Unfair Labour Practice
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 ito Whistleblowing.
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
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
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
If suspension is unfair Latest case law prescribes adherence to the audi alteram 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?
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.
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
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.
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.
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.
WHAT IS THE MEANING OF ULP? DISCUSS THE RELEVANT ULP’S WITH REFERENCE TO PRACTICAL EXAMPLES KNOW AND UNDERSTAND THE DIFFERENT FORMS OF ULP