Firstly, it is necessary to know what constitutes an “unfair labour practice”.
Before the Labour Relations Act, 1995, came into effect, the term “unfair labour practice” referred to a wide variety of things, many of which are now dealt with in the sections of the Act dealing with disputes at work.
Unfair labour practices that have not been covered by these sections, are described as “residual” unfair labour practices. The Act defines a ‘residual’ unfair labour practice as any unfair act or omission that arises between an employer or an employee involving:
• Direct or indirect unfair discrimination against an employee on any arbitrary ground including race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility;
• Unfair conduct on the part of the employer relating to the promotion, demotion or training of an employee or to the provision of benefits to an employee;
• Unfair suspension of an employee or any other disciplinary action which falls short of dismissal;
• The failure or refusal of an employer to reinstate or re-employ a former employee in terms of any agreement.
In the clause prohibiting unfair discrimination, the term ‘employee’ includes an applicant for employment. In other words, anybody who has applied for a job and has been turned down may have legal recourse if he or she can prove they were not appointed because of unfair discrimination. However, the application of this clause is limited so that it cannot be used to prevent affirmative action policies designed to protect and advance people or groups of people previously disadvantaged by unfair discrimination. Also, no discrimination based on an inherent requirement of the particular job can constitute unfair discrimination.
The next question is which organisation or institution has the necessary authority to adjudicate disputes about alleged unfair labour practices. Any party may refer a dispute about an alleged unfair labour practice to a bargaining council or statutory council or to the commission for conciliation, mediation and arbitration (CCMA) if a council has no jurisdiction. The council or CCMA must try to resolve the dispute through conciliation. If the dispute remains unresolved and has to do with unfair discrimination, it may be referred to the labour court. If the dispute remains unresolved and it has to do with any alleged unfair labour practice other than unfair discrimination, it may be referred for arbitration.
You are invited to pose questions as to whether a certain alleged conduct will constitute an unfair labour practice.
I’ve been in communique with Manie regarding my exposure to unfair labour practice. Which I’m still in the process of obtaining all the required documents as requested. As I have decided to persue this issue.
I just feel as an employee that employers of high ranks just tries tactics of power plays, hoping that employees would crumble under this, which most employees do due to the fact that they rather won’t stand up and fight for what is right as they don’t want to lose their jobs in anyway. But little do they realise that in between all this unfair treatment, false allegations, which employers fail to prove, they become soft targets and easy to get rid off when the employer dislikes the employee (for petty personal reasons) and the employee still loses at the end. Employees should keep themselves conversed with their rights as a whole. I kept on asking myself, over and over, why me, why am I being treated unfairly, what have I done to deserve this and yet each day, I come to realise, I need to make a stern decision to become the victim or survivor. Employees are to scared to take on high ranks because they are our superiors. Yes, they are. But no one, no matter rank, colour or race, deserves to be treated with disrespect, unfair treatment and verbal abuse. And this is why I have decided that this time around I choose to be the survivor because I know, out of all honesty that what is busy happening with me is complete daylight unfair, discrimenated labour practice. And yes, I’m scared to death as I know I will be taking on the “big boys” but sometime in your life you have to make a stance and say, to here and no further. Especially when alleged allegations cannot be proven by the employer. You always hear the employer saying, the employer feels the trust has been broken between them and employee BUT what about, the employee feels the employer has broken the trust relationship and practices bias in broad daylight? Just because they are high ranks they feel this gives them the right to treat employees as and how they feel like as they feel they are untouchable. And yes, employees allow the employers to feel they are untouchable cause we are too scared to take them on. So we would rather continue to take their abuse, false allegations and unfair treatment. At the end of the day, respect and trust is not a right but has to be earned by both parties.