LABOUR LAW ARR 214 Theme 9
THEME 9 I 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 S P 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 : S A E W A O B O P A G E V D E N E L A V I AT I O N T R A N S P O R T A I R C R A F T M A I N T E N A N C E [ 2 0 0 1 ] 1 0 B A L R 1 1 07 ( C C M A ) ; H E Y N E C K E V U M H L AT Z E M U N I C I P A L I T Y ( 2 0 1 0 ) 31 I L J 2 6 0 8 ( L C ) M I N I S T E R O F S A F E T Y A N D S E C U R I T Y V S A F E T Y A N D S E C U R I T Y S E C T O R A L B A R G A I N I N G C O U N C I L A N D O T H E R S ( 2 0 1 0 ) 31 I L J 2 6 8 0 ( 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 organisations that, according to Industrial Court, fell within definition of unfair labour practice. Catch-all category disappeared with 1995-LRA because 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) Only small number of practices considered as unfair were not placed in specific category. Previously it was referred to as residual unfair labour practices, but we now refer to it as unfair labour practices. New concept unfair labour practices refers to only few specific practices (which are not regulated separately) although practices that are regulated separately, still are also unfair labour practices. Unfair labour practices i.t.o. 1995-LRA can be committed 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 unfair disciplinary action short of dismissal in respect of employee. Failure/refusal by employer to re-instate or re-employ former employee in terms of any agreement. Occupational detriment, other than dismissal, in contravention of Protected Disclosures Act, 2000 (Act 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.. 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 promotion procedure. Must ensure that all candidates were afforded reasonable opportunity to promote candidature. Employer must follow own procedures. Employee may challenge composition and/or competency of selection panel. Employees who ve been acting in more senior position 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 the following: Refers to reasons why employer decided to prefer employee for promotion. Employer retains discretion to appoint person regarded as most suitable for post. Subjective considerations may be taken into account. Arbitrator must honour employer s discretion and may not interfere except if it s proven that employer failed to apply his mind when candidate was 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 criteria. External candidates are appointed while internal candidates 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 conduct. Demotion, as disciplinary measure, allowed in circumstances where dismissal was justified but, because of mitigating factors, employer decided not to dismiss employee. Demotion, except demotion as disciplinary measure, must be preceded by consultation, even if no loss of status/salary. (Otherwise unilateral amendment of conditions/ulp.) Demotion as disciplinary measure must only be implemented if employer s disciplinary code provides for it.
THEME 9 (BENEFITS AND TRAINING) When payment is regarded as remuneration not a benefit. 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 monetary value for employee and expense for employer. See Lebowa Platinum Mines-case. Distinction: o Dispute of interest (not already). Industrial action o Dispute of right (already). Arbitration Employer guilty of unfair labour practice if he refuse 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.
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, evaluation and help by employer is required). Item 8 of Code of Good Practice See p309 Con-arb
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: o Committing criminal offence o Failure to comply with legal obligation o Occurrence of miscarriage of justice o Endangerment of health/safety o Damage to environment o Unfair discrimination o Concealing 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 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 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. If unresolved, for arbitration/adjudication but occupational detriment can t be referred for arbitration. Ulp regarding probation con-arb.
NEXT LECTURE Individual labour disputes: Dismissal