Few workplace disputes are as stressful as being treated unfairly by your employer.
Whether you’ve been overlooked for promotion, unfairly suspended, pressured to resign, or dismissed without a proper hearing, South African labour law provides employees with important protections.
Two of the most common employment disputes are unfair labour practices and unfair dismissals. Although the concepts are related, they are not the same.
Understanding the difference can help you determine whether you have a claim and, more importantly, how quickly you need to act.
What Is an Unfair Labour Practice?
The Labour Relations Act 66 of 1995 (“LRA”) defines an unfair labour practice as certain unfair conduct by an employer towards an employee during the employment relationship.
Unlike dismissal disputes, an unfair labour practice generally arises while the employment relationship continues.
Unfair Promotion, Demotion, Training or Benefits
An employer may commit an unfair labour practice where it acts unfairly in relation to:
- Promotion opportunities;
- Demotion decisions;
- Access to training;
- Employee benefits.
For example, where a suitably qualified employee is repeatedly overlooked for promotion without a fair reason, or where employment benefits are arbitrarily withdrawn, the employee may have grounds to challenge the employer’s conduct.
Unfair Suspension or Disciplinary Action
Employees are also protected against unfair disciplinary measures that fall short of dismissal.
This may include:
- Unreasonable precautionary suspensions;
- Suspensions without pay where not justified;
- Disciplinary sanctions imposed through an unfair process.
Not every suspension is unlawful, but employers must generally be able to justify the decision and follow a fair process.
Failure to Reinstate or Re-Employ
Where an employer refuses to reinstate or re-employ an employee in circumstances where it is required to do so by agreement, settlement, or law, an unfair labour practice dispute may arise.
Victimisation Following Whistleblowing
Employees who make protected disclosures are entitled to protection under South African law.
If an employee suffers prejudice, victimisation, or other workplace disadvantages after reporting misconduct, corruption, or unlawful conduct, they may have grounds to pursue an unfair labour practice claim.
What Is an Unfair Dismissal?
An unfair dismissal occurs when an employee is dismissed without a fair reason, without a fair procedure being followed, or both.
Many employees assume a dismissal only occurs when they receive a termination letter. In reality, the Labour Relations Act recognises several forms of dismissal.
Dismissal Without a Fair Reason or Procedure
Employers are generally required to demonstrate:
- A valid reason for dismissal; and
- A fair disciplinary or consultation process.
A dismissal may be unfair if an employee is dismissed without a disciplinary hearing, denied an opportunity to state their case, or dismissed for reasons that cannot be justified.
Non-Renewal of Fixed-Term Contracts
A dismissal may also occur where an employee reasonably expected:
- A fixed-term contract to be renewed; or
- Permanent employment to be offered,
but the employer fails to do so without a fair reason.
These disputes frequently arise where employees have worked under repeated fixed-term contracts for extended periods.
Refusal to Allow an Employee to Return After Maternity Leave
An employer who refuses to allow an employee to return to work following maternity leave may face an unfair dismissal claim.
Employees are entitled to return to their employment following maternity leave in accordance with applicable legislation and contractual arrangements.
Constructive Dismissal
One of the most misunderstood forms of dismissal is constructive dismissal.
This occurs where an employee resigns because the employer has made continued employment intolerable.
Examples may include:
- Workplace harassment;
- Persistent bullying;
- Unreasonable conduct by management;
- Serious breaches of the employment contract.
Constructive dismissal claims can be complex and often require detailed legal analysis before resignation is considered.
Dismissals Following Business Transfers
The Labour Relations Act also protects employees where a business is transferred in terms of section 197.
Where substantially less favourable employment conditions are imposed following a transfer and an employee resigns as a result, the resignation may amount to a dismissal for legal purposes.
What Makes a Dismissal Unfair?
In labour law disputes, fairness generally has two components.
Substantive Fairness
The employer must have a valid and fair reason for dismissal.
Common grounds include:
- Misconduct;
- Poor work performance;
- Incapacity; or
- Operational requirements (retrenchments).
Procedural Fairness
Even where a valid reason exists, the employer must follow a fair process.
A dismissal that is substantively justified may still be unfair if the correct procedures were not followed.
The CCMA and bargaining councils will typically consider both aspects when determining whether a dismissal was fair.
How Long Do You Have to Refer a Dispute?
Time limits are critical in labour law matters.
Employees generally have only 30 days from the date of dismissal or the unfair conduct complained of to refer a dispute to the CCMA or the relevant bargaining council.
Missing the deadline may require a condonation application, which is not automatically granted.
Seeking legal advice as soon as possible is therefore essential.
What Remedies Are Available?
If a dismissal or labour practice is found to be unfair, several remedies may be available.
Depending on the circumstances, the CCMA, bargaining council, or Labour Court may order:
- Reinstatement;
- Re-employment;
- Compensation; or
- Other appropriate relief.
Compensation may amount to up to 12 months’ remuneration in many cases, and up to 24 months’ remuneration in certain automatically unfair dismissal disputes.
When Should You Contact a Labour Lawyer?
You should seek legal advice if:
- You were dismissed without a disciplinary hearing;
- You believe you were forced to resign;
- Your fixed-term contract was not renewed despite a reasonable expectation;
- You have been unfairly suspended;
- You are being victimised after making a protected disclosure;
- You are uncertain whether to approach the CCMA.
Obtaining legal advice early often makes a significant difference to the outcome of a dispute.
Labour Law Attorneys in Cape Town
Whether you are an employee seeking to enforce your rights or an employer responding to a workplace dispute, professional legal guidance can help ensure that the matter is dealt with correctly from the outset.
Our team assists clients throughout Cape Town and the Western Cape with:
- Unfair dismissal disputes;
- Unfair labour practice claims;
- CCMA referrals and representation;
- Constructive dismissal matters;
- Retrenchment disputes;
- Workplace investigations and disciplinary processes; and
- Settlement negotiations.
Need Advice on an Unfair Dismissal or Labour Dispute?
If you believe your employer has acted unfairly, or you require assistance responding to a labour law dispute, contact FDP Law to arrange a confidential consultation.