Everyone has the right to fair labour practices. This right is enshrined in Section 23 of the Constitution of the Republic of South Africa, 1996 and entrenched in section 185(b) of the Labour Relations Act 66 OF 1995 (hereinafter “LRA”), provides that every employee has the right not to be subjected to an unfair labour practice.
In terms of Section 186(2) of the LRA, an unfair labour practise means any unfair act or omission that arises between an employer and an 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 provision of benefits to an employee.
At face value, the provision ‘unfair labour practice relating to training’ suggests that employers may be obliged to train their employees. The question to be answered is whether this provision entitles an employee to relief if the employer does not provide training at all, or provides it inadequately, or provides less than comparable employers, has yet to be answered.
Without guidance from a code of good practise or the courts, it is difficult to comprehend what is intended by the provision ‘unfair conduct concerning training’ in Section 186(2) of the Labour Relations Act. There are very few decisions relating to unfair labour practices relating to training.
Having regard to the scheme of the LRA and the Labour Appeal Court judgment in Maritime Industries Trade Union of SA and Others v Transnet Ltd and Others 2002 23 ILJ 2213 (LAC), it is clear that there are many types of disputes in respect of which an employee is provided with an election between referring the matter to arbitration and resorting to industrial action. The Labour Appeal Court held that where disputes relating to training, involve an alleged unilateral amendment to an employee’s terms and conditions of employment, the employee may choose between arbitration and industrial action relating to an unfair labour practice dispute.
In the abovementioned case, the tug masters were required by law, to have a specific qualification. When a shortage of qualified tug masters was identified, the employer obtained permission to appoint employees who did not meet the criteria. After obtaining permission, ‘Marine Circular 10’ was published in which the employer’s plans for training programs were set out. After employees were appointed, the employer wanted them to do a different course that was developed. The employees claimed that they were subjected to an unfair labour practice in relation to training as they were entitled to the training initially published, at the employer’s cost.
At arbitration, the CCMA commissioner was required to determine if it was a rights dispute or a matter of mutual interest. The Labour Court held that a reasonable expectation claimed by the employees could not be “transformed” into a term and condition of service as it did not create a right, and as such there was no right to the specific training, as the training benefit was not included in the employment contract. The training benefit was included in ‘Marine Circular 10’, which omitted any condition on which the training would have been provided, when it would have been offered or the nature of such training.
The LAC held that the findings made by the commissioner that there was an agreement between the parties for the provision of training, or that the employees had a reasonable expectation, or that the expectation became a condition of service which the employer undermined was incorrect, unjustifiable and irrational. There was no basis whatsoever upon which any person could justifiably have concluded that the employer had acted unfairly and had, therefore, committed an unfair labour practice against the employees. The finding by the commissioner that the employer had acted unfairly and had therefore committed an unfair labour practice was completely unjustifiable and fell to be reviewed and set aside.
In Eskom v Marshall & Others  1 BLLR 12 (LC) at para 22, the Labour Court held that it might constitute an unfair labour practice when an employer frustrates an employee’s legitimate expectation of receiving training in terms of an established training program presented by or on behalf of the employer.
In the reported case of SACCAWU obo Shirinda v Pick ‘n Pay (Centurion)  1 BALR 64 (CCMA), an arbitration award was made in favour of the employee, with reasons as contemplated in Section 138(7)(a) of the LRA.
The employee was appointed as a shelf packer by the employer, whereafter he was promoted to the position of Foods Trainee Manager, however, the employee’s permanent appointment in this position was subject to the condition that he should pass a “receiving manager” test before a specified date. The employee wrote the “receiving manager” test four times, but he failed the test on each occasion. Subsequently, he was subjected to a disciplinary hearing for misconduct, for failure to meet the requirements set out in his contract of employment as a trainee manager in that he had not been able to pass his receiving manager test. The employee was found guilty and demoted to the position of shelf packer, with a reduced salary.
The employee ascribed his poor test results to his lack of practical exposure to the receiving environment and to the fact that the employer had not trained and prepared him properly. He also questioned the manner in which his test papers had been marked. The employee, in cross-examination, conceded that he had signed off a checklist, confirming receipt of the required material and training. He contended, however, that he had done so for the simple reason that the HR Department had told him to do so.
The employee claimed that the employer had committed an unfair labour practice by demoting him and asked that his demotion be reversed. It was the employer’s case that the employee had been aware of the fair and reasonable “rule” in terms of which he was required to pass the “receiving manager” test. It was decided to demote the employee, although he had a clean disciplinary record.
Passing the “receiving manager” test constituted a condition precedent (suspensive condition) and the employee’s failure to fulfil that condition rendered his (permanent) employment as a Foods Trainee Manager void. The employer would have been perfectly entitled to simply advise the employee accordingly.
However, the employer charged the employee with misconduct, conducted a disciplinary hearing, found him guilty and imposed the “penalty” of demotion. The commissioner was of the view that it was patently unfair to impose a “penalty” of demotion, as the employee’s failure to pass the “receiving manager” test did not (and could never) constitute misconduct.
The commissioner contended that this is not only about the demotion. Charging the employee with misconduct, subjecting him to a disciplinary hearing, finding him guilty of misconduct and imposing a penalty of demotion in these circumstances also constituted unfair disciplinary action short of dismissal, which is an unfair labour practice as contemplated in Section 186(2)(b). The commissioner furthermore contended that this dispute is also about probation, training and promotion, which is unfair labour practices also contemplated in Section 186(2)(a) of the Labour Relations Act.
The employee’s (mainly uncontested) evidence was that he had needed more exposure to the “receiving” environment, that he had not been properly trained and prepared for the “receiving manager” test and that his test papers had not been marked properly and consistently. This, inter alia, implied that the condition precedent (for his promotion) had been unfair.
The employer failed to rebut the employee’s averments and more particularly those regarding the poor training.
The commissioner found that the employee’s “demotion” constituted an unfair labour practice as contemplated in section 186(2)(a) & (b) of the Labour Relations Act. The employer’s omission or failure to sufficiently expose the employee to the “receiving” environment and to train and prepare him properly for the “receiving manager” test was also unfair. The employer’s conduct thus also constituted unfair labour practices relating to his so-called probation, training and promotion.
The employer was ordered to pay compensation of six months’ salary to the employee; to transfer the employee to (and expose him to) “receiving” for not less than one month; to prepare the employee for the “receiving manager” test by ensuring that his past mistakes are discussed with him (by at least two suitably experienced managers) and by training, instructing, guiding and counselling the employee properly; to allow the employee to once again write the “receiving manager” test; to ensure that two suitably experienced managers evaluate the employee’s test results properly and discuss it with him, and to promote the employee to the position of Foods Trainee Manager if he passes the “receiving manager” test.
The Code of Good Practice: Dismissal in Schedule 8 of the Labour Relations Act contains guidelines concerning the probation of newly hired employees as well as dismissal due to poor performance. Although applicable to dismissal disputes, it would do no harm to apply the underlying principles in a case like this by giving an employee reasonable instruction, training, evaluation, guidance or counselling. Employers must also act in a procedurally and substantively fair manner when training is provided.
Employers must provide training to employees if there is an agreement between the parties; if there is an applicable statutory provision on the development of skills of an employee and the training of an employee (for example in terms of the Skills Development Act and the Employment Equity Act). If the employee can prove a legitimate expectation of training; and if training is necessary for the advancement of the employee and there is an established practice of training in the workplace.
In conclusion, non-compliance or unfair conduct by the employer relating to training may constitute an unfair labour practice. Although the onus is on the employee to prove an unfair labour practice, the employer must provide evidence in rebuttal by submitting proof that the employer’s act or omission is fair (or the employee’s loss is justified).
Article by: Liza Engels
Dispute Resolution Official – Pretoria