PEMA5122 Learning Unit 5

PEMA5122 Learning Unit 5

• Learning unit covers protection against unfair labour practices under the Labour Relations Act 66 of 1995
• Key document is page 21 of a module (MO)
• Unfair labour practice definition found in PM, Chapter 6, Section 186 (2) of the LRA
• Every employee has the right not to be unfairly dismissed or subjected to unfair labour practice

Unfair Labour Practice Definition

• "Unfair labour practice" means an unfair act or omission between an employer and an employee involving:
  • Unfair conduct by employer relating to promotion, demotion, probation (excluding probation-related dismissals), training, or employee benefits.
  • Unfair suspension or other disciplinary action short of dismissal.
  • Failure/refusal to reinstate/re-employ a former employee per agreement.
  • Occupational detriment (other than dismissal) due to protected disclosure under the Protected Disclosures Act, 2000

Differentiation Between Various Types of Conduct

• Promotion: The burden of proving entitlement is on the employee. Courts/tribunals are hesitant to interfere unless recruitment was unreasonable or in bad faith.
• Demotion: Can be fair under operational or capacity reasons. Proper procedure is key.
• Probation: Probation periods are fair if reasonable and properly determined in advance, in line with the job and evaluating suitability for continued employment. Probation isn't a tool to avoid permanent status.
• Training: Any unfair conduct is considered an unfair labour practice. The burden of proof is on the employee to show that the employer created an expectation of training.
• Benefits: Disputes often concern interest, not rights. Courts need clear definitions of benefits and whether the dispute involves rights or interests. Simply wanting a benefit doesn't necessarily equate to an unfair practice. The Apollo case clarifies that only disputes about rights pertaining to benefits are unfair labor practices.
• Reinstatement/Re-employment: Agreements regarding reinstatement exist and are protected.
• Suspension: Precautionary suspensions require pay; punitive suspensions may be unpaid, but should be considered as a corrective measure and could be progressive discipline. Must be with consideration for the facts and serious misconduct should be present.
• Protected Disclosure/Occupational Detriment: Employees who make protected disclosures may suffer occupation detriment.

Protected Disclosure (Section 86) and Occupational Detriment

• Protected disclosure: Sharing information with the relevant party regarding the employer/another employee.
• Occupational detriment: Any action taken against an employee after making a protected disclosure. Must be substantiated by a causal link between the protected disclosure and any detriment faced by the employee.

LO3 Application of Legal Principles

• Analyzing facts, acts, and cases within a textbook is important.
• The end goal in this learning outcome is to make a recommendation and identify the appropriate remedy for the stated unfair labour practice.

LO4 Recommendations for Remedies

• Deep analysis of textbook content, acts, and cases is critical for legal recommendations.
• The dispute resolution process detailed on page 89 should be considered.

This quiz focuses on the protection against unfair labour practices as outlined under the Labour Relations Act 66 of 1995. It examines definitions and examples of unfair labour practices, including unfair conduct by employers and employee rights pertaining to dismissal. Enhance your understanding of employee protection in the workplace.