Study Unit 6 Flashcards
Sec 186(2) of thre LRA, Unfair Labour Practice
what is an unfair labour practice according to s186(2)?
any unfair act or omission that arises between an employer and an employee involving
-(a) unfair conduct by employer relating to
PROMOTION, DEMOTION,
PROBATION,TRAINING or PROVISION OF
BENEFITS to employee
-(b) unfair SUSPENSION of employee or
any other unfair DISCIPLINARY ACTION
SHORT OF DISMISSAL
-(c) failure or refusal by employer to
REINSTATE or RE-EMPLOY FORMER
EMPLOYEE as per agreement
-(d) OCCUPATIONAL DETRIMENT, other
than dismissal, in contravention of the
Protected Disclosures, Act 26 of 2000, on
account of employee having made a
protected disclosure
Unfair Labour Practice
What is an unfair labour practice in terms of promotion?
Not appointed after applying and
interviewing / acting in position / reasonable expectation created
* Onus on employee to prove employer
failed/refused to promote and failure/refusal was unfair
Unfair labour Practice Case Law
what did the Dlamini case state regarding the principles that the courts must apply in disputes for promotion as an ULP?
Dlamini case
- Should be hesitant to intervene with employer’s decision unless gross unreasonableness where mala fides may be drawn
- Not employment agency, must just ensure that employers did not act unfairly towards candidates during promotion selection process
- was better candidate overlooked on discriminatory grounds?
- Should not be concerned with reasons for overlooking candidate, but rather PROCESS which led to decision to overlook. Reasons relevant only if related to fairness of process
Unfair Labour Practice CASE LAW
What did the Mashaba case state regarding the role of courts in terms of promotion?
Promotion
The employer has discretion to choose and the decision should not be interfered
with unless it was exercised vitiated by malice or fraud”
Unfair Labour Practice Case Law
What are the facts of the Dep. Rural Development and Agrarian Reform v GPSSBC case regarding promotion as an ULP?
Promotion
- Employee acted in position for many years but was not promoted, with employer failing to complete the appointment process and fill the critical and funded post
- GPSSBC commissioner:
⚬ found that employer had committed ULP; and
⚬ appointed employee into position
-Against Dlamini principle to not interfere with an employers decision
>weighed against the fact that employee was the only eligible candidate who demonstrated competence and exemplary performance AND that the post was still vacant
What did the court uphold in the Dep. Rural Development and Agrarian Reform v GPSSBC?
- LC: upheld commissioner’s award as employer’s decision not to promote was taken unfairly and unreasonably
- LAC: confirmed that courts must be slow to interfere BUT ONLY WHEN
decision/reasoning is because there is evidence that employer made unreasonable consideration/ decision was arbitrary
-Upheld LC judgement
Unfair Labour Practice Case Law
what did the Hlophe case state regarding promotion as an ULP?
Retrospective promotion ordered by court
- LC found that successful candidate failed to apply for position and even if she had applied, her application did not include her matric certificate; therefore employer committed ULPs related to promotion, and successful candidate’s promotion set aside
-Court held that s186(2) doesn’t create a right to promotion but confers a right to be treated fairly in promotions
What is a demotion?
- moved to lower rank/level
- diminution in status
- loss of pay
- ‘transfer’ resulting in changes in conditions and reduction in status and
responsibilities - incorrect classification of position and failure to timeously correct it
-Onus is on employee to prove demotion and that it was unfair. Employer must
show sound reason and that fair procedure followed
Can a demtion be a disciplinary sanction?
Yes, but just because employee has agreed to demotion as alternative to
dismissal, does not mean that they have waived their right to challenge the
fairness of the demotion according to the Taliep Case
How does probation operate?
Probation is regulated by the code of good practice
=Permits a reasonable probation period for purpose of ensuring employer doesn’t retain an employee who fails to perform
=Employer can require a newly hired employee to serve probation period before appointment is confirmed
=Probation should not be used to prevent permanent employment
* Unfairness during probationary period
can be basis for ULP claim:
-probationary period unreasonable
considering nature of job
-probationary period unreasonably
extended
- Probationary period extended for
reasons unrelated to purpose of
probatio
When may claims for ULP relating to training arise?
1.A contract of employment
2.A Collective agreement
3.Employee shows reasonable expectation to be trained
4.From the EEA which requires designated
employers to implement suitable
training measures (in line with AA)
5.From SDA act which helps disadvantaged SAns overcome consequences of apartheid education/other discrim. workplace practices
what was the narrow meaning of benefits according to Schoeman v Samsung?
something extra apart from remuneration, therefore commission received not
a benefit, and had to arise from employment contract/legislation
what is the broad meaning of benefits according to Appollo Tyres?
Remuneration def wide enough to include benefits
o Benefit = right/entitlement ito contract/legislation but also any advantage/privilege afforded to employee ito practice or policy subject to employer’s discretion
=To prove there was an ULP -Must be pre-existing right/entitlement to be ULP challenge, and must prove employer acted unfairly
Suspension
what are the 2 types of suspensions?
Disciplinary sanctions and precautionary suspensions and they both fall in section 186 of the LRA
Suspensions
what is precautionary suspension?
suspension pending disciplinary enquiry
suspension is effected to allow an investigation to be conducted and enable smooth and timeous icompletion of proceedings
Suspension
How is suspension a disciplinary sanction?
Outcome of the disciplinary enquiry could result in suspension as a penalty
Unfair disciplinary action short of dismissal
what 4 factors ensure a suspension is fair?
1.Relevant disciplinary code is followed
2.suspension not used to punish the employee
3.employee informed of reason for the suspension
4.employee should be paid for the period in full
what makes a suspension an unfair labour practice?
1.unreasonably long;
2.non-compliance with disciplinary code;
3.no opp to make representations prior to suspension
suspensions
what did the Long case state regarding suspensions?
No need to make representations as long as the suspension is precautionary and not punitive
Disciplinary Action short of dismissal
what is disciplinary action short of dismissal?
Warnings, transfers, suspension w/o pay, short time imposed as disciplinary measure and not for operational
requirements
Suspensions
what factors did the Edumbe Municipality case establish regarding the procedural and substantive fairness of a suspension?
-Employer must show that at the time of suspending the employee there were:
1.allegations that they committed a serious offence
2.The employer reasonably believed that the employees presence in the workplace would jeopardise the investigation/safety of any person or property
-An employer not required to prove the guilty of an employee in an ULP dispute concerning question of fairness of the suspension
Refusal to reinstate
what is a refusal to re-instate or re-employ an employee in terms of any agreement?
S186(2)(c)-when an employer fails to reinstate/re-employ a former employee in terms of any agreement the failure/refusal is an ULP
Disciplinary Action short of dismissal
Does scheduling and later withdrawal of DH constitute disciplinary action short of dismissal?
Laubscher v GPSSBC (LC) - The scheduling and later withdrawal of a DH found to constitute disciplinary action short of dismissal
BUT overturned in DIRCO v Laubscher (LAC) case-Court held that a DH must have commenced+concluded and a sanction must have been imposed. If DH had not commenced/abandoned without imposing a penalty, then it is not disciplinary action short of dismissal according to S186(2)
what 5 requirements must be met in order for a refusal to reinstate be an ULP?
1.Employee must have been previously employed by the employer
2.In terms of an agreeement
3.Suitable vacancy must exist
4.employer must have failed/refused to reinstate the former employee in terms of the agreement
5.time period to reinstate the employeee must be reasonable practical
Occupational detriment on account of protected disclosure
what is occupational detriment?
Protection of whistleblowers
-subject to disciplinary action
-dismissed/harrassed/demoted
-foced transfer
-denied a transfer
-Unilateral change to terms and conditions of employment which is prejudicial
-Refused reference/provided with adverse
reference
-Denied appointment
Occupational detriment on account of protected disclosure
when is it not permitted to lodge an ULP in terms of occupational detriment?
-Cannot institute ULP if the occupational detriment suffered is dismissal.
-Must automatically lodge an
unfair dismissal dispute
Occupational detriment on account of protected disclosure
what is a protected disclosure?
A disclosure is a disclosure of information relating to the conduct of an employer/employeewith reason to believe that info shows/tends to show
improprieties eg criminal activity/safety risk/miscarriage of justice
A disclosure made to specific persons or bodies namely:
-legal advisor
-an employer
-membeer of cabinet
-Public protector/auditor general
Occupational detriment on account of protected disclosure
what are the requirements for a general protected disclosure?
➢ Good faith
➢ Reasonable belief that info disclosed is substantially true
➢ NOT made for purposes of personal gain
Occupational detriment on account of protected disclosure
what did the Tshishonga v Minister of Justice case state regarding an Occupational detriment on account of protected disclosure?
- Cabinet Minister arranged that his friend be appointed as a liquidator
- An employee reported the incident to the PP and A-G,but nothing was done
- The employee was transferred to a division with no functions and was also suspended
- The employee reported it to the media
- LC held:
o Was a protected disclosure and an occupational detriment
o 12 months compensation awarded to the
employee
Occupational detriment on account of protected disclosure
What are the requirements for establishing an ULP based on occupational detriment?
1.Employee made a disclosure in terms of the PDA
2.Employer acted against the employee which amounts to occupational detriment in terms of PDA
3.Causal Link between the disclosure and the detriment
Dispute Resolution Procedure for ULP disputes
what is the dispute resolution procedure for ULP disputes?
Referral to BC/CCMA in writing within 90 days of ULP for conciliation
* If conciliation fails, refer t oarbitration
* EXCEPTION:
o Disputes regarding occupational
detriments can be referred to any
court including the LC
o Probation: special single expedited
con/arb process where arb is held
immediately after failure to resolve
dispute during concilliation
- REMEDIES:
o Reinstatement/re-employment
o Compensation of max 12 months
