The work environment, for many, is a place associated with opportunity, growth and development. This is especially the case within the metal and engineering industry. The workplace is also associated with diversity, hierarchy, leadership roles and responsibility. Unfortunately, in some cases, the use of this hierarchy and leadership leads to unfair labour practices. If not managed effectively, unfair labour practices can severely impact employee morale, the organisations’ reputation and have financial consequences. Below we deep dive into what unfair labour practice is and how you can prevent this as an employer.
What Is Unfair Labour Practice?
According to the Labour Relations Act (LRA) Section 186 (2) and Section 23(1) of the Constitution, every employee has the constitutional right to fair labour practices. The Employment Equity Act further emphasises this. But what constitutes unfair labour practices?
In simple terms, unfair labour practices reference the unfair treatment by an employer of an employee or job applicant. This treatment is stipulated in the LRA and falls under four particular instances. These include:
- The unfair conduct or unfair act of the employer relating to the promotion, demotion or training of an employee or relating to the provision of benefits to an employee
- The unfair suspension of an employee or any other disciplinary action short of dismissal in respect of an employee
- 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 Protected Disclosures Act, 2000, on account of an employee having made a protected disclosure as defined in that Act
We examine the terms of each of the instances mentioned above in more detail below and explain how they constitute unfair labour practices.
Unfair Conduct Relating to Promotion, Demotion, Training Or Benefits/Wages Negotiations
Unfair conduct relating to promotion, demotion, training or benefits/wages negotiations usually involves cases where the employer does not follow its own promotion or training policy, or where the employee alleges that the promotion, demotion or training is, in itself, unfair.
What would this kind of unfair labour practice look like in the workplace? In the case of a promotion, if a test is set and all employees pass, but all except one employee is promoted, the employer may be guilty of unfair conduct against that employee. If there is a case where the employee alleges that the failure to promote is based on discrimination, the dispute must be referred to the Employment Equity Commission. This is because unfair discrimination is dealt with under the Employment Equity Act. Discrimination could be based on race, gender, ethnicity, social origin, colour, sexual orientation, age, disability etc. and could be direct or indirect.
An example of unfair conduct, based on benefits, would be when all employees are given transport allowances, but one is discriminated against and not given this allowance. In some instances, this will be an unfair labour practice. The same treatment would be relevant for training. If all employees were given training, but one or a few were not, for no apparent or fair reason, then this may also be considered an unfair labour practice.
Fair labour practices ensure that all employees have the same opportunities in relation to promotions, training, or benefits.
The unfair suspension of an employee or any other disciplinary action short of dismissal in respect of an employee
An employee’s suspension is deemed unfair if the employee is on suspension for an unreasonably long period and where there is no plausible reason for the delay in finalising the inquiry. Suspension as a disciplinary sanction is the only instance where the suspension can be unpaid. Whilst on suspension, pending a disciplinary enquiry, an employee must be paid. Non-payment must be referred to the Department of Labour as a non-payment is a salary dispute.
An example of unfair suspension would be where an employee and their supervisor argue, and the employer suspends only the employee, even if it was the supervisor who was to blame. In this case, the employee would generally refer the dispute relating to the unfairness of the disciplinary measures taken based on the merits of their innocence and concerning the issue.
Refusal by an employer to reinstate a former employee in terms of any agreement
An employer’s refusal to reinstate a former employee in terms of any agreement is a type of unfair labour practice that requires an agreement to have been in existence. This agreement could have been verbal, written, individual or collective. These kinds of disputes usually arise during retrenchment situations.
In this case, the labour practice would be unfair if there was an agreement between the employer and a retrenched employee to the effect that the employee will be re-employed or reinstated when a vacancy becomes available, and the employer does not re-employ that employee. In this case, the conduct on the part of the employer may constitute an unfair labour practice.
Another example of unfair labour practice would be if an employer who dismissed several employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another. If no such agreement is in place, then the dispute may be referred to as an unfair dismissal based on operational requirements.
Unfair treatment creating an occupational detriment for an employee who made a protected disclosure
A disclosure is the act of making secret or new information known. A protected disclosure is a disclosure made by an employee who believes that the employer (or one of its employees) has or is attempting to:
- Conceal information relating to a criminal offence
- Non-compliance to a legal obligation
- Endanger a person’s health or safety
- Cause damage to the environment
- Commit unfair discrimination
- Conceal a miscarriage of justice that has occurred.
If an employee makes a protected disclosure regarding the employer’s conduct and is then being discriminated against for making such disclosure, for example being demoted or not given access to training, the employer would be guilty of unfair labour practice.
Fair procedure for handling unfair labour practices in the workplace
Handling unfair labour practices within the workplace is often complex and heightened with emotion. When an unfair labour dispute occurs, it is recommended to try and resolve the issue or problem within the company first through mediation and conciliation. In many cases, this would include setting up a meeting with the Human Resources department, the managers or supervisors and the employee in question. During this meeting, it is vital to formalise the complaint in writing. This will act as proof that the issue was raised.
If it comes to a point where the issue remains unresolved and no remedies are agreed on, Section 191 of the Labour Relations Act states that the employee has 90 days from the date of the act or omission which allegedly constitutes an unfair practice to lay an unfair labour practice dispute with the CCMA or bargaining council. If the dispute still remains unresolved after this process, it can be referred to arbitration.
Unfair Labour Practice Implications for an employer
The implications of unfair labour practice not only affects the employee in question but the employer as well. If the dispute does go to the CCMA, bargaining council, labour court or arbitration and the court finds that the employer is guilty of unfair labour practices, they may have to award the employee with up to a maximum of 12 months’ compensation. This could differ depending on the circumstances of the case.
This process not only impacts the business financially but may also reflect poorly on the company’s business image and break down the employment relationship. It can also heavily affect employee morale and overall company culture leading to a mistrust of management and those in leadership positions. All of which have a negative impact on productivity, operations and ultimately profitability.
A business needs to make sure that there are proper protocols in place and that these are being checked and followed when decisions are being made on promotions, demotions, training, reinstatement and protected disclosure.
Unfair labour practice has the ability to impact your business and workplace significantly. This is why it is your responsibility as the employee to ensure that the company is following the right protocols necessary to ensure fairness in every aspect of labour relations. Employers should aim to create a working environment that is rooted in opportunity, growth, development and fairness for all employees.