Individual Labour Law

LWLLA2-B33

Eduvos (Pty) Ltd (formerly Pearson Institute of Higher Education) is registered with the Department of Higher Education and Training as a private higher education institution under the
Higher Education Act, 101, of 1997. Registration Certificate number: 2001/HE07/008
Week 5: Unfair Labour Practice
Introduction

• Prior to 1979 no legal recourse for ULP

• Lawfulness and fairness – don’t always go together = Common law contract no inherent right to
fairness
• Labour jurisprudence developed based on equity and fairness, by 1994 it was developed enough to
add into S 23 Constitution
• Interplay between Constitution and LRA (residual ULP were added into the LRA)

• The old definition of ULP in the 1956 LRA was based on the Industrial Court developed based on
concept of fairness first time courts looked at fairness not just lawfulness)
• Original definition:
• Act or omission (not a strike or lock-out) that unfairly effects / prejudices employees /
disruption of employer’s business / creates labour unrest / disturbed EE & ER
relationship
• Broad enough for individual and collective labour law
Define Unfair Labour Practice?
Definition

The new individual labour law framework provides for the codification of all unfair
dismissals and unfair labour practices. (chapter VIII) Also included are:
• S 186(2) of the LRA defines an unfair labour practice as meaning any unfair act or omission that
arises between an employer and an employee involving –
a) 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;

b) The unfair suspension of an employee or any other unfair disciplinary action short of dismissal in
respect of an employee;

c) A failure or refusal by an employer to reinstate or re-employ a former employee in terms of any

agreement; and

d) An occupational detriment, other than dismissal, in contravention of the Protected Disclosures

Act, 2000 (Act 26 of 2000), on account of the employee having made a protected disclosure
defined in that Act.
Who can claim ULP?
• Only an employee may be a victim of an unfair labour practice as defined in the LRA S 186(2) of the LRA
defines an unfair labour practice as meaning any unfair act or omission that arises between an employer
and an employee involving –
a) 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;

• In NEWU v CCMA the scope of the definition was considered.

• The case dealt with whether an employer could institute a claim for unfair labour practices against
employees and whether the exclusion of employers to do so ito s 186(2) was unconstitutional on the basis
that it infringed s23 [everyone]? The court held that the exclusion in terms of section 186(2) was not
unconstitutional and in addition to this, the court further stated that the employer had other remedies at its
disposal.

• It is therefore trite that S 186(2) provides a numerus clausus/closed list of unfair labour practices, however,
since s23, as a constitutional right is therefore wider, it may be possible to challenge this position in future
on the basis of s36.
Dispute

S 191 of the LRA provides that if a dispute about ULP remains unresolved after conciliation, the
CCMA/Bargaining Council with jurisdiction must arbitrate the matter.

This suggests that, conceptually at least, a dispute about ULP is a dispute of a right.

Protekon (Pty) Ltd v CCMA & others (2005) 7 BLLR 703 (LC) à used to pay travel concessions but then the
ER unilaterally withdrew this “benefit” and paid a once off bonus. The Court said that the couldn’t force
the ER to now withdraw the new system and re-implement the old one (abuse of ULP). Ees cant use ULP to
force the ER’s hand into instituting better benefits. Dispute about ULP cannot be used as an abuse.
• S 186(2) of the LRA defines an unfair labour practice as meaning any
unfair act or omission that arises between an employer and an
employee involving –

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;
Unfair Labour Practice

Promotion Demotion Probation Training

Occupational
Refusal to re- detriment on
Benefits Suspension
instate/re-employ account of a
protected disclosure
 Activity

Discuss and analyse with reference to applicable case law, how the
following may be seen to be Unfair Labour Practice.
Promotion
Demotion
Probation
Training
Benefits
Suspension
Refusal to re-instate/re-employ
Occupational detriment on account of a protected disclosure
Promotion
• Most cases dealing with unfair conduct by an employer relating to promotion concern refusals to promote
the claimant. This includes when:
1. Employees have acted in a position but are not substantively appointed to the post
2. Failure to promote a temporary employee to a permanent position’
3. Where an employer created a reasonable expectation that an employee will be promoted and then
frustrated that expectation by failing to promote an employee.

• REQUIREMENTS
• In such instances, the employee must prove that the employer refused to promote him. Having proved that
the employer refused to promote him/her, the employee must then prove that the act or omission
complained of was unfair:
a) the employer exercised discretion impulsively
b) the reason provided cannot be substantiated
c) the decision was taken on a wrong principle, or
d) the decision was taken in a biased manner
Dlamini v Toyota SA Manufacturing (2004) 25 ILJ 1513
(CCMA)

• it was held that the CCMA and our courts should be hesitant to interfere with the
exercise of the management’s decision in the absence of gross unreasonableness
which may lead the forum to draw an inference of bad faith.
• Simply put, it was held that the decision to promote falls within management’s
prerogative and the decision to promote is only reviewable if it is flawed.
• The employer must act in good faith, apply its mind to the selection and supply
reasons for its decision.
• Employees must show that they possess the attributes and skills necessary for the
position and that the person promoted does not possess the same. The mere fact
that an employee is already in a position does not guarantee a right to promotion.
• Might be a reason for the lack of promotion (i.e. s 6 EEA – operational req / AA)
Demotion
• In terms of S 186(2)(a) an employee must prove the factual demotion as
well as its unfairness.
• Demotion must involve a loss of status and benefits or a diminution in
status.
• A change in conditions or a reduction in status and responsibilities may
also constitute a demotion for purposes of ULP
• Although demotion may be imposed as a disciplinary penalty, it must be
imposed for a valid reason after a fair procedure has been followed.
• Restructuring may also be considered as an unfair demotion.
• Murray v Independent Newspaper
• Nxele v Chief Deputy Commissioer
• Mwamwende v University of Kwazulu Natal
 Probation
• The Code of Good Practice regulates the position of probationary employees.
• A probation period of reasonable duration is confirmed and should be determined
in advance.
• The purpose of a probation period is to give the employer an opportunity to
evaluate the employee’s performance before confirming employment.
• There are no hard and fast rules as to the period.
• The code sets out procedural as well as substantive requirements for dismissal
during probation.
• Probation may be extended for a reason only relating to the purpose of probation.
• An employee can be more “easily dismissed” during probation.
The requirements for a fair probationary period
1. should be determined in advance
2. should be a reasonable duration, determined with reference to:
• the nature of the job, and
• the time it would take to determine the employee’s suitability for
continued employment

• Possibilities at the end of probation:

1. Extend the probationary period to enable the employee to improve his/her

performance –only of justified e.g. complexity of the job.
2. Dismiss the employee, or
3. Confirm the appointment of the employee
 Training
• Claims for ULP relating to training can arise out of the following:
• Contract of employment
• Collective agreement
• Employee shows a reasonable expectation to be trained
• SDA has the purpose to assist disadvantaged persons in SA.
• The EEA requires designated employers, as part of Affirmative
Action to train employees to develop skills.

• Maritime Industries Trade Union of SA 7 others v Transnet Ltd & others

(2002) 23 ILJ 2213 (LAC) à ULP wrt training can be proven where the ER
has acted: inconsistently, arbitrarily / irrationally
•
Benefits
• Definition of remuneration in LRA S213: any payment in money or kind, or both in
money and in kind, made or owing to any person in return for that person working
for any other person, including the State, and “remunerate” has a corresponding
meaning.

• In SCAAWU v GARDEN ROUTE CHALETS (PTY) LTD:

• Benefits include all the rights which accrue to an employee by virtue of the
employment relationship – from wages through to additional matters like pension,
medical aid, housing subsidies and so on.

• SCHOEMAN v SAMSUNG ELECTRONIC SA (PTY) LTD:

• The Labour court held that the commission claimed by the applicant was not a
“benefit” but was part of the employee’s salary. The court held a benefit is
something other than remuneration, extra and apart from remuneration. With other
words also a material benefit, a financial benefit at cost of an employer but it must
arise ex contractu or ex lege.
• GAYLARD V TELKOM:
• The payment for accumulated leave was not a benefit but rather part of “remuneration”. The court chose to
interpret “benefits” narrowly to avoid limiting the right to strike over wages and other disputes of interest.

• HOSPERSA & ANOTHER v NORTHEN CAPE PROVINCIAL ADMINISTRATION

• The issue whether a benefit must arise out of the contract (ex contractu) was addressed and once again a
narrow interpretation was given. The extra remuneration was held not to be a benefit but rather a wage or
salary issue that is not intended to be decided by arbitration. The benefit must arise ex contractu (by virtue
of a contract of employment or a collective agreement) or ex lege (the Public Service Act or any other
applicable Act).

• PROTEKON CASE
• There is little doubt that remuneration in its statutory sense (as defined in the LRA) is broad enough to
encompass many forms of payment to employees that may, in the ordinary use of the language, properly
be described as benefits and therefore there is no closed list of employment benefits that fall within
S186(2)(a). There can be little doubt that pension, medical aid etc. fall within the scope of that term.
• à Each case judged on its own
• DEPARTMENT OF JUSTICE v CCMA & OTHERS:
• Minority judgment questioned the decision in the
HOSPERSA case that if only those rights that arose out
of contract or from the law could be benefits then the
provision would be redundant since such rights would
have been enforceable even in the absence of
S186(2)(a) (enforceable ex lege or ex contractu à
would have their own remedies) the point of s186 can
be argued as looking at benefits not arising ex lege or
ex contractu.
 Apollo Tyres South Africa v
CCMA and others
• What constitutes a benefit i.t.o section 186(2) of the LRA?
• This issue was dealt with in Apollo Tyres South Africa v CCMA and others:
• In the Apollo case the Labour Appeal Court criticizes this distinction between salaries
and remuneration drawn by the courts and describes it as artificial and unsustainable.
According to the court the definition in section 213 of the Act is wide enough to
encompass wages, salaries and most, if not all extras or benefits. Today many benefits
are payment in kind and form part of the essentialia of employment contracts.
• In the Protekon case, with reference to the Hospersa case, the judge confirmed that the
unfair labour practice jurisdiction cannot be used to assert an entitlement to new
benefits or to new forms of remuneration or new policies, as this should be left to the
collective bargaining process.
• In the Apollo judgment, Musi AJA supports the statement in Protekon, that the mere
existence of a discretion exercised by an employer does not deprive the CCMA of
jurisdiction.
What did the court in the Apollo case
define a benefit as?
• After an evaluation of the various attempts by
our courts to provide a definition, the Labour
Appeal Court stated that a benefit in terms of
section 186(2)(a) can be defined to include a
right or entitlement to which the employee
is entitled, ex contractu or ex lege, including
rights judicially created as well as an
advantage or privilege offered or granted to
an employee in terms of a practice or policy
subject to the employer’s discretion.
In which instances will the CCMA have jurisdiction to consider the fairness of an employer’s conduct
of not providing a benefit?

In instances where the

Where the employer fails
employer exercises a
to comply with a
discretion that it enjoys in
contractual obligation that
terms of a contract of the
it has towards the
scheme conferring the
employee; and
benefits.
 Suspension
• S 186(2) of the LRA defines an unfair labour practice as meaning any unfair act or
omission that arises between an employer and an employee involving
• (b) The unfair suspension of an employee or any other unfair disciplinary action
short of dismissal in respect of an employee;

• Suspension could be a penalty or it could be it could be affected pending a

disciplinary enquiry.
• A suspension as a disciplinary inquiry is not meant to be punitive as the allegation of
misconduct has not been proved.
• During the suspension, the employee must be provided with reasons for his/her
suspension as well as the length and duration thereof.
• The employee must be paid for the period of suspension.
• If the suspension is in place for an unreasonably long period, it may constitute an
ULP.
 • S 186(2)(d)
Protected Disclosures • An occupational detriment, other than
dismissal, in contravention of the Protected
Disclosures Act, 2000 (Act 26 of 2000), on
account of the employee having made a
protected disclosure defined in that Act.
 Activity

•What are the occupational detriments

that may arise on account of a protected
disclosure?
What are the occupational detriments that may
arise on account of a protected disclosure?
1. A person may be subjected to disciplinary action
2. A person may be subjected to dismissal, suspension, demotion, harassment or
intimidation
3. Transferring
4. Refusal to transfer or promote
5. A person may be refused a reference

• How does the law prevent occupational detriment in instances of whistle

blowing?
• There exist no common law provisions for the prevention of occupational
detriment. However, the Protected Disclosures Act has been enacted and now
regulates such instances.
 Protected Disclosures Act (PDA)
• Responsibility – the PDA states that every employer and employee has a responsibility
to disclose criminal and other irregular conduct in the workplace
• Goal? – the goal of the PDA is to promote a culture of openness and accountability
without fear of reprisal; and the eradication of criminal and other conduct
• Application – The PDA applies in both public and private sectors
• Internal procedures – Employees are encouraged to exhaust internal procedures and
remedies before disclosures are made public, thereby endeavouring to balance the
right to freedom of speech of employees in the workplace with the employers
reputational interests.
• Protection - Section 3 of the PDA provides that: No employee may be subjected to any
occupational detriment by his or her employer on account, or partly on account, of
having made a protected disclosure. S 186(2) LRA further provides that such
occupational detriment is an ULP ito the LRA.
• A ‘disclosure’ is widely defined to mean any disclosure of information, regarding any conduct of an
employer (or an employee of that employer), that is made by any employee who has reason to
believe that the information concerned shows or tends to show one or more of the following
improprieties:

• That a criminal offence has been committed, is being committed or is likely to be committed;

• That a person has failed, is failing to or is likely to fail to comply with any legal obligation to which
that person is subject;

• That a miscarriage of justice has occurred, is occurring or is likely to occur;

• That the health or safety of an individual has been, is being or is likely to been dangered
• The test used to determine whether the information shows one or more of the
abovementioned improprieties contains both subjective and objective

• Elements:
• The test is subjective in that the employee who makes the disclosure has to hold
the belief.

• It is objective in that the belief has to be reasonable. Whether the belief is

reasonable is a finding of fact based on what is believed (Tshishonga v Minister of
Justice & Constitutional Development & another).

• As a result, mere rumours or conjecture, personal opinion, expressions of

subjectively held opinions or accusations will not constitute disclosures of
information. Some factual basis must be laid by the whistle-blower to justify the
conclusion that the disclosure is based on information.
 What is a “protected disclosure”?
• A ‘protected disclosure’ is defined to mean a disclosure made to specific
persons or bodies, or so-called ‘regulators’ and it is made in good faith.
• These regulators, persons or bodies include a legal advisor, an employer, a
member of Cabinet or of the Executive Council of a province, or certain
specified persons or bodies such as the Public Protector or the Auditor-
General.

• What is a general protected disclosure?

• A ‘general protected disclosure’ is not made to a specified person or body.
• A general protected disclosure is defined in S 9(1) of the PDA to mean:
• any disclosure made in good faith by an employee who reasonably believes
that the information disclosed, and any allegation contained in it, are
substantially true, and who does not make the disclosure for purposes of
personal gain.
When will a disclosure be protected in terms
of the PDA?
The employee must have reason to
believe that the information in his or
her possession shows, or tend to
The person claiming the protection The employee must make the
show, that it falls within the range of
must be an employee; disclosure in good faith;
conduct that forms the basis of the
definition of ‘disclosure’ in section 1
of the PDA;

If there is a prescribed procedure or a

procedure authorised by the If there is no procedure either
employer for reporting or remedying Some ‘demonstrable’ nexus must
prescribed or authorised, then the
exist between the disclosure and the
any impropriety, then there must be disclosure must be made to the
occupational detriment.
substantial compliance with that employer; and
procedure;
In Communication Workers Union v Mobile Telephone
Networks (Pty) Ltd the court set out conditions to be satisfied
before a disclosure can be protected:
Resolution of Unfair
• How are disputes regarding unfair labour practices
resolved

Practice Disputes • If there is an ULP:

• First go to the CCMA for conciliation. If

conciliation fails, you will go for arbitration (at
the CCMA) in most instances.

• However, in the case of occupational detriment

on account of a protected disclosure as a ULP,
you will first go to the CCMA for conciliation
and if it fails, you go to the Labour court.

• In the case of ULP on the ground of probation,

you will the matter for conciliation and
immediately for arbitration thereafter if
conciliation fails. (this is referred to as
‘CONARB’
Questions?