If you have been dismissed without a hearing, forced to resign, unfairly suspended, or denied promotion without a fair reason, South African labour law may give you grounds to act. Two of the most common workplace disputes are unfair labour practices and unfair dismissal. Although they are related, they are not the same, and understanding the difference is important if you want to protect your rights.
At FDP Law, we assist employees and employers with labour law disputes in South Africa, including unfair dismissal claims, unfair labour practice disputes, CCMA referrals, disciplinary matters, and settlement negotiations.
What Is an Unfair Labour Practice in South Africa?
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 course of employment.
Unlike an unfair dismissal, an unfair labour practice usually arises while the employment relationship is still ongoing.
Common examples include unfair conduct relating to:
- Promotion
- Demotion
- Probation
- Training
- Benefits
- Suspension
- Failure to reinstate or re-employ
- Occupational detriment following protected disclosures
An unfair labour practice claim usually focuses on whether the employer acted unfairly in the way it exercised its power or made a decision affecting the employee.
Examples of Unfair Labour Practices
Unfair promotion, demotion, training or benefits
An employer may act unfairly if it overlooks a suitably qualified employee for promotion without a fair reason, arbitrarily removes benefits, or makes unjustified decisions about training, demotion, or probation.
Unfair suspension
Not every suspension is unlawful, but a suspension may be unfair if there is no proper reason for it or if the employer fails to follow a fair process.
Failure to reinstate or re-employ
An unfair labour practice dispute can also arise where an employer refuses to reinstate or re-employ an employee despite being required to do so by agreement, settlement, or law.
Victimisation after whistleblowing
Employees who make protected disclosures are entitled to legal protection. If an employer subjects an employee to unfair treatment because of whistleblowing, that may give rise to a labour dispute and other legal consequences.
What Is Unfair Dismissal in South Africa?
An unfair dismissal happens when an employee is dismissed:
- Without a fair reason
- Without a fair procedure
- Or without both a fair reason and a fair procedure
Many employees assume that dismissal only happens when they receive a termination letter. In South African labour law, dismissal is wider than that and can include several forms of termination or loss of employment.
Common Types of Unfair Dismissal
Dismissal without a fair reason or fair procedure
Employers generally need to prove both:
- Substantive fairness – there must be a valid and fair reason for the dismissal
- Procedural fairness – the employer must follow a fair process before dismissing the employee
A dismissal may be unfair if, for example, the employee was dismissed without a disciplinary hearing, was not allowed to state their case, or was dismissed for a reason that cannot be justified.
Non-renewal of a fixed-term contract
A dismissal may also arise where an employee reasonably expected:
- A fixed-term contract to be renewed, or
- Permanent employment to be offered
and the employer fails to do so without a fair reason.
Constructive dismissal
A constructive dismissal happens where an employee resigns because the employer has made continued employment intolerable.
Examples may include:
- Harassment in the workplace
- Persistent bullying
- Serious unfair treatment by management
- Material breaches of the employment contract
Constructive dismissal cases can be legally complex. Employees should usually get legal advice before resigning, because the burden of proof can be difficult to meet.
Dismissal linked to maternity or protected rights
Employees are also protected against dismissals linked to maternity, pregnancy, or the exercise of other protected workplace rights.
Dismissals following business transfers
In some cases, changes following a transfer of business may amount to dismissal where substantially less favourable conditions are imposed and the employee resigns as a result.
What Makes a Dismissal Unfair?
South African labour law generally looks at two elements of fairness.
Substantive fairness
The employer must have a valid and fair reason for dismissing the employee. Common potentially fair reasons include:
- Misconduct
- Poor work performance
- Incapacity
- Operational requirements, such as retrenchment
A dismissal is likely to be substantively unfair if there is no proper factual basis for the decision.
Procedural fairness
Even if there is a potentially fair reason, the employer must still follow a fair process.
This may include:
- Informing the employee of the allegations
- Giving the employee an opportunity to respond
- Holding a disciplinary hearing where appropriate
- Considering the employee’s explanation before making a final decision
A procedurally flawed dismissal may still be unfair even where the employer had a legitimate concern.
How Long Do You Have to Refer an Unfair Dismissal or Labour Dispute?
Time limits are critical.
In many cases, an employee has only 30 days from the date of dismissal, or from the date of the unfair conduct complained of, to refer the dispute to the CCMA or the relevant bargaining council.
Missing the deadline can seriously affect your claim, although late referrals may sometimes be condoned in limited circumstances. Acting quickly is always best.
What Remedies Are Available?
If a dismissal or labour practice is found to be unfair, the available remedies may include:
- Reinstatement
- Re-employment
- Compensation
- Other appropriate relief
Depending on the type of case, compensation may be up to 12 months’ remuneration, and in some automatically unfair dismissal matters, up to 24 months’ remuneration.
The correct remedy depends on the facts of the dispute, the nature of the unfairness, and the forum dealing with the matter.
When Should You Contact a Labour Lawyer?
You should seek legal advice as soon as possible 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 were denied promotion unfairly
- You are facing a CCMA dispute
- You need help preparing for a disciplinary process
Early advice can make a major difference to how a labour dispute is handled and whether important deadlines are met.
Labour Lawyers in South Africa
If you are dealing with an employment dispute, it is important to understand whether the issue amounts to an unfair labour practice, an unfair dismissal, or another labour law claim.
FDP Law assists with:
- Unfair dismissal disputes
- Unfair labour practice claims
- CCMA referrals and representation
- Constructive dismissal matters
- Retrenchment disputes
- Workplace investigations and disciplinary processes
- Settlement negotiations
If you believe your rights have been infringed in the workplace, contact FDP Law for legal advice on your position and the next steps available under South African labour law.