INTRODUCTION
A dispute regarding an unfair labour practise must amount to a dispute of right. These entail disputes about
existing rights. In contrast “dispute of interest” concern the creation of new rights. The latter must be resolved by
way of industrial action and not by court. An employee may be unhappy about something in the workplace but not
suffienclty so to resign. For example, if an employee is not promoted, or an employer discontinues a cell phone
allowance. Even though termination of the contract of employment is not yet on the table, section 186 of the LRA
may provide protection for employees based on unfair practises committed by employers.
THE LRA
The LRA gives content to the right to fair labour practices guaranteed in the Constitution. It protects employees
against unfair labour practices by employers within the employment relationship. Remember the constitution
guarantees “everyone” a right to “fair labour practices” One might want to infer that an infringement of this right
will amount to unfair labour practise. This is not necessarily so.
The differences between these two concepts are illustrated below
Section 185 )b) provides that:
“Every employee has the right not to be… subject to an unfair labour practice”
Section 186 (2) gives content to the concept of unfair labour practice by describing a number of practices as
follows:
“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) 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 any employee
(c) A failure or refusal by an employer to reinstate or re-employ a former employee in terms of any
agreement
(d) An occupational detriment, other than dismissal, in contravention of the Protected Disclosure Act… on
account of the employee having made a protected disclosure defined in that Act.
, The right not to be subjected to unfair labour practice has had a large impact on the development of labour law in
SA. It has led to changes in employer practice and policies, and has effectively curbed managerial prerogative in
various respects such as promotions, suspension and probation.
The definition of UNFAIR LABOUR PRACTICE in the LRA refers to employers and employees ONLY. This means that
unfair labour practice can, in terms of the LRA, be committed only within the ambit of an employment relationship.
LISTED UNFAIR LABOUR PRACTICES
THE UNFAIR CONDUCT OF THE EMPLOYER RELATING TO PROMOTION
In general, promotion falls within the managerial prerogative. The employer may therefore promote the most
suitable candidate (after a fair process has been followed) an employee does not have any legal entitlement to be
promoted to a higher post, although circumstances may sometimes show that an employee has a reasonable
expectation regarding promotion. Such an expectation could have been due to an assurance by the employer that
the employee will be promoted.
The employer is required to act fairly, both procedurally and substantively, in a decision to promote or not
promote a particular employee. A decision not to promote an employee is reviewable if the employer cannot
justify its decision, or if the decision proves to be seriously flawed.
It is important to note that the court will intervene in disputes about promotion only if the employer acted in bad
faith. Generally speaking, for an allegation of unfair labour practise regarding promotion to succeed, it must be
shown that:
The employer exercised its discretion capriciously
The reasons provided cannot be substantiated
The decision was taken on a wrong principle
The decision was taken in biased manner
THE UNFAIR CONDUCT OF THE EMPLOYER RELATING TO DEMOTION
Demotion means that an employee:
Is transferred to a lower level
Receives less remuneration
Loses benefits
Experiences a loss in status
A dispute regarding an unfair labour practise must amount to a dispute of right. These entail disputes about
existing rights. In contrast “dispute of interest” concern the creation of new rights. The latter must be resolved by
way of industrial action and not by court. An employee may be unhappy about something in the workplace but not
suffienclty so to resign. For example, if an employee is not promoted, or an employer discontinues a cell phone
allowance. Even though termination of the contract of employment is not yet on the table, section 186 of the LRA
may provide protection for employees based on unfair practises committed by employers.
THE LRA
The LRA gives content to the right to fair labour practices guaranteed in the Constitution. It protects employees
against unfair labour practices by employers within the employment relationship. Remember the constitution
guarantees “everyone” a right to “fair labour practices” One might want to infer that an infringement of this right
will amount to unfair labour practise. This is not necessarily so.
The differences between these two concepts are illustrated below
Section 185 )b) provides that:
“Every employee has the right not to be… subject to an unfair labour practice”
Section 186 (2) gives content to the concept of unfair labour practice by describing a number of practices as
follows:
“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) 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 any employee
(c) A failure or refusal by an employer to reinstate or re-employ a former employee in terms of any
agreement
(d) An occupational detriment, other than dismissal, in contravention of the Protected Disclosure Act… on
account of the employee having made a protected disclosure defined in that Act.
, The right not to be subjected to unfair labour practice has had a large impact on the development of labour law in
SA. It has led to changes in employer practice and policies, and has effectively curbed managerial prerogative in
various respects such as promotions, suspension and probation.
The definition of UNFAIR LABOUR PRACTICE in the LRA refers to employers and employees ONLY. This means that
unfair labour practice can, in terms of the LRA, be committed only within the ambit of an employment relationship.
LISTED UNFAIR LABOUR PRACTICES
THE UNFAIR CONDUCT OF THE EMPLOYER RELATING TO PROMOTION
In general, promotion falls within the managerial prerogative. The employer may therefore promote the most
suitable candidate (after a fair process has been followed) an employee does not have any legal entitlement to be
promoted to a higher post, although circumstances may sometimes show that an employee has a reasonable
expectation regarding promotion. Such an expectation could have been due to an assurance by the employer that
the employee will be promoted.
The employer is required to act fairly, both procedurally and substantively, in a decision to promote or not
promote a particular employee. A decision not to promote an employee is reviewable if the employer cannot
justify its decision, or if the decision proves to be seriously flawed.
It is important to note that the court will intervene in disputes about promotion only if the employer acted in bad
faith. Generally speaking, for an allegation of unfair labour practise regarding promotion to succeed, it must be
shown that:
The employer exercised its discretion capriciously
The reasons provided cannot be substantiated
The decision was taken on a wrong principle
The decision was taken in biased manner
THE UNFAIR CONDUCT OF THE EMPLOYER RELATING TO DEMOTION
Demotion means that an employee:
Is transferred to a lower level
Receives less remuneration
Loses benefits
Experiences a loss in status
