The Unfair Labour Practice – Which pieces fit into this “puzzle”?

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The proper understanding of one particular labour relations concept often requires some level of understanding of other associated industrial relations concepts intertwined with it. This is also true in respect of the concept: “unfair labour practice” (ULP).

Let us firstly create a common frame of reference regarding the concept “ULP”:

Distinction between “dispute of right” and “dispute of interest”

With the drafting of the legislation pertaining to the ULP, the legislator seemingly wanted to clearly distinguish between the concept “dispute of right” and that of “dispute of interest”.

Simply put, a dispute of right has to do with a clear and established right which the employee has by virtue of his/her employment contract (ex contractu). By way of example, this may involve the contractual entitlement to leave, over and above, and thus exceeding the minima specified in Chapter Three of the Basic Conditions of Employment Act (BCEA). A right within this context can also include a right the employee has by virtue of a collective agreement concluded with a recognised trade union.

The leave entitlement specified in Chapter Three of the BCEA would, for example and amongst others, constitute a right the employee has by virtue of statute (ex lege), which could be the subject of a labour dispute.

On the other hand, a dispute of interest has to do with a dispute related to the employee’s endeavours to create or establish a right which he or she does not have, currently, but wishes to acquire through collective bargaining or negotiation. For example: It is in the interest of the employee to be paid a higher wage, but unless and until formal agreement is reached in this regard, the employee has a mere interest (and not a right) to the higher wage sought.

The significance of this distinction lies therein that a dispute of right, as described above, is a matter for adjudication, which is the legal process followed at arbitration or in a court of law (relevant to this case: the labour courts). The legal process of adjudication is essentially aimed at protecting and enforcing existing rights.

A dispute of interest, on the other hand, is not a matter for adjudication, but for collective bargaining or negotiation, where the parties engage in “power play” with a view of exploring and determining the prospect of creating (on the part of the employee) or curtailing (on the part of the employer) a potential future right.

As far as the ULP is concerned, its domain is that of disputes of right and thus matters that can be adjudicated. Disputes of interest, as defined above, do not fall within the scope of the ULP.

Distinction between “benefit” and “remuneration”

This distinction is at the core of one specific aspect of what is defined in the Labour Relations Act (LRA) as an ULP. This manifestation of an ULP is described as an unfair act on the part of the employer regarding the provision of benefits to the employee (Section 186(2)(a) of the LRA).

Initially, a strict and narrow approach was followed in order to legally define a “benefit”, namely limiting it to an existing right the employee has in consequence of contract (including a collective agreement), thus ex contractu, as well as an existing right the employee has in consequence of a statutory provision, thus ex lege.

As the law developed through case law and with specific reference to the Labour Court case: IMATU obo Verster v Umhlathuze Municipality & others (2011) LAC and the Labour Appeal Court case: Apollo Tyres South Africa (Pty) Ltd v CCMA & others (2013) LAC, the definition of “benefit” was however broadened as follows to include:

Existing advantages or privileges to which the employee is entitled ex contractu, ex lege , as well as rights created judicially or granted in terms of policy or practices, subject to the employer’s discretion”.

This much broader definition of benefits resolved many disagreements and controversy, such as confirming that a change in retirement age, instituted by the employer, can be considered as a “benefit” in terms of Section 186(2)(a) of the LRA. It further clarified that, for instance, a principle of natural justice, creating the right to be heard prior to a decision being taken, which potentially could affect one’s rights or interests, commonly known as the “audi alteram partem”-principle, could be included in the concept of a “benefit” by virtue of it being a judicially created right.

It is important to stress that what I am conveying in this blog is an attempt from my side to explain the concept of the ULP as simplistically as possible. In doing so, my understanding of the topic concerned is informed by what my scrutiny of relevant case law has revealed to me. It has to be borne in mind that clearly defining the term “benefit” (arguably the most contentious aspect of the definition of the ULP), was preceded by drawn-out and complex legal argumentation by several legal authorities over time, captured in several court judgements. I am giving you just the essence, which I distilled from scrutinising the relevant case law.

Against the above conceptualisation of the ambit of the ULP, let us now examine which labour practices constitute ULP’s, as defined in Section 186(2) of the LRA:

Within this context, an ULP involves:

  • Unfair conduct by the employer relating to
    • Promotion
    • Demotion
    • Probation (except disputes about dismissals related to probation)
    • Training of an employee
    • The provision of benefits to an employee.
  • Unfair suspension of an employee or any other unfair disciplinary action short of dismissal.
  • Failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement.
  • An occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act (PDA), in consequence of the employee having made a protected disclosure defined in the PDA.

The above categorisation demarcates the parameters of ULP disputes and consequently, it limits the scope of the ULP legislation for purposes of dispute resolution.

Any alleged ULP dispute can only be referred to the statutory dispute resolution mechanism (CCMA, Bargaining Councils & labour courts) for resolution while the employee is still employed.

Obviously, labour relations concepts such as demotion, probation, suspension, and occupational detriment, touched on in this blog, are themes deserving their own blog article or post in due course and, for obvious reasons, could unfortunately not be elaborated upon in this blog.

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