It is commonly accepted that relationship between an employer and an employee has its own upsides and downsides. Considering the intricate nature of these relationships and the importance of maintaining fairness in the workplace, it is necessary and important that it be regulated by law.
The Constitution of South Africa 1996 is the supreme Law in South Africa and any law inconsistent with is invalid and the obligations imposed by it must be fulfilled. In Chapter 2 of the Bill of rights under section 23 deals with Labour Relations. In terms of Section 23(1) everyone has the right to fair labour practices.
WHAT UNFAIR LABOUR PRACTICE
In terms of Section 186(2) of the Labour Relations Act, unfair Labour Practice relates to unfair act or omission by the employer relating to
- the promotion, demotion or training of an employee or relating to the provision of benefits due to an employee.
- The unfair suspension of an employee or any other disciplinary action short of a dismissal
- The failure or refusal of 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 Protection of Disclosures Act, 2000 on account of an employee having made a protected disclosure as defined in that Act
- Unfair Dismissals.
WHO DOES IT APPLY TO?
The definition in the Labour Relations Act requires that the labour practice must have taken place between an employer and an employee, as such it is necessary that there be an employment relationship.
When considering the listed labour practices, it proves that the protection does not extend to job applicants as well. It is also important to note that only an employee can bring a claim for unfair labour practice and not the employer.
In NEWU V CCMA & OTHERS  2 BLLR 165(LC) the Labour Court had to decide whether the definition is inconsistent with section 23(1) of the Constitution which affords the right to “everyone”. The court held that although unfair conduct by the employee can breach the employer’s constitutional right to fair Labour practice, the employer however had other remedies available to them. Furthermore, it held that the Labour Relations Act was not required to regulate Unfair Labour practices comprehensively, and as the conduct of the employer was not embraced by the statutory definition of unfair Labour practices, the failure to include employers in section 186(2) was not unconstitutional.
WHERE TO GO
When you have a dispute regarding the different forms of unfair labour practice first be referred to a bargaining council at the workplace for conciliation.
If there i no council than the matter may referred to the CCMA for conciliation and if that is not successful for arbitration. It is advised that you solicit the assistance of an Attorney to represent you during the arbitration and to assist in presenting a substantive case before the commissioner
Such a dispute must be referred to the CCMA 90 days after the aggrieved party has been made aware of the occurrence. To learn more on this topic contact our office where qualified attorneys are available to assist you in winning your unfair Labour Practice claim.
- THE CONSTITUTION OF THE REPUBLIC SOUTH AFRICA OF 1996.
- THE LABOUR RELATIONS ACT 66 OF 1995.
- VAN NIEKERK AND SMIT LAW AT WORK 3RD EDITION (2015).
- NEWU V CCMA & OTHERS  2 BLLR 165(LC).
Disclaimer: This article is general information and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein.