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Ch 12 Notes - Entrepreneurial Law
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Ch 12 Notes - Entrepreneurial Law Lecture Summaries
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CHAPTER 5 – UNFAIR LABOUR PRACTICESRemember: Sec 23 of the Constitution = right to fair labour practice
What is an unfair labour practice?
- Unfair labour practices (ULF) involve unfair treatment of employees short of dismissal
Do employers also have a right to fair labour practices?
• Courts = Yes
• Sec 9 of the Constitution - right to equality and equal protection by law
DEFINITION:
Sec 186(2) LRA:
Any unfair act or omission between an employee and employer involving:
a. Unfair conduct by the employer relating to promotion, demotion, probation, training
of an employee or provision of benefits
b. Unfair suspension of an employee or any other unfair disciplinary action short of
dismissal
c. Failure or refusal of an employer to reinstate or re-employ a former employee under
any agreement and
d. An occupational detriment (other than dismissal) in contravention of the Protected
Disclosures Act because the employee made a protected disclosure
FORMS OF UNFAIR LABOUR PRACTICES
• Promotion
• Note employer’s prerogative and the role of the courts
• Demotion
• Remember the situation of unilateral change of conditions of service
• Can amount to a demotion, which can then be an ULP
• Provision of benefits
• Doesn't include remuneration
• Includes what the employee has a right to as well as where the employer exercises a
discretion
• In order to qualify as a possible ULP, it must be a rights dispute
• Suspension and disciplinary action
• An employee may be suspended after a disciplinary hearing or pending a disciplinary
hearing
• After a hearing = can be without payment
• Suspension pending a hearing must be with payment
• Unreasonably long suspension (even with payment) can be an ULP
• Failure to re-employ / re-instate
• Whistleblowing
REMEDIES FOR UNFAIR LABOUR PRACTICES
• Remedies in case of an ULP:
• Refer a dispute to the CCMA or a bargaining council with jurisdiction
• Arbitration - may order reinstatement, re-employment or compensation
• Complicated disputes to the Labour Court
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