Unfair labour practices are defined in section 186 (2) of the Labour Relations (Act 66 of 1995) (hereinafter referred to as the LRA). The Act defines an unfair labour practice as any unfair act or omission that arises between an employer and employee involving:
- 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 benefits to an employee;
- The unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee;
- A 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 (Act 26 of 2000), on account of the employee having made a protected disclosure defined in that Act.
To constitute an unfair labour practice, the act or omission as alleged must have been between an employer and the employee. An employee cannot commit unfair labour practices against their employers.
Employers may be faced with a situation where it may become necessary to transfer an employee from one employment position to another within the company. This may be due to operational/contractual requirements or misconduct by the employee.
Complaints regarding transfer of employees are not specifically dealt with by the LRA and as such these disputes cannot be arbitrated at the CCMA unless the transfer has an impact on the provision of benefits enjoyed by the employee or is imposed as a disciplinary sanction. The issue of transfer can also be arbitrated at the CCMA if the employee contends that the transfer resulted in a constructive dismissal.
When considering the transfer of an employee the discretion lies with the employer or management provided that the employee’s contract does not prohibit such a transfer. Consideration must be given to the degree of inconvenience the transfer will have on the employee and in Gray Security Services (Western Cape) (Pty) Ltd v Cloete NO & Another (2000) 21 ILJ 940 (LC), the labour court held that the employer has an obligation to consult employee’s before transferring them. Should the employee have good reason for refusing a transfer an employer may consider retrenchment as provided for by section 189 of the LRA, provided the transfer is based on operational requirements.
In the recent reported case of Loate / Southern African Youth Movement (2019) 11 BALR 1201 (CCMA), an employee referred an unfair labour practice matter to the CCMA. It was the Applicant’s (employee’s) argument that his transfer constituted an unfair labour practise as it amounted to an unfair demotion.
The Applicant was transferred from the post of Provincial Coordinator to that of Special Programs Coordinator and the Respondent (employer) argued that the transfer was necessary due to poor work performance by the Applicant and the needs of their client.
In his award the Commissioner noted that the definition of a demotion included the reduction of an employee’s dignity, importance, responsibility, power or status. After the transfer, evidence was led to show the Applicant had significantly reduced responsibility and that he was not performing any of his duties relating to special projects. The commissioner held that the issue of the Applicant’s performance could not be noted as he had never been charged with an offence regarding poor work performance.
The Commissioner concluded that the Applicant had been unfairly demoted and awarded him compensation equal to three months’ remuneration in addition to an allowance to rectify short payments of his salary during the last three months of his employment.
In light of the above, employers should take care to ensure the transfer of an employee does not constitute an unfair labour practice. Specific attention should be given to the effect the transfer will have on the employee’s provision of benefits, remuneration, responsibilities and status. Failure to discipline an employee for misconduct and the subsequent transfer could result in an adverse award being issued by the CCMA.
We would advise that for further queries regarding CCMA matters, you contact your nearest Consolidated Employers Organisation offices for further advice and/or assistance.
Article by: Gordon Flanagan
Dispute Resolution Official – East London