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ABR 224 Lecture 14

ABR 224 Lecture 14. Unfair Labour Practice. Definition of ULP. This definition is NB- see par 15.2 and study by heart. 186(2) defines an ULP as act or omission that arises between an employer and an employee involving:

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ABR 224 Lecture 14

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  1. ABR 224Lecture 14 Unfair Labour Practice

  2. Definition of ULP • This definition is NB- see par 15.2 and study by heart. • 186(2) defines an ULP as act or omission that arises between an employer and an employee involving: • (a)Unfair conduct , by the employer, relating to demotion, promotion, probation, training of an employee or relating to the provisions of benefits to an employee. – not to probationary employees and dismissals pertaining to them. • (b)Unfair suspension – or disciplinary action short of dismissal • (c) Failure to reinstate or re employ a former employee if there was an agreement to that • (d)Occupational detriment, other than dismissal itoWhistleblowing.

  3. Promotions • Failure to meet an objective standard. • More than just higher pay- also increased status and responsibilities • Conduct of ER must be unfair • Selection is not unnecessarily unfair- vacant positions, one only to be appointed.. • Promotion is a managerial prerogative • Most suitable person for the position • Adhere to bottom line – all must be afforded the opportunity to promote their candidate • ER must follow own procedures • EE may challenge composition or competency of selection / interview panel • Acting in a more senior position - no automatic right to be promoted

  4. Promotions( continued) • Promotion involved REWARD , higher salary or granting a higher status • Development of an employee- • EE ( Employment Equity) • Promises of promotion- watch out! • Be careful: huge difference between promotion and appointment!!! • Substantive fairness: must be ensured

  5. Demotions/Benefits and training • Move to a lower rank • Only as an alternative to dismissal--- • Unilateral action?? • See the case law in this regard. • Demotion otherwise , should be subject to consultation • See what constitutes benefits: transport allowance, provident funds, entitlement ex contractu or ex lege • You must train your employees if you have a contractual obligation to do so

  6. Unfair suspension and other disciplinary action short of dismissal • If suspension is unfair • Latest case law prescribes adherence to the audialteram partem rule before suspension • Suspension: Either as a “holding operation” or as a “ form of disciplinary action” • With or without pay? • Duration and the how thereof?

  7. REFUSAL TO REINSTATE OR E- EMPLOYEE • Must be an agreement between parties AND a failure to re-employ and reinstate for this section to kick in • Otherwise, it could be discrimination or a contravention of sect 6 of the EEA , but not an unfair labour practice. • Usually during retrenchments an agreement is entered into between consulting parties to re –employ or reinstate retrenched employees if a suitable position arises.

  8. PROBATION • Newly hired employee may be put on a REASONABLE period of probation • A probationary employee is an employee and same procedures as with incapacity of an employee must be followed. • No longer treated as a form of fixed term contract • Purpose: to give employer the opportunity to assess employee's performance • Code of good practice DISMISSAL: deals with guidelines re probation

  9. PROTECTED DISCLOSURES (READ ONLY) • NECESSARY TO ERADICATE CRIMINAL AND OTHER IRREGULAR CONDUCT IN ORGANS OF STATE AND PRIVATE BODIES. • Employees who “whistle blow” must be protected from being subjected to an “occupational detriment” • Disclosure must be made in good faith to the employer, Public Protector or AG about a crime that has been committed or is likely to be committed or where there is a failure to comply with legislation or miscarriage of justice has occurred.

  10. Job applicants • Job applicants were previously not protected. • Now they are covered by the EE Act( section 9) • The appointment to a post of an external candidate is not covered by the LRA. Where discrimination is alleged, the EEA applies. • The appointment of an external candidate to a post is not covered by the LRA. • Only an ULP re non promotion due to the making of a protected disclosure.

  11. Dispute resolution • CCMA/BC • Conciliation • 90 days from the date of the ULP or 90 days from the date that the employee became aware of the ULP • If conciliation fails, refer to CCMA or B/C for arbitration within 90 days after certificate of non resolution • Except if it deals with an occupational detriment- ( L/C) • ULP re probation- compulsory can/arb.

  12. OUTCOMES • WHAT IS THE MEANING OF ULP? • DISCUSS THE RELEVANT ULP’S WITH REFERENCE TO PRACTICAL EXAMPLES • KNOW AND UNDERSTAND THE DIFFERENT FORMS OF ULP

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