1. Unfair Labour Practice

2.  186(2) defines an ULP as act or omission that arises between an employer and an employee involving:  (a) Unfair conduct, by the employer, relating to demotion, promotion, probation, training of an employee or relating to the provisions of benefits to an employee.  (b) Unfair suspension – or disciplinary action short of dismissal  (c) Failure to reinstate or re employ a former employee if there was an agreement to that  (d) Occupational detriment, other than dismissal ito Whistleblowing.

3.  Promotion to higher position/authority/status.  ULP = omission by ER to take all relevant objective standards into consideration – incl. arbitrary, malicious / inconsequent conduct.  ER must meet procedural & substantive fairness:  PROCEDURAL: ◦ all must be afforded the opportunity to promote their candidate;  ER must follow own procedures

4. ◦ EE may challenge composition or competency of selection / interview panel ◦ Acting in a more senior position - no automatic right to be promoted ◦ Promotion involved REWARD, higher salary or granting a higher status ◦ Development of an employee-  EE ( Employment Equity) SUBSTANTIVE FAIRNESS: ◦ The REASONS for the promotion;

5.  ER has discretion to appoint a person it deems to be the best qualified – subjective standard may be applied as long as the reasons are logically linked to the criteria used.  External candidates will be appointed, whilst internal candidates will be promoted;  A promise to promote will not grant entitlement to a position, but can create a reasonable expectation.

6.  Move to a lower rank  Only as an alternative to dismissal, if used as disciplinary step - otherwise, should be subject to consultation.  See what constitutes benefits: transport allowance, provident funds, entitlement ex contractu or ex lege  You must train your employees if you have a contractual obligation to do so

7.  Suspension: Either as a “holding operation” or as a “ form of disciplinary action”: 1.Disc action – 1.Normally without pay. 2.Form of disc action short of dismissal. 3.Only without pay where dismissal would have been fair if not for mitigating circumstances. 2.Holding operation – 1.Pending a disc hearing WITH PAY! 2.Where ER has reasonable fear that EE might damage evidence/intimidate witnesses; 3.No hearing needed before suspension.

8.  Must be an agreement between parties AND a failure to re-employ and reinstate for this section to kick in  Otherwise, it could be discrimination or a contravention of sect 6 of the EEA, but not an unfair labour practice.  Usually during retrenchments an agreement is entered into between consulting parties to re – employ or reinstate retrenched employees if a suitable position arises.

9.  Newly hired employee may be put on a REASONABLE period of probation  A probationary employee is an employee and same procedures as with incapacity of an employee must be followed.  Purpose: to give employer the opportunity to assess employee's performance  Code of good practice DISMISSAL: deals with guidelines re probation

10.  NECESSARY TO ERADICATE CRIMINAL AND OTHER IRREGULAR CONDUCT IN ORGANS OF STATE AND PRIVATE BODIES.  Employees who “whistle blows” must be protected from being subjected to an “occupational detriment”  Disclosure must be made: 1.in good faith to: a.the employer, b.Public Protector or AG; c.Legal representative; d.MEC.

11.  Job applicants were previously not protected.  Now they are covered by the EE Act (section 9)  The appointment to a post of an external candidate is not covered by the LRA. Where discrimination is alleged, the EEA applies.  The appointment of an external candidate to a post is not covered by the LRA.  Only an ULP re non promotion due to the making of a protected disclosure.

12.  CCMA/BC - Conciliation  90 days from the date of the ULP or 90 days from the date that the employee became aware of the ULP  If conciliation fails, refer to CCMA or B/C for arbitration within 90 days after certificate of non resolution  Except if it deals with an occupational detriment- (L/C)  ULP re probation- compulsory can/arb.

13.  WHAT IS THE MEANING OF ULP?  DISCUSS THE RELEVANT ULP’S WITH REFERENCE TO PRACTICAL EXAMPLES  KNOW AND UNDERSTAND THE DIFFERENT FORMS OF ULP