Dismissal or Unfair Labour Practice

We are often asked the difference between a dismissal and an unfair labour practice. This article aims to clear up any confusion you may have.

A dismissal is as a result of, if done procedurally correctly, a disciplinary hearing whether for misconduct or a no fault dismissal for incapacity or ill health.

An unfair labour practice on the other hand is defined in section 186 (2) of the LRA as follows:

Unfair labour practice means any unfair act or omission that arises between an employer and 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.

A key difference between a claim for dismissal and an unfair labour practice is that you have to still be employed in order to lodge a dispute for the latter. It is also necessary to exhaust all internal remedies e.g. lodge a grievance, before referring the dispute to the CCMA/Bargaining Council.

A few examples of unfair labour practices would be the withholding of an Employee’s benefits for no reason, moving an Employee into a lower position with no legal justification for doing so, unfair promotion matters as discussed in a previous article and unfair suspension from work with no proper process followed or reasons given.

An Employee, In order to lodge a referral to the CCMA/Bargaining Council for an unfair labour practice, has to do so within 90 days from the date of the perpetration of the unfair labour practice by the Employer or 90 days from the Employee becoming aware of the unfair labour practice. Importantly, ‘days’ in these two forums means calendar days. In other words, weekends and public holidays are to be included when calculating days. Furthermore, it is important to know that you exclude the first day and include the last day when calculating days. The last day of any period must be excluded if it falls on a Saturday, Sunday, public holiday or on a day during the period between 16 December to 7 January.

Although the Act defines an unfair labour practice, this does not negate the fact that what constitutes an unfair labour practice is still debated in our Courts and the CCMA.

Ivan Israelstam in his article on the HR Pulse website on 13 August 2018 referred to the following case law to demonstrate how the different legal forums, including our Courts, view unfair labour practice disputes:

In the case of SAPU obo Louw vs SAPS (2005, 1 BALR 22) the arbitrator found that failure to pay the employee a merit award did fall within the definition of an unfair practice. This is despite the decision of another arbitrator made at the same forum a little earlier that payments of merit awards do not fall into the definition of unfair labour practices.

In Solidarity obo Kern vs Mudau & others (2007, 6 BLLR 566) the employee, a senior personnel officer was moved to the post of committee officer after the incorporation of one municipality into another. The employee alleged that he had, via this move, been unfairly demoted. The arbitrator decided that the action of the employer did not constitute demotion. When the employee took the matter on review the Labour Court found that the employee had in fact been demoted because the position of committee officer was lower than that of a senior personnel officer. The Court said that the arbitrator did not understand the concept of demotion. Also, the job that the employee had been doing was equivalent to that of a HR Manager. The Court therefore ordered the employer to pay the employee the difference between the annual salary he had been paid and the annual salary of a HR Manager.

Let us take the hassle out of trying to decipher whether your dispute relates to an unfair labour practice or not by booking a consultation with us. We are eager to assist you!