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Unfair labour practices: a nightmare for HR professionals

As the concept of ‘unfairness’ is not defined in the Labour Relations Act (LRA), HR professionals have been left scratching their heads about what it really means if something is unfair. To shed some light on the subject, I propose that something an employer does is ‘unfair’ in labour law if it infringes the employee’s fundamental rights, is one-sided, unnecessary and/or inappropriate under the circumstances.


What is unfair?

Of all the confusing legal terms used in labour law, the one that keeps most HR, IR and legal practitioners awake at night is the term ‘unfair’. This is not defined in any of the statutes, which leaves the decision of what is ‘unfair’ to whoever is applying their mind to each individual case.


How to prepare your next disciplinary case

While acting as a CCMA arbitrator and chairperson of disciplinary hearings, I have noted numerous reasons why employers lose dismissal cases at the CCMA.


5 questions to ask to determine if a dismissal will be fair


Last week, I shared with you how you must react when you first notice that one of your employees has slipped up. Today, I’m going to let you in on another secret that Frew learned at the Disciplinary Workshop run by Global Business Solutions last year.

1. Did your employee break a rule that controls conduct in the workplace?

Ask yourself if:

  • The rule that your employee broke did exist when he allegedly broke it. Have a disciplinary code in which you state all the rules which are valid in your company; and
  • If it did exist, did your employee actually break it?


Remember that it is up to you, the employer, to prove that your employee actually did break the rule in question on a balance of probabilities:

- What this means is that if, for instance, one of your employees broke a rule and you could
prove that the rule was actually in force when he allegedly broke it, and that he probably did break the rule. If there is doubt that he could’ve broken the rule, your employee will be found not guilty.

The law is always on the employee’s side!

2. Was the rule valid and reasonable?

The arbitrators must rule on this. If he says that the rule is not valid or reasonable, you can’t take disciplinary action against the employee because he allegedly broke this invalid and unreasonable rule.

How will the arbitrator decide if a rule is valid and reasonable?

The rule must be lawful and you must be able to justify that you need it in the context of your business. To determine this, he’ll look at the:

  • Nature of your business;
  • Circumstances in which you operate your business;
  • Type of work your company does; and 
  • The circumstances you conduct your company’s business in

3. Was the employee aware, or could he have reasonably been expected to have been aware, of the rule?

You can’t charge an employee with breaking a rule if he didn’t know that the rule existed in the first place.

To make sure that all your employees know what the rules are, communicate all your code of conduct to your employees through:

  • Distributing the disciplinary codes to all employees;
  • Putting notices on noticeboards or in common areas where employees will read it; and
  • Telling all new employees about disciplinary rules in the induction procedure.

4. Did you consistently apply the rule?

Always be consistent when you apply rules. So, if for instance employee A breaks a rule and you do not dismiss him for it, but employee B breaks the same rule and you dismiss him for this, employee B’s dismissal will not be fair.

5. Was dismissal a harsh-enough punishment for the rule being broken? Or could you have imposed a lesser punishment?

The ‘crime’ of breaking the rule must be serious enough to justify dismissal. Generally, it isn’t appropriate to dismiss an employee for a first misconduct offence:

  • Usually, implement progressive discipline with the aim of correcting the employee’s misbehaviour.

This means the instance of misconduct must be serious enough to warrant dismissal. These behaviours include intimidation, dishonesty, competing with the employer, etc.

Before you decide to dismiss someone, look at certain external factors as these may affect your decision:

  • The employee’s length of service;
  • His previous disciplinary record;
  • The nature of the job; and
  • The circumstances of the infringement itself.


Consider this first before you even think about instituting disciplinary action

At the end of November last year, Ivan Israelstam, CEO of Labour Law Management Consulting, published a general article about the procedures you must follow before you even THINK of dismissing an employee.