Unfair Labour Practices

Topics: Discrimination, Employment, Racism Pages: 19 (6723 words) Published: July 10, 2013
In terms of section 185(b) of the LRA every employee has the right not to be subjected to unfair labour practices. According to the first statutory definition, an unfair labour practice was “anything the industrial court deemed to be an unfair labour practice”.

The current definition of “unfair labour practice” reads as follows:

(2) “Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving—

(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;

(b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;

(c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and

(d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.

Only persons who are in employment (employees) are protected against unfair labour practices. Employees are protected against the unfair labour practices committed by the employer. Unlike the situation under the old Act, an unfair labour practice can no longer be committed by an employee and no remedies are available to an employer. This point is dealt with by Grogan in the following article: Not for employers:

Can employers sue their employees for unfair labour practices? If not, is the Labour Relations Act unconstitutional because it fails to afford employers such a remedy? It took a trade union, acting in its role as an employer, to move the Labour Appeal Court to answer these questions. The dispute began with a spat between the National Entitled Workers Union (“NEWU”) and its deputy president, who resigned about a month after he was appointed “because of the manner in which this organisation is being run.” NEWU accused its former vice-president of “not following a fair procedure” and claimed that his resignation had violated the union’s constitutional right to fair labour practices. The union referred the dispute to the CCMA, seeking compensation for the unfair labour practice to which it had been subjected. A case management officer told NEWU that the commission lacked jurisdiction to entertain the dispute. NEWU then launched an application for review of that “ruling”, and sought an order declaring the Labour Relations Act 66 of 1995 and the Employment Equity Act 55 of 1998 unconstitutional because they failed to provide employers with remedies against unfair labour practices. The Labour Court dismissed the application and refused leave to appeal (see NEWU v CCMA & others [2004] 2 BLLR 165 (LC) – Employment Law 22(5)). Having been granted leave on petition, NEWU persisted only with the argument that the LRA and the EEA were unconstitutional because they failed to recognise unfair labour practices perpetrated by employees. In NEWU v CCMA & others [2007] 7 BLLR 623 (LAC), the Labour Appeal Court accepted that the Constitution of the Republic of South Africa, 1996 gives “everyone” a right to fair labour practices. While neither the LRA nor the EEA recognises unfair labour practices perpetrated by employees, the Basic Conditions of Employment Act 75 of 1997 makes provision for termination of employment by either party to an employment relationship. Actions by employers against employees were possible under the 1956 LRA. But no cases were reported in which employers sued employees for an unfair or unlawful resignation. This suggested to the court that there was no need for a remedy that went any further than that provided for in the current BCEA or the common law (see, for example, Nationwide Airlines (Pty) Ltd v Roediger & another (2006) 27 ILJ 1469...
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