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Unfair Labor Practices

The constitution provides that everybody has the right to fair labor practices (Poolman, 1985). The provision of fair labor practices has become very factorial and influential especially in the labor legislation. South African law grants legislative safety for employees subjected to unjust labor practices from their employers relating to promotions. This protection dealing with unfair labor practices and unfair dismissal is found in chapter VIII of the South African Labor Relations Act 66 of 1995. Conversely, since 1979, the notion of unfair labor practices has received a range of amendments when it was first introduced (Cheadle, 2002).

In most workplaces, from the manufacturing sector, the transport sector and the financial sector, issues of unfair labor practices, denials of employee’s rights and refusal to grant workers the freedom to choose their own unions have attracted a lot of debate for years. In all these sectors, several cases of workers’ victimization and abuses have been reported. This is because of unscrupulous employer’s greed for maximization of profits resorting to denial of rights and unfair labor practices to their employees.

The LRA recognizes a range of employment practices regarded as unfair. Succeeding in a claim, an employee needs to justify that the unfair allegations fall within the description of unfair labor practice provided by the Labor Relations Act 66/1995. It defines an unfair labor practice as an act considered unfair or exception arising from the relations between the employee and the employer in particular occasions.

In determining unfairness of a work practice, the English legislation states that it must be determined whether the employer reasonably or unreasonably acted in treating the conduct in question as adequate to merit a dismissal (Benjamin, 1990). This is to be determined in conformity with the case substantial merits and equity. An examination is required in determining the employer’s reasonableness in believing that the employee committed the assumed misconduct; whether the adopted procedure was reasonable in the circumstances; and the rationality of the imposed penalty.

The Industrial Court in Lefu v Western Areas Gold Mining Co followed this approach. The details of the case are as follows: the Company dismissed 205 employees for either partaking or inciting in a riot in its mine (Lefu v Western Areas Gold Mining Co, 1985). The employer did suffer huge financial losses as the riot resulted in nine deaths. Since the enquiry process would have taken at least five days, the employer did not hold any disciplinary enquiry as this would have meant housing those alleged of offences in its hostels. Moreover, it felt that dismissing them would ease the extremely emotional state of affairs created in the workplace.

The employees dismissed held their innocence proving that they had not committed any offence placed upon them. The court ruled that the employer (company) had committed an unfair labor practice. In reaching its verdict, it relied on the English law with Ferodo V R Barnes approval (Lefu v Western Areas Gold Mining Co, 1985). The court’s decision was that it was unnecessary to enquire whether an offence was committed. It should rather bediscussed whether there were reasonable grounds for the employees committing the offence at the time of dismissal. The dismissal was found to be unfair in this case. This constitutes an unfair labor practice.

In conclusion, decisions by courts that have attempted giving substance to the constitutional right to just labor practices point out that it is an indefinite notion incapable of being defined and, more so, the overriding principle ought to be fairness. The earlier decisions reached by Industrial Courts provide sufficient precedents to help courts decide what really constitutes fairness in the circumstance of unfair labor practices. Consideration of the effect of the employer’s conduct to employees is of paramount significance, and the effects should be evaluated beside the probable validation of the conduct of the employer.

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