Human Resources Management IIB by ProfessorBurgerQueen
Unfair Labour Practices and Unfair Discrimination
- Employment Equity and Affirmative Action
- Unfair labour practice means:
1) Unfair conduct by the employer (ER) relating to the promotion, demotion,
probation (excl. disputes about dismissals) or training of an employee (EE) or
relating to the provision of benefits to an EE
2) Unfair suspension of an EE or any other unfair disciplinary action short of
dismissal in respect of an EE
3) A failure or refusal by an ER to reinstate or re-employ a former EE in terms of
any agreement
Unfair Labour Practice and Promotion
- Must be between ER and their own EE
- This arises in instances where an ER fails to follow agreed promotion policies and
procedures, or when an EE claims being overlooked for unacceptable or irrelevant
reasons
- The onus is on the EE(s) to prove beyond reasonable doubt that there was indeed
unfair conduct on the part of the ER
- There is a fine line between the ER’s prerogative or discretion, and acting
substantively and procedurally unfair - a clear distinction needs to be made
Unfair Labour Practice and Demotion
- A demotion occurs when an EE’s remuneration, status, and responsibilities are
materially reduced
- A demotion also occurs when an EE’s subordinates are take away, or they
are now required to report to someone who used to report to them
- Demotion in most instances should be by agreement eg. if it is an alternative to
retrenchment or as a result of a disciplinary outcome
- The ER is, however, obligated to consult with the EE before implementing demotion
to avoid retrenchment
- A demotion will, however, be deemed unfair if imposed as a disciplinary penalty,
or in addition to a transfer to another division
, Human Resources Management IIB by ProfessorBurgerQueen
Unfair Labour Practice and Training
- ERs must provide training if:
- There is an agreement between the parties
- There is applicable statutory provision on the development of skills of an EE
and the training of an EE (eg. Skills Development Act (SDA) and the EEA)
- The EE can prove a legitimate expectation of training
- Training is necessary for the advancement of the EE and there is an
established practice of training in the workplace
Suspension & Dismissal
- Preventive suspension - ER needs to prove the EE’s access to the workplace will
compromise the pending investigation
- An EE on suspension pending a disciplinary enquiry is entitled to full remuneration
and benefits for the duration of the suspension
- It is unfair to suspend an EE “pending” a disciplinary enquiry and later decide to not
hold the enquiry
- Punitive suspension - serves as punishment with no valid reason for suspension
Failure/Refusal to Reinstate
- An ER’s failure to rehire retrenched workers in terms of an agreement concluded
with their union or any representative after their dismissal constitutes unfair labour
practice
- The agreement needs to be in writing, and the ER is usually obligated to rehire old
employees if similar vacancies arise
- The onus is on the EE to prove that they have the necessary skills to perform
a similar job
- The hiring of a contractor to perform the work of a retrenched EE also constitutes a
breach in the rehiring contract
Unfair Labour Practices and Unfair Discrimination
- Employment Equity and Affirmative Action
- Unfair labour practice means:
1) Unfair conduct by the employer (ER) relating to the promotion, demotion,
probation (excl. disputes about dismissals) or training of an employee (EE) or
relating to the provision of benefits to an EE
2) Unfair suspension of an EE or any other unfair disciplinary action short of
dismissal in respect of an EE
3) A failure or refusal by an ER to reinstate or re-employ a former EE in terms of
any agreement
Unfair Labour Practice and Promotion
- Must be between ER and their own EE
- This arises in instances where an ER fails to follow agreed promotion policies and
procedures, or when an EE claims being overlooked for unacceptable or irrelevant
reasons
- The onus is on the EE(s) to prove beyond reasonable doubt that there was indeed
unfair conduct on the part of the ER
- There is a fine line between the ER’s prerogative or discretion, and acting
substantively and procedurally unfair - a clear distinction needs to be made
Unfair Labour Practice and Demotion
- A demotion occurs when an EE’s remuneration, status, and responsibilities are
materially reduced
- A demotion also occurs when an EE’s subordinates are take away, or they
are now required to report to someone who used to report to them
- Demotion in most instances should be by agreement eg. if it is an alternative to
retrenchment or as a result of a disciplinary outcome
- The ER is, however, obligated to consult with the EE before implementing demotion
to avoid retrenchment
- A demotion will, however, be deemed unfair if imposed as a disciplinary penalty,
or in addition to a transfer to another division
, Human Resources Management IIB by ProfessorBurgerQueen
Unfair Labour Practice and Training
- ERs must provide training if:
- There is an agreement between the parties
- There is applicable statutory provision on the development of skills of an EE
and the training of an EE (eg. Skills Development Act (SDA) and the EEA)
- The EE can prove a legitimate expectation of training
- Training is necessary for the advancement of the EE and there is an
established practice of training in the workplace
Suspension & Dismissal
- Preventive suspension - ER needs to prove the EE’s access to the workplace will
compromise the pending investigation
- An EE on suspension pending a disciplinary enquiry is entitled to full remuneration
and benefits for the duration of the suspension
- It is unfair to suspend an EE “pending” a disciplinary enquiry and later decide to not
hold the enquiry
- Punitive suspension - serves as punishment with no valid reason for suspension
Failure/Refusal to Reinstate
- An ER’s failure to rehire retrenched workers in terms of an agreement concluded
with their union or any representative after their dismissal constitutes unfair labour
practice
- The agreement needs to be in writing, and the ER is usually obligated to rehire old
employees if similar vacancies arise
- The onus is on the EE to prove that they have the necessary skills to perform
a similar job
- The hiring of a contractor to perform the work of a retrenched EE also constitutes a
breach in the rehiring contract
