MRL 3701 - STUDY UNIT 5 UNFAIR LABOUR PRACTICES UNDER THE LABOUR RELATIONS ACT STUDY GUIDE WITH COMPLETE SOLUTIONS

MRL 3701 - STUDY UNIT 5 UNFAIR LABOUR PRACTICES UNDER THE LABOUR RELATIONS ACT STUDY GUIDE WITH COMPLETE SOLUTIONS DEFINITION OF UNFAIR LABOUR PRACTICE - Answer️️ -Means any unfair act or omission that arises between an employer and an employee involving: 1. unfair conduct by the employer relating to the promotion, demotion, probation or training of an employee or relating to the provision of benefits to an employee; 2. the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee 3. failure or refusal by an employer to reinstate or re-employ a former employee i.t.o. any agreement 4. an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act on account of the employee having made a protected disclosure define in that Act. SECTION 23(1) OF THE CONSTITUTION - Answer️️ -Everyone has the right to fair labour practices SECTION 185(b) OF LRA - Answer️️ -Every employee has the right not to be subjected to an unfair labour practice. RIGHT TO FAIR LABOUR PRACTICES - CONSTITUTION - Answer️️ -a) is wide ©SOPHIABENNETT EXAM SOLUTIONS_2024/2025 Tuesday, September 3, 2024 10:30 AM Page | 2 b) protects "everyone" in other words, also workers who are not employees in terms of the LRA Surrounding circumstances will be taken into account in determining whether there was an infringement of the right to fair labour practices. PROTECTION AGAINST UNFAIR LABOUR PRACTICES - LRA - Answer️️ -a) is limited to the list of actions included in the definition of an unfair labour practice b) protects employees only against specific actions by employers c) an employee cannot commit an unfair labour practice towards an employer; only and employer can commit an unfair labour practice towards an employee. EXTENT OF PROTECTION AGAINST UNFAIR LABOUR PRACTICES IN THE LRA - Answer️️ -Limitations of unfair labour practice protection: 1. Definition makes provision for the protection of employees againss unfair labour practices committed by employers. An employee cannot commit an unfair labour practice 2. Protection against unfair labour practices refers to employers and employees only. 3. The list of unfair labour practices is contained in Section 186 (2). ELEMENTS OF THE DEFINITION OF UNFAIR LABOUR PRACTICES - Answer️️ -1. Unfair conduct of the employer relating to promotion 2. Unfair conduct of the employer relating to demotion ©SOPHIABENNETT EXAM SOLUTIONS_2024/2025 Tuesday, September 3, 2024 10:30 AM Page | 3 3. unfair conduct of the employer relating to probation 4.Unfair conduct of the employer relating to training 5. Unfair conduct of the employer relating to provision of benefits. 6. Unfair conduct of the employer relating to suspension or any other disciplinary action short of dismissal 7. Unfair conduct of the employer relating to a refusal to reinstate or re-employ and employee in terms of any agreemetn 8. Unfair conduct of the employer relating to an employee suffering an occupational detriment on account of a protected disclosure UNFAIR CONDUCT OF THE EMPLOYER RELATING TO PROMOTION - Answer️️ - Promotion falls withing managerial prerogative. Employer may promote the most suitable candidate (fair process to be followed) Employee does not have any legal entitlement to be promoted to a higher post. Decision not to promote an employee is reviewable if employer cannot justify its decision or if the decision proves to be seriously flawed. GEBHARDT v EDUCATION LABOUR RELATIONS COUNCIL & OTHERS - Answer️️ -Gebhardt (white) hearing impaired. Applied for promotion along with coloured female colleague. Employer chose to appoint a coloured female because she was from a designated group. Court found that employer neglected to verify Gebhardts disability in a situation where this would have played a significant role int eh decision whom to promote. Was held that her non-promotion consituted an unfair labour practice and matter was referred back tot arbitration ©SOPHIABENNETT EXAM SOLUTIONS_2024/2025 Tuesday, September 3, 2024 10:30 AM Page | 4 COURT WILL ONLY INTERVENE IN DISPUTES ABT PROMOTION IF THE EMPLOYED ACTED IN BAD FAITH - Answer️️ -Examples: 1. employer exercised its discretion inconsistently 2. reasons provided cannot be substantiated 3. decision was taken on a wrong principle 4. decision was taken in a biased manner UNFAIR CONDUCT OF THE EMPLOYER RELATING TO DEMOTION - Answer️️ - Occur in cases where an employee 1. is transferred to a lower level 2. receives less remuneration 3. loses benefits 4. experiences a loss in status. DEMOTION CAN BE FAIR - Answer️️ -For example: When done in the context of restructuring an organisation for operational reasons or because of incapacity. Demotion can also be used as a disciplinary measure. UNFAIR CONDUCT OF EMPLOYER RELATING TO PROBATION - Answer️️ - Purpose is to afford employer opportunity to evaluate an employees performance before confirming the appointment. CODE - FAIR PROBATIONARY PERIOD - Answer️️ -1. the period should be determine in advance ©SOPHIABENNETT EXAM SOLUTIONS_2024/2025 Tuesday, September 3, 2024 10:30 AM Page | 5 2. the period should be of a reasonable duration, determine with reference to: a. nature of the job b. time it would take to determine the employee's suitability for continued employment. END OF PROBATION PERIOD - Answer️️ -THREE OUTCOMES: 1. probationary period may be extended to enable the employee to improve her / his performance but only if it is justified. 2. The employee may be dismissed, which will be where the employee's employment is not confirmed and the employee is not offered permanent appointment 3. The employee can be appointed as permanent employee. In case of 1 & 2 above employee must be invited to make representations, which the employer must consider. SACTWU v MEDITERRANEAN WOOLLEN MILLS - Answer️️ -Was held an employer who does not want to confirm a probationary employees appointment must show that the procedure prior to the dismissal included: 1. giving the employee an opportunity to improve 2. making the employee aware that her/his performance was unacceptab