What is unfair labour practice?

The CCMA further defines unfair labour practice as such:

"An unfair labour practice means any unfair act or omission that arises between an employer and an employee, involving:

The unfair conduct of the employer relating to the promotion, demotion or training of an employee or relating to the provision of benefits to an employee

The unfair suspension of an employee or any other disciplinary action short of dismissal in respect of an employee

The failure or refusal of an employer to reinstate or re-employ a former employee in terms of any agreement

Unfair sanction or disciplinary action
An occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000, on account of an employee having made a protected disclosure as defined in that Act.

Usually an employee would refer a dispute relating to the unfairness of disciplinary measures taken, based on the merits of their innocence in the alleged wrongdoing.

Suspension as a disciplinary sanction is the only instance where suspension can be unpaid. Whilst on suspension pending a disciplinary enquiry, an employee must be paid. Non-payment must be referred to the Department of Labour as a non-payment of salary dispute. It is not regarded as an unfair labour practice dispute as this definition relates only to benefits and not salary.

A dispute regarding the unfair suspension may be referred as an unfair labour practice if the employee is on suspension for an unreasonably long period and where there is no plausible reason for the delay in finalising the enquiry. An example of unfair suspension would be where an employee and her supervisor argue and the employer suspends only the employee, even though it was the supervisor who was to blame.

When to refer an unfair labour practice dispute
Section 191 states that the employee has 90 days from the date of the act or omission which allegedly constitutes an unfair labour practice or, if it is a later date, within 90 days of the date which the employee became aware of the act occurrence.

Relevant legislation
Labour Relations Act, section 185; 186 Employment Equity Act

Unfair discrimination: is dealt with under the Employment Equity Act. Examples of this are – race, gender, ethnic or social origin, colour, sexual orientation, age and disability, etc. Discrimination can be direct or indirect. These disputes go to the Labour Court and the Employment Equity Act applies.