal or, if it is a later date, within 30 days of the employer making a final decision to dismiss or uphold the dismissal to refer the matter to the CCMA or bargaining council by completing the, LRA7.11 form. If the matter is late, the applicant will need to apply for condonation.

Relevant legislation
LRA sections 185, 186, 187, 188, 188A, 191, 197, 197A. The Protected Disclosures Act.

For more information
www.ccma.org.za