Unfair labour practices – challenges and solutions

Unfair labour practices – challenges and solutions By Sean Molony

Overview • The provisions of the LRA • Ulps ‘left out’ • Each type of unfair labour practice in s 186(2)(a) discussed • Discussion re promotion as unfair labour practice • Conclusions

The LRA • (2) 'Unfair labour practice' means 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 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 LRA • (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 re-instate 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.

ULPs • Disputes procedures – council or CCMA conciliation and then arbitration • Limited by provisions of s 186(2) LRA • Unfair labour practices “left out” • Grading disputes • Short time • Transfer of employees • Disputes over “employment practices” EEA and PSA

Demotion • Reduction in status, authority and/or remuneration and benefits • Used as a possible sanction • Can also be unfair labour practice “unfair disciplinary action short of dismissal in respect of an employee” • Is change to terms and conditions of employment – must be agreed to

Probation • excluding disputes about dismissals for a reason relating to probation • Unfair = too long, repeated, continuos

Training of an employee • Unfair = e.g. not placed on training programme when others are

Benefits • “relating to the provision of benefits to an employee” • Distinction between “benefits” and “remuneration”?

Promotion • Meaning – distinction between “appointment” and “promotion” • Different dispute resolution path • Public Service Act Section 11 (2) • In the making of any appointment in terms of section 9 in the public service- • (a) all persons who applied and qualify for the appointment concerned shall be considered; and • (b) the evaluation of persons shall be based on training, skills, competence, knowledge and the need to redress, in accordance with the Employment Equity Act, 1998 (Act 55 of 1998), the imbalances of the past to achieve a public service broadly representative of the South African people, including representation according to race, gender and disability.

Legislation relating to promotions • Section 186(2)(a) of the Labour Relations Act No 66 of 1995 [the ‘Act’] • An unfair labour practice • Section 20 of the Employment Equity Act • Unfair labour practice and /or discrimination • Promotion of Administrative Justice Act No 3 of 2000 • Review of decision

Appointment or promotion? [cont] • Question: What does ‘promotion’ mean? • Promotion is the process of selection of the most suitably qualified employee from a pool of candidates and the appointment of that employee to a position of greater status, responsibility and authority than previously enjoyed by the employee in the organisation. • Definition seeks to differentiate between • An appointment i.e. a task, duty or responsibility allocated • Grading or re-grading of posts, often in a restructuring context • Secondment, moving to another similar task for a period of time

Promotion- The unfair labour practice • The onus • The arbitration of a promotion dispute • De novo as with dismissal disputes? • Review of selection panel’s decision? • Communication Workers Union on behalf of Starck and Telkom SA Ltd (2005) 26 ILJ 353 (CCMA) • The parties • Employment relationship – employer and employee • Joinder of other candidates

Promotion – the elements of an unfair labour practice • The ‘elements’ of the unfair labour practice claim • The applicant is an employee of the employer: employment relationship • The employer committed an act or omission relating to the promotion of the employee: promotion • The employer’s act or omission was procedurally and /or substantively unfair: unfairness • In advert, inherent requirements, information gathering, selection criteria, selection panel, short listing, pre-employment testing, interview, the decision • There was a causal connection between the employer’s unfair conduct and the failure to promote: causation • The reasonable remedy by which the employer’s unfair conduct may be remedied: the remedy

Conclusion • Suggestion that promotion and other Unfair labour practices be removed from the LRA • Difficulties – lack of inclusion of many employer practices as ‘unfair labour practices • Solution- include dispute resolution processes in grievance procedure – fact finding, mediation, arbitration, facilitation etc

Unfair labour practices – challenges and solutions