UNFAIR LABOUR PRACTICE

   

The LRA identifies a variety of employment practices, apart from dismissals, which are regarded as unfair. In order to succeed in a claim for unfair labour practice, an employee must prove that the alleged unfair act falls within the definition of an unfair labour practice as provided by the Labour Relations Act 66/1995.

The Act defines an unfair labour practice as any unfair act or omission that arises between the employer and the employee in specific instances. One such an instance is the unfair conduct of an employer relating to the promotion, demotion, probation or training of an employee or relating to the provisions of benefits to an employee. Although reference is made to an unfair act relating to probation, the Act explicitly excludes from this definition dismissals for reasons relating to probation. Dismissals relating to probation should be dealt with in terms of Schedule 8 of the Act. Another instance may be were an employer unfairly suspended an employee or took unfair disciplinary action, short of dismissal, against an employee. The Act also provides that an employer is committing an unfair labour practice if the employer fails to reinstate or re-employ a former employee in terms of any agreement. The Act also defines an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000), on account of the employee having made a protected disclosure defined in that Act as an unfair labour practice. It will be noted out of the definition of an unfair labour practice, as provided by the Act, that dismissals are excluded as a form of unfair labour practice.

The Act gives an Arbitrator the power to determine any unfair labour practice dispute referred to the Arbitrator, on terms that the Arbitrator may deem reasonable, which may include an order for reinstatement, re-employment or compensation.