By Ivan Israelstam, chief executive of Labour Law Management Consulting
Section 186(2) of the LRA defines “Unfair labour Practice” as “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 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.”
The word “unfair” is mentioned several times in the above definition. For example, under part (b) of the definition the section mentions “…any other unfair disciplinary action…” However, without an explanation of what ‘unfair’ means the entire definition of an unfair labour practice is meaningless. For example, there are many fair actions relating to discipline and many unfair ones. How do we distinguish between these? In addition to the definition of ‘unfair’ that I proposed above it is useful to examine the way in which arbitrators attempting to resolve labour disputes decide whether an act of an employer is fair or unfair.
In the case of Bosman vs SA Police Services (2003 5 BALR 523) Bosman and a black female had been shortlisted as candidates for promotion. The selection committee decided that the black female should be promoted for reasons of population group representivity. However, the committee was unable to prove at arbitration:
- That the appointment of the black female would have promoted representivity and
- That the black female was the best suited candidate
In the light of this the arbitrator found that the failure to promote Bosman was unfair and ordered the employer to promote her. The ‘unfairness’ decision here was made on the basis that:
- Bosman had been proven to be the best candidate and therefore had the right to be promoted and
- The decision to promote the black female was inappropriate because she was not the best candidate and there was no proof that her promotion would have served the purpose of affirmative action.
At the root of many “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 or job candidate 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 the employee’s benefits provided that the discipline is merited or the loss to the employee is justified.
As always, the challenge for the employer is to judge when its actions are merited and justified. Due to the complexity of the law such judgement cannot be done via guesswork. Every employer must therefore obtain comprehensive and in-depth expertise in labour law via the use of a reputable labour law expert and via training of all levels of management in the application of labour law.