1. Unfair Labour Practice

2.  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.

3.  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

4.  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

5.  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

6.  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?

7.  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.

8.  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

9.  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.

10.  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.

11.  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.

12.  WHAT IS THE MEANING OF ULP?  DISCUSS THE RELEVANT ULP’S WITH REFERENCE TO PRACTICAL EXAMPLES  KNOW AND UNDERSTAND THE DIFFERENT FORMS OF ULP