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.
Unfair labour practices – challenges and solutions
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Unfair labour practices – challenges and solutions
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
(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;
(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.
Disputes procedures – council or CCMA conciliation and then arbitration
Limited by provisions of s 186(2) LRA
Unfair labour practices “left out”
Transfer of employees
Disputes over “employment practices” EEA and PSA
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
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
“relating to the provision of benefits to an employee”
Distinction between “benefits” and “remuneration”?
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 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)
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
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