Basson, Cristianson, Dekker, Garbers, Le Roux and Strydom (2009) – in Essential Labour Law: Fifth Edition 2009 – state that an unfair labour practice is defined in section 186(2) of the Labour Relations Act (LRA) as:
“any unfair act or omission that arises between an employer and an employee involving –
(a) Unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissal for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;
(b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;
(c) A failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and
(d) An occupational detriment other than dismissal in contravention of the Protected Disclosures Act 2000 (Act no 26 of 2009) on account of the employee having made a protected disclosure defined in the Act.”
The case of Independent Municipal and Allied Trade Union obo Hobe v Merafong City Local Municipality and others – (2017)26 LC 6.4.1 also reported at [2017] 10 BLLR 1040(LC) illustrates the operation of (b) above in terms of what is an unfair labour practice.
Facts of this unfair labour practice case
- A senior manager at Merafong City Local Municipality faced suspension charges. This is because funds allocated to the rehabilitation of a landfill site had been spent and no improvement had been seen.
- It was noted by the Court that the Disciplinary Regulations for Senior Managers in the Municipal Sector provide – among others – that the Municipality may suspend senior managers. This is if serious misconduct is alleged. These employees may be suspended if the senior managers could jeopardise any investigations relating to said misconduct.
- The regulations also provide that the accused is entitled to make representations on his own behalf.
- However, the Municipality had not afforded the accused employee the opportunity to make representations. Consequently, the Court set aside the senior manager’s suspension. The Municipality was ordered to allow him to resume work immediately.
As can be seen from the above case, shortcuts are dangerous to take in disciplinary matters. This is because these can very easily lead to an unfair labour practice. Follow this link to leave your details if you have any queries about disciplinary procedures and one of our expert legal eagles will be more than happy to assist.