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
