By Ivan Israelstam, chief executive of Labour Law Management Consulting
One of the legal terms and concepts that appear to confuse employers and employees is ‘victimisation’. This is partially because the labour statutes do not deal fully with the concept of ‘workplace victimisation’.
The LRA does appear to deal with the issue of victimisation in a partial and indirect way. For example, sections 5, 185 and 186(2) of the LRA deal with certain unfair practices (short of dismissal) that could amount to victimisation. Also, chapter 2 of the EEA also alludes to practices that could constitute victimisation. These sections attempt to define and prohibit the following acts on the part of employers:
• Interfering with the rights of employees or job applicants relating to trade union membership or or activities;
• Prejudicing an employee or job applicant due to his/her legitimate disclosure of information or exercising of any right conferred by the LRA;
• Unfair promotion, demotion, suspension, discipline, training or provision of benefits
• Unfair conduct on the employer’s part relation to probation or contravention of the Protection of Disclosures Act.
• Unfair discrimination and harassment.
While labour law does, as outlined above, deal with many types of employee mistreatment that could constitute ‘victimisation’ there are a number of large gaps in the LRA and EEA. For instance, these acts do not specifically or directly prohibit an employer from shouting at assaulting or making unfair threats against an employee. The acts also do not specifically prohibit the employer from moving the employee out of his/her office into a draughty passage or from transferring the employee from location to location as a means of victimising the employee. Section 186(e) does consider a forced resignation as a dismissal but this does not help an employee who cannot afford to resign in order to escape victimisation. Employees are also not sure how to go about exercising their legal rights in this regard. For example, in the case of NEHAWU obo Mashigo & Others vs Department of Health (2004, 11 BALR 1362) the employees lodged a grievance against the employer due to unhappiness with their employment benefits. They were later dismissed and referred a dispute for unfair dismissal to their bargaining council. The arbitrator ruled that:
The bargaining council had no jurisdiction to deal with such a dispute of unfair discrimination. Despite having ruled itself to have no jurisdiction the bargaining council nevertheless issued an award to the effect that the dismissal was not unfair. This case illustrates that arbitration awards can be made which ignore victimisation allegations. However, employers should not make the mistake of believing that they are free to victimise their employees, as this is not the case.
For example, in the case of OCGAWU obo Fex & Others vs Highway Motors (2004,3 BALR 369) three employees raised a number of complaints with the employer. Thereafter, the employer reduced their working hours to 24 per month and hired new employees to perform the work on a full-time basis. The three employees referred this to the CCMA as an unfair labour practice (suspension). The CCMA held that the employer had unfairly victimised the three employees and ordered the company to pay each one the equivalent of 12 months’ remuneration.
This case illustrates that, before employers act against employees in any way, they need to get expert advice from a reputable labour specialist.