Labour Law 244 - Unfair labour practices Terms in this set (32) Pretorius & Another v Transport Pension Fund & Others (2018) [FACTS] Transnet pensioners (no longer employees) institute claim against Pension Fund based on past undertakings. Because

Labour Law 244 - Unfair labour practices Terms in this set (32) Pretorius & Another v Transport Pension Fund & Others (2018) [FACTS] Transnet pensioners (no longer employees) institute claim against Pension Fund based on past undertakings. Because they are no longer 'employees', they cannot rely on labour legislation. The court is hearing exceptions to claims. Pretorius & Another [IMPORTANT] • Focus only on that claim (and that part of the claim) alleging unfair labour practice i.t.o. the Constitution. • Section 186(2)(b) of LRA limits unfair labour practices to 'employees'. • To bypass the constitution, part of their claim was to rely directly on S23(1) of the Constitution despite the LRA regulating and restricting that specific right. Through the principle of subsidiarity, a claimant cannot directly rely on the right if there is existing legislation which restricts it. Pretorius [question] • Are these pensioners allowed to rely on Constitutional right to fair labour practices - i.e., circumvent legislation. The issue thus is subsidiarity. • Focus on paras 46-55. Pretorius [court] • Subsidiarity is not a hard and fast rule; depends on what Constitution says (does it require legislation to give effect to a constitutional right, like S9/ 33? • CC held that subsidiarity is complex in the context of labour law and that where the Constitution does not require legislation to be enacted, such as in the case of s23(1), it may be possible to rely directly on the Constitution without first showing that the applicable legislation is deficient. 1&2. PROMOTION AND DEMOTION: NB FOR EXAM 3 issues that arise: 1. What the terms promotion and demotion mean - Whether the council or CCMA will have jurisdiction to hear the dispute 2. What constitutes unfair conduct 3. Remedies 2 requirements for a promotion to exist: 1. Existing employment relationship 2. Comparing jobs: to see if there has been a change and new job must be more beneficial Labour Law 244 - Unfair labour practices Usually only in 2 circumstances during probation: - Where an employer gives indications during the probationary period that there is unhappiness with the employee's performance - Where the employer is unhappy with the performance of the probationary employee and decides to extend the period of probation 4. Training # Arise from contract of employment or a collective agreement # Obligation on employer # Employee can challenge the denial of training where there was an expectation of training 5. PROVISION OF BENEFITS: NB FOR EXAM 2 step approach regarding the meaning of "benefits": 1. FOCUS ON THE MEANING OF "BENEFIT" AND TRY TO DEFINE IT 2. REFINE THE MEANING OF "BENEFITS" ALONG THE LINES OF THE DISTINCTION BETWEEN DISPUTES OF RIGHT AND DISPUTES OF INTEREST Schoeman v Samsung "Benefit" does not include remuneration - problematic as remuneration is widely defined in LRA ("payment in money or in kind") Hospersa v Northern Cape Provincial Admin • LAC: as a general rule, the term 'benefits' in the definition of unfair labour practice only includes benefits that accrue to an employee 'ex contractu (consequences arising from contract) and ex lege (as a matter of law)'. • The term only includes benefits that already exist i.t.o. a contract or law • The court held that only disputes about already existing rights could be considered by bargaining councils or the CCM 6. UNFAIR SUSPENSION: NB FOR EXAM 2 types: 1 Punitive 2 Precautionary/ preventative suspension Punitive (without pay): usually an alternative to dismissal: Employer must adhere to disciplinary code, employment contract, collective agreement regarding suspensions Precautionary/ preventative suspensions: pending hearing (with pay) 7. DISCIPLINARY ACTION SHORT OF DISMISSAL - Action taken by an employer before the employee has been found guilty and the imposition of a disciplinary sanction - This ULP is applicable where an employer imposes a disciplinary sanction that doesn't constitute dismissal such as the imposition of a final warning and a suspension without pay 3 differences: - The employee must prove that the sanction actually imposed wasn't appropriate - It's much easier for employer's to justify sanctions less severe than dismissal - As far as procedural fairness is concerned is stands to reason that the less severe the sanction is, the more informal the procedure that may be required to follow may be 8. FAILURE OR REFUSAL TO REINSTATE - Relied on the context of re-hiring agreements - In some agreements, the employer may undertake to preferentially rehire employees from the pool of retrenched employees when vacancies arise 9. PROTECTED DISCLOSURES # Occupational detriment: - Must be protected disclosure - There must be causality between the protected disclosure and the detriment REMEDIES # Refer within 90 days to CCMA or Council with jurisdiction # Conciliation, if not successful, arbitration (con-arb in case of probation) at BC/CCMA # Onus on employee (no shifting onus as in case of dismissal) # May be taken on review to LC # Protected Disclosure: may refer to LC # Any terms deemed reasonable, including reinstatement, re-employment, compensation up to 12 months - depends on facts - Example: lifting of suspension, protected promotion