HR Pulse

Unfair labour practices: a nightmare for HR professionals

As the concept of ‘unfairness’ is not defined in the Labour Relations Act (LRA), HR professionals have been left scratching their heads about what it really means if something is unfair. To shed some light on the subject, I propose that something an employer does is ‘unfair’ in labour law if it infringes the employee’s fundamental rights, is one-sided, unnecessary and/or inappropriate under the circumstances.

How is ‘unfairness’ applied in labour law?

As the LRA does not help us out with a definition of unfairness, we need to examine the concept of ‘unfair labour practice’ - as it is referred to in the LRA and interpreted by arbitrators at the CCMA, bargaining councils and private dispute-resolution bodies - to find out what ‘unfair’ really means.

Section 186(2) of the LRA states that an unfair labour practice is: “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.”

Unfair is mentioned several times in the above definition but what does ‘unfair’ actually mean?

Without an explanation of what ‘unfair’ means, the entire definition is meaningless – how can you decipher what an unfair labour practice means if you do not know what ‘unfair’ itself means?

How do CCMA arbitrators resolve labour disputes?

To decide if an employer’s act is fair or unfair, let us examine the way arbitrators at the CCMA attempt to resolve labour disputes.

In the case of Bosman vs SA Police Services (2003 5 BALR 523):

• Bosman had been selected by a selection committee as the second-best candidate for a promotion. A black woman had been selected as the first choice for the position.
• The SAPS provincial commissioner then amended this selection decision, recommending that Bosman be the first choice for the promotion. 
• However, the committee decided that the black woman should be promoted because of representativeness of the population group.
• However, at arbitration the committee was unable to prove that the:

            -     Appointment of the black woman would have promoted representativeness, and

            -     Black woman was the best candidate.

In the light of this, the arbitrator found that the failure to promote Bosman was unfair, i.e. not right, and ordered the employer to promote her.

The ‘unfairness’ decision here was made because:

• Bosman was the best candidate and therefore had the right to be promoted, and
• The decision to promote the black woman was inappropriate because she was not the best candidate. (There was no proof that her promotion would have been an affirmative action appointment.)

In Tsaperas & Another vs Clayville Cold Storage (Pty) Ltd (2002 11 BALR 858), the arbitrator:

• Found that employees’ suspension without pay constituted an unfair labour practice, and
• Ordered the employer to pay to the employees the withheld remuneration.

The basis for ‘unfairness’ in this case is that, at the time of the suspension, the employees had not been found guilty of any wrongdoings and could therefore not be punished by his remuneration being withheld:

• The suspension itself was not unfair but the punitive withholding of the employees’ pay was unfair.

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 as there was no legitimate reason for depriving him of this benefit.
• Here, the ‘unfairness’ lay in the infringement of an employee’s right to a benefit he qualified for and in the inappropriateness of removing the benefit.

At the root of many - if not all - ‘unfair’ practices is the 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 an employee’s benefits, provided that the discipline is merited or the loss to the employee is justified.

Author: Ivan Israelstam is the Chief Executive Officer of Labour Law Management Consulting. He is known as a leading practitioner in labour law and pragmatic labour relations management with many years experience in corporate human resources management. He has an honours degree from The University of the Witwatersrand and an IPM diploma in Personnel Management and in Training. Contact Ivan: This e-mail address is being protected from spambots. You need JavaScript enabled to view it. .