By Magate Phala – Section 185 of the Labour Relations Act, 66 of 1995, as amended provides that every employee has the right not to be: (a) unfairly dismissed, and (b) subjected to unfair labour practice.
Section 186(2) of the LRA supra further defines 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 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 unfair disciplinary action short of dismissal in respect of an employee,
- a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement or
- an occupational detriment, other than dismissal, in contravention of the Protected Disclosure Act, 2000 (Act 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.
It is advisable that an employee who has a claim of unfair labour practice against the employer should first exhaust internal grievance remedies before referring such a dispute to the CCMA or Bargaining Council. Even in instances where no grievance procedures exist, the aggrieved employee may still bring such a complaint and/or grievance to the attention of management.
Therefore, if such complaint and/or grievance is not resolved to the satisfaction of the employee or it is not resolved at all, such aggrieved employee may refer an unfair Labour Practice dispute to the CCMA or relevant Bargaining Council within ninety days.
Normally the grievance process should not be used as a parallel mechanism to appeal and/or review complaints or feeling of injustices which arose out of the disciplinary actions. If an employee is unhappy about the outcome of the disciplinary process, such employee should internally appeal against such outcome (short of dismissal) and if the appeal is unsuccessful then declare an Unfair Labour Practice dispute directly with the CCMA or Bargaining Council.
Although the Labour Relations Act contains no definition of the word “unfair”, Dr John Grogan in his book entitled “Employment Rights” second edition (Juta 2014) at page 114-115, adequately summed up the hallmarks of “Unfair Conduct” as follows:
- where one person or group of people is favoured over another on the basis of irrelevant criteria,
- where people are treated arbitrarily, i.e. not in accordance with established rules,
- where people are treated irrationally, i.e. on the basis of unproven or untested views and suppositions or
- where people are penalised or denied an advantage without being able to state their case.
In Department of Justice v Commission for Conciliation, Mediation and Arbitration
and Others (2004) 25 ILJ 248 (LAC) at para 73, the Court held as follows:
“An employee who complains that the employer’s decision or conduct in not appointing him constitutes an unfair labour practice must first establish the existence of such decision or conduct. If that decision or conduct is not established, that is the end of the matter. If that decision or conduct is proved, the enquiry into whether the conduct was unfair can then follow. This is not one of those cases such as disputes relating to unfair discrimination and disputes relating to freedom of association where if the employee proves the conduct complained of, the legislation then requires the employer to prove that such conduct was fair or lawful and, if he cannot prove that, unfairness is established.”
In Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 1120 (LAC) at para 51, the Court held that:
“An employee who wants to use the unfair labour practice jurisdiction in section 186(2)(a) relating to promotion or training does not have to show that he or she has a right to promotion or training in order to have a remedy when the fairness of the employer’s conduct relating to such promotion (or non-promotion) or training is challenged.”
In NUM & others v Martin & East (Pty) Ltd (2013) 34 ILJ 978 (LC), the court held that “if there is no statutory or contractual prohibition, fair suspension without pay may be considered as an alternative to dismissal of an employee. Suspension without pay as a form of disciplinary penalty is not impermissible and does not contravene the BCEA. The provision prohibiting deductions from remuneration without consent is premised on remuneration or wages becoming due after a tender of services or actual performance by an employee”.
In Mogothle v Premier of the North-West Province and Another  4 BLLR 331 (LC), Van Niekerk J held that suspensions must, as a minimum requirement satisfy the following three criteria. The first two relate to substantive fairness, and the third relates to procedural fairness –
The employer must have a justifiable reason to believe, prima facie at least, that the employee has engaged in a serious act of misconduct.
There is some objectively justifiable reason to deny the employee access to the workplace based on the integrity of any pending investigation into the alleged misconduct, or some other relevant factor that would place the investigation or the interests of affected parties in jeopardy.
The employee is given the opportunity to state a case or to be heard before any final decision to suspend is made.
Written by Magate Phala, who specialises in Labour Law and writes in his private capacity. For more information, kindly contact Magate Phala at firstname.lastname@example.org