While the majority of the cases referred to the CCMA concern allegations of unfair dismissal, there are numerous other disputes that can be referred to the CCMA, including that of an unfair labour practice.
When it comes to unfair labour practices, it is a common misconception by many employees that any alleged treatment which they feel aggrieved is a possible unfair labour practice. However, to succeed in an action based on an alleged unfair labour practice, employees must prove that the conduct or practice complained of falls within the terms of one of the practices expressly listed in the definition as contained in Section 186(2) of the Labour Relations Act, which reads:
“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;
- 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.
In practice, the most common allegations of unfair labour practices that the CCMA is faced with are those pertaining to promotion, demotion, benefits, suspension and disciplinary action short of dismissal.
Another misconception often made by applicants, is referring an alleged unfair labour practice to the CCMA after the employment relationship has been terminated. The definition as provided by the Labour Relations Act specially refers to, “an act or omission that arises between an employer and employee”, if an applicant is no longer an employee at the time of the referral, the CCMA lacks jurisdiction. If the employment relationship is terminated prior the proceedings being set down to take place at the CCMA, however, subsequent to the referral, the CCMA has the necessary jurisdiction to entertain the dispute.
Unlike in the case of unfair dismissal disputes, where the applicant has 30 days to refer a dispute, in the case of an alleged unfair labour practice 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, 90 days from the date on which the employee became aware of the act or occurrence to refer the dispute. It is however noteworthy that failing to refer disputes in these time frames, does not mean that the applicant can no longer refer a dispute, the rules of the CCMA allow an applicant to apply for condonation, it is then up to the commissioner to make a ruling as to whether to allow the dispute to proceed or not.
A distinction can also be drawn as to who is obligated to discharge the onus of proof at the CCMA, while in the case of an alleged unfair dismissal, where dismissal is not in dispute, the onus of proof lies with the respondent (employer) to prove that the dismissal was procedurally and substantively fair, in the case of an alleged unfair labour practice dispute, the employee bears the onus to show that the employers conduct is/was unfair.
In a case where the commissioner finds in favour of the applicant in an unfair dismissal dispute, the remedies available to a commissioner to award are limited to re-instatement, re-employment and compensation, which may not be more than the equivalent of 12 months remuneration, calculated at the employees rate of remuneration on the date of the dismissal, the case of an automatically unfair dismissal, an applicant could get up to 24 months as compensation. In the case where the commissioner finds that there was indeed an unfair labour practice, the commissioner may determine any unfair labour practice dispute on terms that the commissioner deems reasonable, limited to 12 months.
Contact Invictus for expert guidance and support with CCMA referrals on unfair dismissal or unfair labour practice disputes. Contact our office at 086 173 7263 or email us at admin@invictusgroup.co.za.
