Unfair labour practices challenges and solutions

1
Unfair labour practices challenges and
solutions

• By
• Sean Molony

2
Overview

• The provisions of the LRA
• Ulps left out
• Each type of unfair labour practice in s
  186(2)(a) discussed
• Discussion re promotion as unfair labour practice
  
• Conclusions

3
The LRA

• (2) 'Unfair labour practice' means 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 dismissals for a reason relating
  to probation) or training of an employee or
  relating to the provision of benefits to an
  employee

4
The LRA

• (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
  re-instate 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 26 of 2000), on
  account of the employee having made a protected
  disclosure defined in that Act.

5
ULPs

• Disputes procedures council or CCMA
  conciliation and then arbitration
• Limited by provisions of s 186(2) LRA
• Unfair labour practices left out
• Grading disputes
• Short time
• Transfer of employees
• Disputes over employment practices EEA and PSA

6
Demotion

• Reduction in status, authority and/or
  remuneration and benefits
• Used as a possible sanction
• Can also be unfair labour practice unfair
  disciplinary action short of dismissal in respect
  of an employee
• Is change to terms and conditions of employment
  must be agreed to

7
Probation

• excluding disputes about dismissals for a reason
  relating to probation
• Unfair too long, repeated, continuos

8
Training of an employee

• Unfair e.g. not placed on training programme
  when others are

9
Benefits

• relating to the provision of benefits to an
  employee
• Distinction between benefits and
  remuneration?

10
Promotion

• Meaning distinction between appointment and
  promotion
• Different dispute resolution path
• Public Service Act Section 11 (2)
• In the making of any appointment in terms of
  section 9 in the public service-
• (a) all persons who applied and qualify for the
  appointment concerned shall be considered and
• (b) the evaluation of persons shall be based on
  training, skills, competence, knowledge and the
  need to redress, in accordance with the
  Employment Equity Act, 1998 (Act 55 of 1998), the
  imbalances of the past to achieve a public
  service broadly representative of the South
  African people, including representation
  according to race, gender and disability.

11
Legislation relating to promotions

• Section 186(2)(a) of the Labour Relations Act No
  66 of 1995 the Act
• An unfair labour practice
• Section 20 of the Employment Equity Act
• Unfair labour practice and /or discrimination
• Promotion of Administrative Justice Act No 3 of
  2000
• Review of decision

12
Appointment or promotion? cont

• Question What does promotion mean?
• Promotion is the process of selection of the most
  suitably qualified employee from a pool of
  candidates and the appointment of that employee
  to a position of greater status, responsibility
  and authority than previously enjoyed by the
  employee in the organisation.
• Definition seeks to differentiate between
• An appointment i.e. a task, duty or
  responsibility allocated
• Grading or re-grading of posts, often in a
  restructuring context
• Secondment, moving to another similar task for a
  period of time

13
Promotion- The unfair labour practice

• The onus
• The arbitration of a promotion dispute
• De novo as with dismissal disputes?
• Review of selection panels decision?
• Communication Workers Union on behalf of Starck
  and Telkom SA Ltd (2005) 26 ILJ 353 (CCMA)
• The parties
• Employment relationship employer and employee
• Joinder of other candidates

14
Promotion the elements of an unfair labour
practice

• The elements of the unfair labour practice
  claim
• The applicant is an employee of the employer
  employment relationship
• The employer committed an act or omission
  relating to the promotion of the employee
  promotion
• The employers act or omission was procedurally
  and /or substantively unfair unfairness
• In advert, inherent requirements, information
  gathering, selection criteria, selection panel,
  short listing, pre-employment testing, interview,
  the decision
• There was a causal connection between the
  employers unfair conduct and the failure to
  promote causation
• The reasonable remedy by which the employers
  unfair conduct may be remedied the remedy

15
Conclusion

• Suggestion that promotion and other Unfair labour
  practices be removed from the LRA
• Difficulties lack of inclusion of many employer
  practices as unfair labour practices
• Solution- include dispute resolution processes in
  grievance procedure fact finding, mediation,
  arbitration, facilitation etc