It is general knowledge that any aggrieved employee may approach the CCMA to refer an alleged unfair dismissal dispute, and, in most cases, employees do just that after their dismissals. There is, however, also the option of referring an Unfair Labour Practice dispute to the CCMA.
It is a right afforded to all employees not to be subjected to unfair treatment in the workplace.
What would constitute an Unfair Labour Practice in terms of the Labour Relations Act?
- Unfair conduct by the employer relating to promotion, demotion, probation (excluding dismissals) or training of an employee or concerning the provision of benefits to an employee. This usually occurs when an employer deviates from his own internal promotion or training policy. Or where an employee provides benefits to some and not others with no justifiable reason for doing so.
- The unfair suspension of an employee, for example, when facing pending disciplinary action or any warning or disciplinary sanction issued unfairly or without merits, will also be considered an Unfair Labour Practice. This being any action besides that of dismissal, of course.
- Where there is an agreement present to re-instate or re-employ an employee subject to certain conditions, but this agreement is not honoured. These types of agreements are usually seen when retrenchments are finalised, and an agreement exists that should an appropriate position become vacant, a former retrenched employee will be re-employed into that position. If this agreement is not honoured, it will constitute an Unfair Labour Practice and may be referred as such a dispute to the CCMA.
- An occupational detriment other than that of dismissal in contravention of the Protected Disclosures Act of 2000 where an employee has made a protected disclosure as defined in the Act. Should an employee make a disclosure regarding, for example, criminal action that her employer or company is involved in, and the employee is now disciplined for this, it would amount to an Unfair Labour Practice.
- In addition, it is also an Unfair Labour Practice for an employer to unilaterally alter an employee’s wages, hours of work, or other conditions in connection with the implementation of the national minimum wage, this according to Chapter 2 paragraph 4 (8) of the National Minimum Wage Act.
It is thus clear from the above that the CCMA has jurisdiction to intervene at the workplace should the applicant/employee refer a dispute concerning any of the abovementioned scenarios. Should such a dispute be referred, it will be categorised as an Unfair Labour Practice and will place a commissioner in a position to adjudicate on the matter.
Article by: Marco Horak
Dispute Resolution Official – Upington