UNFAIR LABOUR PRACTICE REMOVES THE balance of equality

Ivan Israelstam is the CEO of Labour

Law Management Consulting. He

is a leading practitioner in labour

law and pragmatic labour relations.

He holds an honours degree from

The University of the Witwatersrand

and IPM diplomas in Personnel

Management and Training.

He has acted in the capacity

of a part-time commissioner

with the CCMA and the

chairperson of Labour

Affairs Committee of SACCI.

Currently, Ivan is the Vice

Chair of the Labour Market

Committee of the SA Board for People Practices. Ivan is

a regular labour law columnist for several prominent

publications. He is the author of “Walking the New

Labour Law Tightrope”, “Labour Law for Managers

Practical Handbook” and “The Gold Future or the

Cold Future.” He is frequently invited to speak on

labour issues on television and radio, as well as

at conferences and seminars.

The definition of ‘unfairness’ does not feature in the Labour Relations Act (LRA). However, I propose that ‘unfairness’ can be identified

in line with the legislation if employers infringe on an employee’s entrenched rights, take a one-sided approach to an issue, implement

unnecessary measures and/or act inappropriately under given circumstances.

It is therefore important to understand how the concept of ‘unfairness’ is applied in labour law. Examining the concept of ‘unfairness’ in

labour practice involves referencing the LRA, but incorporating how arbitrators interpret it at the CCMA, bargaining councils and private

dispute resolution bodies.

Section 186(2) of the LRA defines “unfair labour practice” as “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 dismissals of probationers)

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,

on account of the employee having made a protected

disclosure defined in that Act.”

The word “unfair” is mentioned several times in the definition.

For example, under paragraph (b) of the definition, it refers to

“…any other unfair disciplinary action….”. However, without

explaining what ‘unfair’ means, the entire definition of unfair

labour practices is meaningless. ‘Unfair’ labour practices are

illustrated in the following cases:

In Bosman vs SA Police Services (2003 5 BALR 523), Bosman

was selected as the second-best candidate for a promotion.

However, another candidate, a ‘Black’ Woman, was selected

for the position. However, the arbitrator found that the failure

to promote Bosman was unfair and ordered the employer to

promote Bosman. The ‘unfairness’ decision here was made on

the basis that:

> Bosman was the best candidate and therefore had the

right to be promoted; and

> the decision to promote the other candidate was

inappropriate as she was not the best one. Furthermore,

there was no proof that her promotion would have served

the purpose of Affirmative Action.

n Tsaperas & Another vs Clayville Cold Storage (Pty) Ltd (2002

11 BALR 858), the arbitrator found that the suspension without

pay of employees constituted an unfair labour practice. The

employer was ordered to pay the suspended employees the

remuneration that was withheld. The basis for ‘unfairness’ in

this case is that, at the time of suspension, the employees had

not been found guilty of any misdoings and could therefore not

be punished.

In Van Amstel vs Eskom (2002 19 BALR 995), the CCMA found

that the employer’s removal of the employee’s travel allowance

was unfair. The ‘unfairness’ here lies in infringing an employee’s

right to a benefit for which he qualified. There was no legitimate

reason for depriving him of this benefit.

At the root of many, if not all, ‘unfair’ practices is an employer’s

attempt to gain something. There is nothing wrong per se with

an employer gaining something, as long as the employee does

not lose out unfairly as a result. Thus, an employer is entitled to

protect its interests or save money by disciplining an employee

or changing the employee’s benefits, providing the discipline

has merit or the loss to the employee is justifiable.

As always, the challenge for the employer is to judge whether its

actions have merit and are justifiable. Due to the complexity of

the law, such judgements cannot be made through guesswork.

Therefore, every employer must obtain comprehensive and

in-depth expertise in labour law through a reputable labour

law expert, including training of all levels of management in the

application of labour law.