Study Unit 6

IURI 222
Study Unit 6
Unfair labour practices

Study outcomes
1. Define unfair labour practices and indicate what a labour
practice is
2. Indicate to whom the right in terms of the LRA and the
Constitution is applicable, respectively
3. Describe the role of section 23(1) of the Constitution
4. Describe the different types of unfair labour practices and
indicate when it will be unfair
5. Indicate what the remedies for unfair labour practices are
Right to fair labour practices
1. Section 185 (LRA):
Every employee has the right not to be:

(1) unfairly dismissed,
(2) subjected to unfair labour practices.
Section 23(1) of the Constitution
Section 23(1):
Everyone has the right to fair labour practices.
Difference between right in section 23 of the C and 186(2) of the

LRA?
Section 186(2) only applicable to the employee!! Right in C available

to everyone, including employer. See wording of section 186(2) on
next slide! Only meant for employee – EE protected against specific
conduct of the ER.
Unfair labour practices (S 186(2)) – Know the definition!
'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 re-instate 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, on account of the employee having made a protected
disclosure defined in that Act.
Practices: Promotion
1. Promotion means: Elevation of status/level in the workplace, whether

through normal progression or per application to a higher position
(Department of Justice v CCMA; National Commissioner of the SAPS
v Cohen)
2. 2 requirements for promotion to be relevant:
1. Employment relationship existed
2. By comparing the current job and the one aspired to, there must be a real
difference in level/status/remuneration (Mashegoane)
3. Substantive fairness: Decision not to promote may not be arbitrary
(employee carries onus to prove unfairness)
4. “Arbitrary” means: For irrelevant, irrational, mala fide reasons –
capricious and cannot be substantiated
5. Procedural fairness?
6. Courts will intervene when the refusal to promote was for some
unacceptable reason or procedurally unfair
7. Acting in senior positions? When will failure to promote be unfair?
City of Cape Town v SA Municipal Workers Union
Practices: Demotion
1. Demotion means: Actual diminished status of employee and loss of

employment benefits in the workplace (opposite of promotion) - SAPS
v Salukazana
2. Without good reason, unacceptable and unfair
3. Good reasons?
1. A sanction for misconduct as part of progressive discipline
2. Diminishing status/moving to lower position because the employee
is/became incapacitated to perform current duties (form of accommodation)
3. Method to avoid retrenchments due to operational requirements
(restructuring to save money)
Practices: Probation
1. Employee works probation period to prove capabilities to employer

2. Strict rules must be adhered to
3. Code of Good Practice: Dismissal – Item 8
1. Give employee guidance, training and instructions
2. Monitor employee’s work – if employee’s work is not up to standard, let him
know where and how to improve
3. If employer satisfied – make appointment official
4. If not – dismiss employee or extend probation period
5. Probation period only extended for the purpose intended by the Code
6. MAY NOT ABUSE PROBATION OR SKIP PROCEDURAL STEPS
7. Employee may claim unfair LP only before dismissal takes place
Practices: Training
1. If employer has the obligation to provide training, may not refuse

2. When obligation?
1. In terms of a contract or other agreement
2. In terms of legislation (Skills Development Act)
3. Reasonable expectation created for the employee
3. If employer has maintained a consistent practice (even if it is not
stated in a contract) an expectation is created
4. Employer must be consistent and rational
Practices: Benefits
1. What is a benefit? Similar to remuneration/wage?
2. Definition of remuneration
Any payment (in money or in kind) made or owed to any person for services
rendered
3. “Benefits” according to Schoeman not included here

4. In later cases: benefits something else – travel and cell phone
allowance, bonuses etc.
5. The question is when the employee has a right to such ‘benefit’
6. Can be stipulated in contract/ law or be long standing practice –
Apollo Tyres
7. May not refuse without reason to grant the benefit
Practices: Suspension
1. Two types meant in s 186(2):

1. As a penalty after being found guilty of misconduct
2. During the course of a disciplinary investigation into alleged misconduct
2. Sappi Forests v CCMA
3. Good reason for suspension and procedure essential for fairness
(Gradwell)
4. (1) can be unfair when it is disproportionate to the misconduct – ie
too long
5. Unfair when misconduct not properly proven or not serious enough
6. During (1) – penalty, therefore no salary paid (no work, no pay)
7. Why does the employer use suspension in (2)?
8. During (2) salary is fully paid
Practices: Failure or refusal to reinstate as originally agreed
upon
1. Employer contracted to re-employ but failed to do so

2. Employee should prove existence of agreement
3. Employee should prove failure of employer to honour the agreement
4. NB - Differs from dismissal in terms of section 186
1. Employee prove under S 186 that employer drew a distinction (selective re-
employment)
5. Employee must have been suitable for the available position
Practices: Occupational detriment due to protected disclosure
1. Protected Disclosures Act

2. Disclosure made to prescribed party/institution about
employer’s/colleague’s criminal or unlawful conduct
3. Occupational detriment suffered due to the protected disclosure
4. What is meant by an occupational detriment?
5. Types? ? Basson p. 337-338
6. When is disclosure protected?
1. Disclose specified conduct
2. Disclose to specified parties
3. Based on facts (true belief)
Grieve v Denel

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IURI 222

Unfair labour practices

Every employee has the right not to be:

Difference between right in section 23 of the C and 186(2) of the

Section 186(2) only applicable to the employee!! Right in C available

1. Promotion means: Elevation of status/level in the workplace, whether

1. Demotion means: Actual diminished status of employee and loss of

1. Employee works probation period to prove capabilities to employer

1. If employer has the obligation to provide training, may not refuse

3. “Benefits” according to Schoeman not included here

1. Two types meant in s 186(2):

1. Employer contracted to re-employ but failed to do so

1. Protected Disclosures Act

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