PEMA5122 LU 5 PDF

PEMA5122 Learning Unit 5 – Protection against Unfair Labour Practices under the Labour Relations Act 66 of 1995 (READ PAGE 21 OF MO) Theme 1 – Definition of an ‘unfair labour practice’...

PEMA5122 Learning Unit 5 – Protection against Unfair Labour Practices under the Labour Relations Act 66 of 1995 (READ PAGE 21 OF MO) Theme 1 – Definition of an ‘unfair labour practice’ PM: Chapter 6 Section 186 (2) of the LRA FOR CONTEXT Gb  LO1: Discuss the meaning of the concept “unfair labour practice” as contemplated in section 186(2) of the LRA  Section 186 of the Labour Relations Act  (2) “Unfair labour practice” means an unfair act or omission that arises between an employer and an employee involving  The word practice would lead us to believe that unfair labour practice is something that would be done, but we are told that even the failure/refusal to do something can amount to an unfair labour practice  There needs to be an employment relationship, as highlighted on page 21 of the MO – dismissal, conduct against ex employees cannot be unfair labour practice  (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;  Identified by the employee based on the context  (b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;  Other unfair disciplinary action short of dismissal – repayment for damages to property  (c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and  Even if the employer did not intentional/directly refuse, the failure/delay to perform as expected qualifies their actions as unfair  Reinstate: employee is put in the position they would have been in if there were not dismissed, back pay of leave etc  Re-employ: employee starts “from scratch” as new employee  (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  Any negative effect following the employee’s protected disclosure  LO2: Differentiate between the various types of conduct that constitute an “unfair labour practice” part 1.  Unfair conduct of the employer relating to promotion p79  Promotion occurs when an employee moves to a position that provides the employee with better status, more responsibility and authority which usually results in an increase in the pay or employee benefits  By law, no employee can be said to be entitled to a promotion, such right can only be created by an employee’s proven reasonable expectation, through past practices – burden of proof is on the employee  It is up to the managers in a company to decide who gets promoted, ordinarily courts/tribunals may be hesitant to interfere  Such an example can be seen in Dlamini and Toyota SA manufacturing  Court held that it would not play the role of a recruitment agency for an employee who believed he was the most appropriate candidate  Court confirm it will usually get involved if recruitment was grossly unreasonable or in bad faith  If an employer is disappointed in the results of a promotion that does nor constitute an ULP  LO2: Differentiate between the various types of conduct that constitute an “unfair labour practice” part 2.  The following factors are considered to determine whether an employer acted fairly/unfairly when they failed/refused to promote an employee:  The employer acted in bad faith  The employer is inconsistent in how it has exercised its discretion in relation to promotions  The reason for failure/refusal to promote the employee cannot be substantiated  The decision for promotion was taken on an incorrect principle  The incorrect decision was made in a biased manner  Sibanyoni and Pick ‘n Pay  Employee had reasonable expectation of promotion due to being promised a promotion  The court held that expectation was not reasonable as:  the person who promised a promotion was not authorised to do so  The employee did not apply for a promotion  The employee did not meet one of the minimum requirements for promotion – having a degree  LO2: Differentiate between the various types of conduct that constitute an “unfair labour practice”.  Unfair conduct of the employer relating to demotion p80  A demotion is represented by many outcomes – a lower ranking, lower wages/salaries, loss of benefits or loss of status  SAPS v Salukazana  An employee went from Provincial Head: Supply Chain Management in SAPS to Section Head: National Inspectorate  His position resulted in him reporting to a person of lower ranking than his previous position – lowering his status  The court held that this constituted demotion which is an unfair labour practice  Depending on the facts of the matter, demotion can sometimes be fair – operational reasons /incapacity  The proper procedure has to be followed in these instances  The employer has to consider best option aside from dismissing the employee – demotion can be an action taken instead of dismissal  Mangcu v City of JHB  Employee appointed as director was found guilty of misconduct (multiple charges)  The employee was given a demotion to deputy director with a lesser salary instead of being dismissed  LC found demotion and salary decrease was due to the employer following a substantively and procedurally fair process  LO2: Differentiate between the various types of conduct that constitute an “unfair labour practice” part 1.  Unfair conduct of the employer relating to probation p81  Probation – a period where the employer assesses the employee’s performance to make an evaluation of such performance before confirming an appointment  Probation should not be used incorrectly – to deprive employees of permanent status or rotate employees after each probation period  The Code: Dismissals provides guidelines for the fair treatment of employees on probation  The period of probation:  The Code: Dismissals sets requires for a fair period of probation  The period should be determined in advance  The period should be reasonable and determined in line with the nature of the job  The period should be reasonable and determined in accordance with a period appropriate to determine an employee’s suitability for continued employment  LO2: Differentiate between the various types of conduct that constitute an “unfair labour practice” part 2.  Mediterranean Woolen Mills v SACTWU  Employers who did not wish to confirm employees on probation as permanent employees had to provide evidence that the procedure prior to dismissal included:  Employee had an opportunity to improve  Employee was made aware that their performance was unacceptable  Employee received counselling if they were unable to perform work required; and  Employee treated sympathetically and with patience  If employee still cannot perform satisfactorily following the above factors, then dismissal is fair  LO2: Differentiate between the various types of conduct that constitute an “unfair labour practice”.  Unfair conduct of the employer relating to training p82  Any unfair conduct towards employees in the provision of training will amount to an unfair labour practice  The burden of proof is on the employee, such employee would have to prove that the employer created an expectation that the employee would be provided with training  Training is considered important if:  it is necessary to advance an employee; and  an employer ordinarily trains employees  LO2: Differentiate between the various types of conduct that constitute an “unfair labour practice”.  Unfair conduct of the employer relating to provision of benefits p82  It is difficult to deal with unfair labour practices related to the provision of benefits because:  the LRA does not define benefits,  courts and arbitrators provide a narrow definition of benefits, and  it is unclear when disputes related to benefits results in a dispute about rights or interests  A right relates to something which persons are entitled /have a right to in terms of law  An interest relates to something a person wants/requests but is not entitled to in law  Only disputes about rights relate to unfair labour practices  Since a benefit is seen as part of remuneration, disputes related to these matters are ordinarily seen as interest disputes which should be resolved by industrial actions/strikes  The Apollo case has made it so that the employees do not need to prove that they have a right to a benefit only that the employer acted unfairly, this would result in the denial of a benefit being an unfair labour practice  As a defense, the employer would have to provide a valid reason for the employee being excluded from the benefit  LO2: Differentiate between the various types of conduct that constitute an “unfair labour practice”.  Schoeman v Samsung Electronics  Court had no jurisdiction over the matter, employee could not strike alone = no remedy  Apollo Tyres SA v CCMA  The court extended the definition of the term “benefit”  United Association of SA obo Members and De Keur  Benefit resulted from employer promise + long standing practice, therefore removal of benefit = ULP  The aforesaid does not result in benefits being permanent, the employer may remove said benefit if there is a valid reason and there was consultation/negotiation with employees  LO2: Differentiate between the various types of conduct that constitute an “unfair labour practice”.  Unfair conduct of the employer relating to a refusal to reinstate/re-employ in terms of agreement p86  This creates protection for former employees after the employment relationship has ended, if there was an agreement in place  See domestic worker example on page 86 – para 9  Agreement to re-employ under improved financial position  LO2: Differentiate between the various types of conduct that constitute an “unfair labour practice”.  Unfair conduct of the employer relating to suspension or other disciplinary action short of dismissal p84  Workers on suspension are regarded employees which are bound by their agreement and conditions of suspension, such conditions may include:  The employee being available to the employer  Return of work equipment  No interfering with the investigation  No contact with potential witnesses  There are ordinarily two types of suspension:  1. Precautionary or preventative suspension  Prior to disciplinary hearing to allow employer investigation of alleged misconduct to decide if disciplinary should be implemented  Suspension is with pay unless agreed without pay or law/collective agreement allows unpaid suspension  2. Punitive suspension  Alternative to disciplinary outcome of dismissal as a corrective measure, could be progressive discipline  Suspension without pay  LO2: Differentiate between the various types of conduct that constitute an “unfair labour practice”.  Sappi Forests v CCMA  Confirmed that once agreed, suspension must be with pay  Precautionary suspension must be implemented with consideration of the facts at hand  An employee may only be suspended if:  Prima facie reason to believe alleged serious misconduct occurred; and  Objectively justifiable reason to have employee excluded from the workplace (link alleged misconduct to harm that may occur if employee is in the workplace  The seriousness and effects of suspension must be considered, see example 2 page 85 + text box 3  Other disciplinary short of dismissal could be seen as an ULP example on bottom of p85  DEFINITIONS  What is a protected disclosure?  What is an occupational detriment?  LO2: Differentiate between the various types of conduct that constitute an “unfair labour practice” part 1.  Unfair conduct of the employer relating to employees suffering occupational detriment on account of protected disclosure p86  (USE PM DEFINITIONS, NOT THE BELOW – YOU WILL NOT RECIVE MARKS FOR REWRITING ANY OF MY NOTES IN THE EXAMS)  Protected disclosure:  Protected disclosure  Is the sharing of information to relevant person/body (see specific role players) who may directly remedy/regulate the employer or the other employee that the information is about.  The employee’s disclosure must be in good faith and reasonably believed to be substantially true – for example: no rumors  It is an offence for the employee to intentionally disclose false information for malicious reasons, or information that the employee could be reasonably expected to know is false  General protected disclosure  Covers disclosures made on a wider spectrum which includes the media, for example  LO2: Differentiate between the various types of conduct that constitute an “unfair labour practice” part 1.  Occupational detriment:  Once the employee has made a protected disclose, they will be said to be suffering an occupational detriment if they:  Face disciplinary  Dismissal (automatically unfair), suspension, demotion, harassment or intimidation  Forced transfer  Refusing to transfer/promote employee  Altered employment term/retirement, to the disadvantage of the employee  No reference or a bad reference  Denial of appointment  Civil claims for:  Breach of confidentiality resulting from protected disclosure about criminal offence,  Exposing contravention of the law: past, present, or likely to occur in future  Threatening the employee with any of the above  Any adverse effect in the workforce: employment, prospective, job security, retaining/acquiring contracts of work/service  Unfair action short of dismissal – City of Tshwane Metropolitan Municipality v Engineering Council of SA (court prohibited sanction being imposed on employee brought to hearing for a protected disclosure)  LO2: Differentiate between the various types of conduct that constitute an “unfair labour practice” part 2.  What is the purpose of the PDA? CLASS DISCUSSION  Following your response, you will realise that this Act was put in place to ensure that employees are empowered to hold employers and other employees accountable for the acts you have mentioned  That having been said, it now becomes clear why we are told that it is an ULP for employer to subject an employee to occupational detriment following a protected disclosure  Read textbox on p88 for context  SO, in order to prove that disclosures made by an employee are protected, such employee would have to prove:  The employee made a protected disclosure –in line with your above definition  The employer retaliated against the employee, such retaliation should amount to an occupational detriment  There should be a causal link between disclosure and retaliation - the detriment should be:  LRA: on account of protected disclosure  PDA: partly on account of protected disclosure  LO2: Differentiate between the various types of conduct that constitute an “unfair labour practice” part 3.  Protected disclosures and non-standard employment  The scope of PDA extended from the disclosures made by employees with the ordinary definition of “employee” to independent contractors and non-standard employees such as TES employees, consultants and agents  In the case of a TES working relationship, the TES agency and their client are jointly and severally liable for occupational detriments in the instance where the client had knowledge or authorised the detriment  LO3: Apply the legal principles relating to unfair labour practices to a set of facts.  In your study time you must make an in-depth analysis of this content in preparation for the exam.  The end goal is to equip yourself to:  make a recommendation based on a given set of facts; and  Provide an appropriate remedy for the unfair labour practice presented in the stated facts.  PEMA5122 Learning Unit 5 – Protection against Unfair Labour Practices under the Labour Relations Act 66 of 1995 Theme 2 – Remedies for ‘Unfair Labour Practices’ PM: Chapter 6 Section 186 (2) of the LRA LO4: Recommend appropriate remedies for unfair labour practices in a given set of facts.  Make sure you conduct a deep analysis of the content, acts, cases mentioned in your textbook in order to make legal recommendations  Further, read through the dispute resolution process on page 89