LABOUR LAW

ARR 214

Theme 9

THEME 9I N D I V I D U A L L A B O U R D I S P U T E S : U N F A I R

L A B O U R P R A C T I C E SP G L ( 2 0 0 6 : 3 0 1 - 3 1 8 ) ; W L ( 2 0 0 9 : 7 3 - 9 2 ) ;

P L L ( 2 0 0 5 :

SA EWA OBO PAGE V D ENE L AV I AT I ON S A EWA OBO PAGE V D ENE L AV I AT I ON S A EWA OBO PAGE V D ENE L AV I AT I ON S A EWA OBO PAGE V D ENE L AV I AT I ON S A EWA OBO PAGE V D ENE L AV I AT I ON S A EWA OBO PAGE V D ENE L AV I AT I ON S A EWA OBO PAGE V D ENE L AV I AT I ON S A EWA OBO PAGE V D ENE L AV I AT I ON

T R ANSPORT A I RCRA F T MA I N T ENANCETRANSPORT A I RCRA F T MA I N T ENANCETRANSPORT A I RCRA F T MA I N T ENANCETRANSPORT A I RCRA F T MA I N T ENANCE

[ 2 0 01 ] 10 B A L R 1107 ( C CMA ) ; [ 2 0 01 ] 10 B A L R 1107 ( C CMA ) ; [ 2 0 01 ] 10 B A L R 1107 ( C CMA ) ; [ 2 0 01 ] 10 B A L R 1107 ( C CMA ) ; H E YNECKEHE YNECKEHE YNECKEHE YNECKE V V V V UMH L AT Z EUMHL AT Z EUMHL AT Z EUMHL AT Z E MUN I C I PA L I T Y MUN I C I PA L I T Y MUN I C I PA L I T Y MUN I C I PA L I T Y

( 2 010 ) 31 I L J 2 6 08 ( LC )( 2 010 ) 31 I L J 2 6 08 ( LC )( 2 010 ) 31 I L J 2 6 08 ( LC )( 2 010 ) 31 I L J 2 6 08 ( LC )

M I N I S T ER O F S A F E T Y A ND S E CUR I T Y V M I N I S T ER O F S A F E T Y A ND S E CUR I T Y V M I N I S T ER O F S A F E T Y A ND S E CUR I T Y V M I N I S T ER O F S A F E T Y A ND S E CUR I T Y V S A F E T Y A ND S E CUR I T Y S A F E T Y A ND S E CUR I T Y S A F E T Y A ND S E CUR I T Y S A F E T Y A ND S E CUR I T Y S E C TORA LS E C TORA LS E C TORA LS E C TORA L

B ARG A I N I NG C OUNC I L A ND B ARG A I N I NG C OUNC I L A ND B ARG A I N I NG C OUNC I L A ND B ARG A I N I NG C OUNC I L A ND OTH ERS ( 2 010 ) 31 I L J 2 6 80OTH ERS ( 2 010 ) 31 I L J 2 6 80OTH ERS ( 2 010 ) 31 I L J 2 6 80OTH ERS ( 2 010 ) 31 I L J 2 6 80 ( L C )

THEME 9 (LEARNING OUTCOMES)

• Know and comprehend the meaning and extent of the concept of unfair labour practice.

• Discuss the different forms of unfair labour practice.

• Discuss the application of unfair labour practices through case law.

THEME 9 (INTRODUCTION)

• ‘Unfair labour practices’ i.t.o. 1956-LRA was catch -all category of conduct by employers, employees and their organisat ions that, according to Industrial Court, fell within definiti on of unfair labour practice.

• Catch-all category disappeared with 1995-LRA becaus e different types of unfair conduct are separately dealt with. Examples are:

o Unfair dismissal (Chap 8) o Unfair employer conduct towards employees for exercising their freedom of

association (Chap 2) o Organisational rights (Chap 3) o Unilateral amendment to employment conditions (sect 64)o Unilateral amendment to employment conditions (sect 64)

• Only small number of practices considered as unfair were not placed in specific category. Previously it was refe rred to as ‘residual unfair labour practices’, but we now refe r to it as ‘unfair labour practices’.

• New concept ‘unfair labour practices’ refers to onl y few specific practices (which are not regulated separately) alth ough practices that are regulated separately, still are also unfai r labour practices.

• Unfair labour practices i.t.o. 1995-LRA can be comm itted by employer only.

THEME 9 (DEFINITION OF ‘UNFAIR LABOUR PRACTICE’)

Any unfair conduct by employer relating to: • Promotion, demotion, probation (excluding disputes

about dismissals for reason relating to probation) or training of employee or relating to provision of benefits to employee.

• Unfair suspension of an employee or any other unfai r • Unfair suspension of an employee or any other unfai r disciplinary action short of dismissal in respect o f employee.

• Failure/refusal by employer to re-instate or re-emp loy former employee in terms of any agreement.

• Occupational detriment, other than dismissal, in contravention of Protected Disclosures Act, 2000 (A ct 26 of 2000), on account of employee having made protected disclosure defined in that Act.

THEME 9 (PROMOTIONS I)

• Promotion: raise to higher rank/office and includes appointment to position with greater authority and status.

• Unfair conduct – failure by employer to meet objective standard and may include arbitrary, capricious or inconsistent conduct.. capricious or inconsistent conduct..

• Employer must act fairly when promoting/ not promoting employee .

THEME 9 (PROMOTIONS II)

Procedural fairness regarding promotion implies the following:• Employer must adhere to bottom line of fair promoti on

procedure. • Must ensure that all candidates were afforded reaso nable

opportunity to promote candidature. • Employer must follow own procedures.• Employee may challenge composition and/or competenc y of • Employee may challenge composition and/or competenc y of

selection panel. • Employees who’ve been acting in more senior positio n do not

have automatic right to promotion to that position. Must at least be considered.

• Promotion must include form of reward, e.g. higher salary. Also possible promotion in case of higher status without higher salary.

• Employer must consider development of employee.• Also see SAPS-case and Zandberg-case.

THEME 9 (PROMOTIONS III)

Substantive fairness regarding promotion implies th e following:

• Refers to reasons why employer decided to prefer em ployee for promotion.

• Employer retains discretion to appoint person regar ded as most suitable for post. Subjective considerations m ay be taken into account. Arbitrator must honour employer ’s discretion and may not interfere except if it’s pro ven that employer failed to apply his mind when candidate wa s selected.employer failed to apply his mind when candidate wa s selected.

• Employer must provide reasons for decision.• Must be logical connection between true reasons and

decision taken.• One criteria may carry more weight than rest of cri teria.• External candidates are appointed while internal ca ndidates

are promoted. • Promise for promotion does not entitle employee to

promotion, but may create legitimate expectation.

THEME 9 (DEMOTIONS)

• Reverse of promotion. Employee moved to lower rank/level.

• Unfair conduct: failure to use objective standards and includes arbitrary, capricious or inconsistent cond uct.

• Demotion, as disciplinary measure, allowed in circumstances where dismissal was justified but, because of mitigating factors, employer decided not to dismiss employee.dismiss employee.

• Demotion, except demotion as disciplinary measure, must be preceded by consultation, even if no loss o f status/salary. (Otherwise unilateral amendment of conditions/ulp.)

• Demotion as disciplinary measure must only be implemented if employer’s disciplinary code provide s for it.

THEME 9 (BENEFITS AND TRAINING)• When payment is regarded as remuneration – not a ‘be nefit’.• Commission part of remuneration and not a benefit. • Allowances?• All payments resorting under wide spectrum of

“remuneration” are excluded from ‘benefits.• Benefit must be material in nature. Must include mo netary

value for employee and expense for employer. See Lebowa Platinum Mines-case.

• Distinction:o Dispute of interest (not already). Industrial actiono Dispute of right (already). Arbitrationo Dispute of interest (not already). Industrial actiono Dispute of right (already). Arbitration• Employer guilty of unfair labour practice if he ref use to train

employees when contractually compelled to do so.• Training and affirmative action?

THEME 9 (UNFAIR SUSPENSION AND OTHER DISCIPLINARY ACTION)• Employer guilty of unfair labour practice if acting unfairly

when suspending employee or imposing disciplinary sanction short of dismissal.

• In Koka-case court distinguished between 2 forms of suspension:

o Form of disciplinary sanction (Suspension as contemplated in Act) Normally without pay. Regarded as disciplinary action other than dismissal. Acceptable if it’s suitable. Employee can only be suspended without pay in circumstances where dismissal would’ve been justified if it was not for mitigating circumstances.

o “Holding-operation” pending disciplinary hearing i.r.o. misconduct/incapacity Employees are often suspended with pay pending disciplinary hearing. May be fair if employer had reasonable apprehension that legitimate business interest would be harmed by employee’s continued presence in workplace. Hearing need not be conducted prior to this type of suspension. Employee may not be suspended indefinitely. Suspension without pay is unfair.

THEME 9 (REFUSAL TO REINSTATE OR RE-EMPLOY)

1. Unfair labour practice if agreed to reinstate or re-employ.

2. Retrenchments and collective agreements: include in individual contract of employment.

3. Qualify for available positions.3. Qualify for available positions.

THEME 9 (PROBATION)

• Newly appointed employee may be appointed on probation provided period is reasonable.

• Aim of probation is to allow employer to evaluate employee’s performance.

• Probation-employee is still an employee. Employer must deal careful with misconduct (ordinary principles of substantive and procedural fairness aplly) or incapacity (if performance is not according to standard, performance is not according to standard, evaluation and help by employer is required).

• Item 8 of Code of Good Practice Item 8 of Code of Good Practice Item 8 of Code of Good Practice Item 8 of Code of Good Practice –––– See p309See p309See p309See p309

• ConConConCon----arbarbarbarb

THEME 9 (PROTECTED DISCLOSURE ACT 26 OF 2000 I)• Purpose of Act: Disclosure of crimes and

irregularities without fear of reprisal.• Employee may not be subject to occupational

detriment if he makes protected disclosure of info.

• Disclosure of info includes:oCommitting criminal offenceoCommitting criminal offenceoFailure to comply with legal obligationoOccurrence of miscarriage of justiceoEndangerment of health/safetyoDamage to environmentoUnfair discriminationoConcealing above

THEME 9 (PROTECTED DISCLOSURES ACT 26 OF 2000 II)Disclosure is protected:

• To legal practitioner/legal advisor

• In good faith to employer

• In good faith to member of Cabinet or to • In good faith to member of Cabinet or to Executive Council of province

• In good faith to Public Protector or Auditor-General

• In good faith to any person/body by employee who reasonably believes that the info is true

THEME 9 (PROTECTED DISCLOSURES ACT 26 OF 2000 III)Occupational detriment includes:• Disciplinary action• Dismissal/suspension/demotion/harassment/

intimidation• Transfer against will• Refusal to transfer/promote• Variation of employment/retirement conditions to

detriment• Refusal of reference or adverse reference• Refusal of reference or adverse reference• Refusal to appoint to position/profession/office• Threat regarding abovementioned• Adverse treatment pertaining to employment

THEME 9 (JOB APPLICANTS)

• Normally can’t refer non-appointment to CCMA etc.

• If non-appointment was due to discrimination, refer to CCMA etc.

• Non-appointment because of protected • Non-appointment because of protected disclosure is ulp.

THEME 9 (DISPUTE RESOLUTION)

• Sect 191

• In writing to council/CCMA for conciliation within 90 days.• In writing to council/CCMA for conciliation within 90 days.

• If unresolved, for arbitration/adjudication… but occ upational detriment can’t be referred for arbitration.

• Ulp regarding probation – con-arb.

NEXT LECTURE

• Individual labour disputes: Dismissal