Have you ever been unfairly dismissed or suspended at work? Were you aware of any unfair labour practices that could negatively affect your employment status and how to tackle them?
Knowing and observing your labour rights does not only help you to protect yourself in the workplace, but rather make you an accountable and reliable employee who takes caution to his/her responsibilities and duties.
Today, UASA is going to briefly discuss a few terms under the labour Relations Acts (LRA) that most employees usually find themselves faced with from time to time:
The labour Relations Acts defines unfair labour practice as, “any unfair act or omission that arises between an employer and an employee,” including:
- Unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;
- 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;
- Failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and
- An occupational detriment other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act number 26 of 2000) on account of the employee having made a protected disclosure defined in that Act.
Section 186(2) (b) of the LRA protects employees against unfair suspensions such as:
Precautionary Suspension – this is when disciplinary charges are being investigated against an employee and the employer wants to suspend the employee pending the outcome of the disciplinary enquiry.
The reason for this is usually to remove the employee from the workplace so that he or she does not interfere with the investigation or intimidate witnesses. In this case, a suspension is imposed as a disciplinary measure short of dismissal after the disciplinary hearing has been held.
Disciplinary action short of dismissal
Section 186(2) (b) of the LRA also protects employees against unfair disciplinary measures short of dismissal. The act states that all disciplinary actions including warnings, suspensions with or without pay, demotions and transfers, if used in the context of disciplinary action must be fair.
The employer must be able to show that the warning, demotion or other disciplinary action was fair and that it was appropriate under the circumstances.
Unfair conduct on probations
According to the LRA there are two types of unfair labour practices under probation conditions which includes: unfair employer conduct relating to probation (excluding dismissal) and unfair conduct relating to protected disclosures.
In this case unfair labour practices by an employer include failure to inform the employee properly about required performance standards and in a procedural sense, the failure by an employer to afford the employee reasonable guidance, evaluation, training, counselling and instruction.
This is because the purpose of probation is to put the employer in a position to take an informed decision about the capacity and suitability of an employee to do a certain job.