Unfair labour practices: an introduction / by

The concept of “fairness” (or unfairness) entered South African labour law in the course of amendments to the Labour Relations Act of 1956 — as part of the amendments to the 1956 Act in the wake of the Wiehahn Commission, the concept of the unfair labour practice took centre stage in the development of our labour law. Initially, the unfair labour practice had an extremely wide definition: it was defined as any practice the Industrial Court deemed to be an unfair labour practice. Subsequent definitions were not that much narrower, and until the coming into effect of the 1995 Labour Relations Act, the concept of the unfair labour practice was wide enough to enable the Industrial Court and the Labour Appeal Court to develop a highly creative (if not always) consistent jurisprudence. One of the most important implications of the central role the unfair labour practice concept played was the development of the law regarding unfair dismissal — in this context the Industrial Court relied, to a significant extent, on the contents of international labour standards (especially the Termination of Employment Recommendation and Convention).

Unfair termination of employment by the employer (unfair dismissal) is now regulated in Chapter VIII of the Labour Relations Act. But the employee still requires some form of protection against the employer’s arbitrary exercise of its powers during the course of the employment relationship. This is where the current focus of the unfair labour practice jurisdiction lies: unfair conduct on the part of the employer against the employee, but the conduct does not entail the termination of the employment relationship.

Until 2002, the unfair labour practice was contained in item 2 of Schedule 7 of the Labour Relations Act of 1995 (“LRA”). Unfair discrimination was removed from the ambit of the unfair labour practice in 1998 (as it was transferred to become Chapter II of the Employment Equity Act 55 of 1998). Now the unfair labour practice has returned to section 186(2) of the LRA after the 2002 amendments.

Section 186(2) defines an unfair labour practice as any unfair act or omission that arises between an employer and employee involving any of the following:

  • Unfair conduct by the employer relating to the promotion or demotion of an employee
  • Unfair conduct by the employer relating to the probation of an employee (but excluding disputes about dismissals for a reason relating to the probation)
  • Unfair conduct by the employer relating to the training of an employee
  • Unfair conduct by the employer relating to the provision of benefits to an employee
  • The unfair suspension of an employee or any other unfair disciplinary action (excluding dismissal)
  • The failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement
  • An occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act 26 of 2000 on account of the employee having made a protected disclosure as provided in the Protected Disclosures Act.
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