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you have a right to fair labour practices

By Lavery Modise and Sicelo Mngomezulu | Aug 04, 2009 | COMMENTS [ 0 ]

SECTION 186(2) of the Labour Relations Act defines an unfair labour practice as an unfair act or omission that arises between an employer and an employee.

It involves, among other things, unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee; the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; and a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement.

The above section gives effect to section 23(1) of the Constitution, which provides that everyone has the right to fair labour practices.

"Unfair" is generally understood to mean a failure or refusal to meet an objective benchmark and might include arbitrary or inconsistent conduct, whether negligent or intended.

Unfairness might either be substantive or procedural.

To constitute an unfair labour practice the act or omission complained of must be between an employee and his or her own employer.

An employee referring an unfair labour practice dispute must prove that the conduct or practice complained of falls within the terms of one of the forms expressly listed in the definition.

It is important to note that a mere perception of unfairness does not necessarily constitute unfair conduct.

Furthermore, alleged unfair conduct by an employer committed after termination of the employment relationship does not constitute an unfair labour practice.

A common form of unfair labour practice is "unilateral change to terms and conditions of employment".

In MITUSA v Transnet Ltd, the Labour Appeal Court held that where unilateral amendments to terms and conditions of employment also constitute conduct falling under the definition of unfair labour practice, the affected employees may choose between strike action and referring the matter to arbitration.

Most unilateral variations of terms and conditions of employment can be attacked as breaches of contract.

For example, the unilateral reduction of contractual overtime might be struck down by court.

The Labour Appeal Court in Magnum Security (Pty) Ltd v PTWU & Others observed that the proper way for an employer to effect such a change under the LRA is to institute a lockout and demand that the employees accept the reduction, or face dismissal.

An employee alleging an unfair labour practice may refer a dispute to the Commission for Conciliation, Mediation and Arbitration or a council with jurisdiction.

The referral may be made within 90 days from the date of the alleged conduct or from the date the employee became aware of the action.

Modise is deputy chairperson of Eversheds and Mngomezulu an associate at Eversheds


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