The fundamental question which must be answered is “what constitutes a ‘benefit’ as contemplated in S186(2)(a) of the LRA? In particular, it was recorded as follows: If a worker believes they were suspended unfairly, then this is also a case for discrimination. Prohibition of unfair labor practice According to [section 25T] No employer or workman or a trade union, whether registered under the Trade Unions Act, 1926 (16 of 1926), or not, shall commit any unfair labor practice. Put differently, the benefit dispute will be one relating to rights rather than one of interest, which includes remuneration. If, for example, the employer provides transport at night for employees working at his lodge to their homes, but two of the employees staying in the same area are not allowed to make use of the transport at night, then the employer discriminates. The reason is that non-payment of salary is referred to the Department of Labour. He ordered the company to pay each of them compensation equivalent to … Where the failure of an employer to evaluate employees on performance based contracts deprives such employees of salary increases, an unfair labour practice may have been committed. Indeed, understanding unfair labour practice starts with a better understanding of the laws governing employment. JA85/18)- Bringing finality to the debate of resignations with immediate effect to escape disciplinary action. However, we do and we are here to assist with all labour- and employment-related issues, also in understanding unfair labour practice instances. Usually these disputes arise in retrenchments situations. It is important to consider whether failure to award salary increment is an unfair labour practice. The non-payment of wages in the circumstances repudiated the contract of employment. [14] It is trite that . They went on to say that the term benefit should be interpreted to include a right or entitlement to which the employee is entitled, as well as an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice (subject to the employer’s discretion). The court thus held that benefits can include remuneration. According to the Act, every employee has the right not to be subjected to such practice. REMEDIES FOR UNFAIR LABOUR PRACTICE FINDINGS Compensation and other remedies for an employer’s unfair actions Dawn Norton Standard remedies set out in the Labour Relations Act 66 of 1995 (the LRA) upon a finding that an employer has committed an unfair labour practice (“ULP”) includes reinstatement, re-employment or compensation. [2] The application is opposed. var google_conversion_id = 957706833; Alleging unfair labour practice . A claim for an increase, so the court found, did not fall within the ambit of a ‘benefit’. Labour law does not place a statutory requirement on employers to pay bonuses of any sort, therefore, any payment of bonuses are also not regulated by labour legislation, but rather by contract, policy, or the establishment of practice. The Secretary of Labor may obtain an injunction to restrain any person from violating the FLSA, including the unlawful withholding of proper minimum wage and overtime pay. They need a voice that will do for them what COSATU does for unions and their members. Unfair Labor Practices by Unions. Rights, Duties And Unfair Labour Practices. The definition of remuneration in the Act is wide enough to include wages, salaries and most, if not all benefits.”. as an unfair labour practice dispute to the CCMA, in terms of Section 186(2)(a) of the LRA. Below, we try to clear up some of common misconceptions about unfair vs. illegal workplace conditions and practices. To this end, we briefly discuss some instances of unfair labour practice. In a succinct award, the arbitrator reached the following conclusions: "18. [CDATA[ */ Today is 23rd of May which means an 18-day delay has been made. Hyderabad: Nurses of the Nizam’s Institute of Medical Sciences on Tuesday staged a protest over unfair labour practices by authorities.Alleging harassment and non-payment … It is thus envisaged that almost all disputes between an employer and employees which relate to remuneration in terms of Section 186(2)(a) of the LRA will be able to be referred to the CCMA for arbitration. REFUSAL BY AN EMPLOYER TO REINSTATE FORMER EMPLOYEE IN TERMS OF ANY AGREEMENT. In Minister for Justice and Constitutional Development v Tshishonga [2009] 9 BLLR 862 (LAC) the Labour Appeal Court compared an unfair dismissal dispute with a delictual claim for non-ability damages. /* ]]> */, Copyright © 2018 Allardyce & Partners Attorneys. Non-payment must be referred to the Department of Labour as a non-payment of salary dispute. Vacation time and pay Most employees earn at least two weeks of vacation after every 12 months. In considering whether the non-payment of the salary increase constituted an unfair labour practice, the court held that payment of the salary increase had to be a ‘benefit’ for the purposes of s 186 (2) of the Labour Relations Act 66 of 1995 (LRA). The complaint of unfair … This is your best option as the Department of Labour offers assistance free of charge. Employees may also choose to identify the underpayment or non-payment of their salary as an unfair labour practice relating to the provision of a benefit and refer a dispute to the CCMA in this regard. Call us at 011 234 2125 for labour law assistance. var google_remarketing_only = true; first period amounted to an unfair labour practice in terms of section 186 (2) of the Labour Relations Act, 66 of 1995 ('the LRA'). The employer in turn agrees to pay a given amount (salary) to the employee for his/her services on a recurring basis (most times a monthly basis). This type of unfair labour practice requires an agreement to have been in existence (verbal, written, individual or collective). If every employee in the company must, for instance, pass a particular test before they can be promoted and all of them do so, but one employee is not promoted even though he did pass the test, then it is discrimination and thus unfair labour practice. Read More, © Copyright 2017 Consolidated Employers Organisation | Ref. No employer or workman or a trade union, whether registered under the Trade Unions Act, 1926 (16 of 1926), or not, shall commit any unfair labor practice. The unfair disciplinary action of, for instance, suspension, which the employee claims has been done without their wrongdoing, is an unfair labour practice, which must be referred to the CCMA. He ordered the company to pay each of them compensation equivalent to one month‟s wages. 195-02 Jutlander Road,Beaulieu Estate,Witpoort, Midrand, Tel: (011) 234 2125 A dispute regarding the unfair suspension may be referred as an unfair labour practice if the employee is on suspension for an This was not what the legislature had in mind. ... but last due to non payment of salary i left my off and started seeking job and after one month i got the job. The general rule is that all employees should be paid minimum wage and overtime compensation. If you believe your employer discriminated against you or you have otherwise been subjected to unlawful practices at work, call (513) 665-9500 for a free case review. In another example, the employer suspends the employee for a long period without pay for an argument between the employee and a co-worker but does not suspend the co-worker. It is imperative that employers and employees gain a better understanding of unfair labour practice in South Africa. If an employee is suspended for an unreasonably long period and where there is no plausible reason for the delay in finalising the disciplinary enquiry, then this would constitute an unfair labour practice. Found that employees’ suspension without pay constituted an unfair labour practice, and; Ordered the employer to pay to the employees the withheld remuneration. Section 186(2) of the Labour Relations Act 66 of 1995 (LRA), defines an ‘unfair labour practice’ as ‘any unfair act or omission that arises between an employer and an employee’. This means that the payment or non-payment of bonuses is a matter entirely for the employer to decide, and to negotiate with employees. If your back pay is $2,000, your liquidated damages will be $2,000. var google_custom_params = window.google_tag_params; the onus to establish existence of a decision that constitutes an unfair labour practice as provided in . Dismissing an employee without conducting a disciplinary hearing, Standard Bank of South Africa Ltd v Nombulelo Chiloane (case no. In the matter of Solidarity obo Oelofse v Armscor (SOC) Ltd and Others (21 February 2018), the Labour Court (LC) was tasked with reviewing a decision that the non-payment of a performance bonus was not an unfair labour practice, even though the … In particular, it was recorded as follows: Those are remedies similarly applied to dismissal … Information is relevant to the date of publishing – February 2018. as an unfair labour practice dispute to the CCMA, in terms of Section 186(2)(a) of the LRA. This is despite the decision of another arbitrator made at the same forum a little earlier that payments of merit awards do not fall into the definition of unfair labour practices. When an aggrieved employee decides to challenge the exercise of an employer’s discretion in relation to the payment or calculation of a bonus, the employee would bear the onus of showing that the employer, in exercising such discretion, acted irrationally, capriciously, grossly unreasonably or mala fide. This approach was, however, overturned by the Labour Appeal Court in Apollo Tyres and put to bed the debate as to whether a benefit is excluded from the definition of remuneration and stated as follows: “The distinction that the courts sought to draw between salaries or wages as remuneration and benefits are not laudable but artificial and unsustainable. The enforcement of the New National Minimum Wage Act 9 of 2018 and the conflict with the enforcement of the Bargaining Council main collective agreements. It is not regarded as an unfair labour practice dispute as this definition relates only to benefits and not salary. The unfair disciplinary action of, for instance, suspension, which the employee claims has been done without their wrongdoing, is an unfair labour practice, which must be referred to the CCMA. Factual background [3] The Applicant, Mr Abraham Smith (the employee) is employed by the Third Respondent (the Department) as a customer care officer at Vredenburg District. On the face of it, the employer’s conduct in awarding increment to other staff members to the exclusion of the applicant is arbitrary and inconsistent. All forms of pay are covered by the law, including salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits. REMEDIES FOR UNFAIR LABOUR PRACTICE FINDINGS Compensation and other remedies for an employer’s unfair actions Dawn Norton Standard remedies set out in the Labour Relations Act 66 of 1995 (the LRA) upon a finding that an employer has committed an unfair labour practice (“ULP”) includes reinstatement, re-employment or compensation. There is also a long history of union intimidation and coercion. prove unfair labour pr actice was discharged by IMATU. Ultimately, and on 10 April 2015, pursuant to this grievance, the first respondent gave written reasons for refusing to pay her performance bonus. Does non-payment of salary increase constitute Unfair Labour Practice? There are a limited number of unfair abour practices that the LRA defines, the types of treatment, which may constitute an unfair labour practice, are discussed hereunder. The arbitration award [4] On 10 July 2009, the applicant‟s claim was dismissed by the third respondent ('the arbitrator'). Unfair labour practice is about the omission of an action or being guilty of an unfair act in the employment relationship. The non-payment of wages in the circumstances repudiated the contract of employment. Contractual claims. An employee must refer a dispute regarding suspension without pay to the Department of Labour. Oelofse also lodged an internal grievancein this respect. Unions can also commit unfair labor practices and be sanctioned by the NLRB. In conclusion, the CCMA concluded that the increase which the employee was seeking falls within the scope of benefit and the CCMA would assume jurisdiction. Employers and employees do not always know which disputes to refer to their respective Bargaining Councils, the CCMA, or the Department of Labour. In Gayland v Telkom SA Ltd (1998) 19 ILJ 1624 LC (at22): “If the term ‘benefit’ is so generously interpreted so as to include any advantage or right in terms of the employment contract, even wages, item 2 (1) (b) would all but preclude strikes and lock-outs. LR2 6/3/377 |. No. Another example is when only the kitchen workers in a hotel get increases, bonuses in December, and employment contracts, while the front of house staff does not get any of the above. 2. alleging an unfair labour practice. FACTS In the matter of National Tertiary Education Union obo Mahomana and Another v University of Fort Hare [2019] 10 BALR 1102 (CCMA) the Commission for Conciliation, Mediation and Arbitration (“ … He was appointed in the said position in 2007 at salary level 7. You are advised to consult with us before using/relying on this information. 2 weeks later, still no balance of salary and the employer silent as a tombstone. Yes, It is unlawful to retaliate against an individual for opposing employment practices that discriminate based on compensation or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII, ADEA, ADA or the Equal Pay Act. relating to the provision of benefits to an employee.”. Found that employees’ suspension without pay constituted an unfair labour practice, and Ordered the employer to pay to the employees the withheld remuneration. on Can a Wage Dispute be referred to the CCMA as an Unfair Labour Practice? are referred to the Department of Labour. Payment of bonuses . Such practices include suspension of an employee for an unfair reason, refusing to reinstate an employee in accordance with the terms of an employment contract, suspending or taking disciplinary action against an employee for an unfair reason, and demoting an employee or not promoting an employee for an unfair reason. Usually, the salary payment is made not later than the 5th of every month. Hyderabad: Nurses of the Nizam’s Institute of Medical Sciences on Tuesday staged a protest over unfair labour practices by authorities.Alleging harassment and non-payment … an alleged unfair labour practice arising out of the non-appointment of Mahlase, obviously there are hurdles. The complaint of unfair … Anyone who engages in conduct prohibited by the Code is said to have committed an unfair labour practice. There is no law that requires fair pay -- but there are some things you can try to get a raise. The matter becomes a little more complicated by Section 65(1)(c) of the LRA which states the following: “LIMITATION ON THE RIGHT TO STRIKE OR RECOURSE TO LOCK-OUT; 1) No person may take part in a strike or a lock-out or any conduct in contemplation or furtherance of a strike or a lock-out if-, c) the issue in dispute is one that a party has a right to refer to arbitration or the Labour Court in terms of this Act or any other employment law.”. Salary differences may always provoke dissatisfaction, but provided that employers are able to rationally justify why one person is better paid than another, on the basis of the factors which are fair in terms of the Code of Good Practice, the discrimination is not unfair. "In respect of any unpaid salary and other employment-related payments already due to an employee when business rescue proceedings commenced, the employee becomes a preferred unsecured creditor of the company." What to do when you receive a compliance order for the National Minimum Wage? It is not regarded as an unfair labour practice dispute as this definition relates only to benefits and not salary. 3. a contractual claim To ensure employees can effectively exercise their right to join a union, the Code prohibits any conduct by employers, unions or other organizations or persons that might interfere with that freedom. This was a "dispute of rights". Examples of Unfair Labor Practices by Management Historically, employers have tried to prevent employees from working together to improve pay, benefits, or working conditions. If an employer who presently does not pay bonuses of any sort wishes to continue on that route he can do so, without fear of being accused of unfair labour practice. The payment must be done in South African rand. Therefore, wages and salaries, in other words, remuneration should be excluded from the term ‘benefits.”. [19] The alleged non-payment of bonuses is grounded on the provisions of section 186(2)(a) of the LRA, which define and deal with „unfair labour practice‟. Ultimately, and on 10 April 2015, pursuant to this grievance, the first respondent gave written reasons for refusing to pay her performance bonus. prove unfair labour pr actice was discharged by IMATU. The employees' case was that they were the victims of an unfair labour practice and that, as a matter of law, they were entitled to salary increases. section 186(2) rests on the applicant. The complainant was entitled to consider herself to have been dismissed. You are entitled to be paid at least four per cent of your total wages earned as vacation pay. The dispute was referred in terms of Section 186 (2) (a) of the Labour Relations Act (the “LRA”): “Unfair Labour practice” means any unfair act or omission that arises between an employer and an employee involving unfair conduct of the … If the employer, for instance, fails to promote an employee in accordance with the employer’s policy on promotion and it is the result of the employer’s discrimination against the employee, then it is unfair labour practice. Unfair labour practice is when the employer treats a job applicant or existing worker unfairly according to the practices defined in the Labour Relations Act of South Africa. Discrimination can occur due to sex or race, which are both prohibited under federal law. unfair labour practice dispute. Penalty for committing unfair labor practices According to [section 25U] Penalties for Not Paying Employees The reason is that non-payment of salary is referred to the Department of Labour. However, it is illegal for them to do the following: Management cannot … NB: this article is for information purposes … Unexpected Addition to the Food Industry Menu. Employers incorrectly classify employees and pay them a straight salary no matter how many hours worked in a week, when the employee should be paid by the hour and receive overtime compensation for all hours worked over 40 in a workweek . [14] It is trite that . According to the Act, the wages can be calculated on a monthly, weekly, daily, or hourly basis and payment must be done within seven days after the specific wage period has been completed. The commissioner found that the process leading to five employees not receiving a bonus was an unfair labour practice. In his opening address at the arbitration proceedings, Mr Mathibe, representing Mahlase, had submitted that what was being challenged was the non-appointment of the latter on the grounds of it being procedurally and substantively unfair3. Non-payment of salary - what recourse to employee To all the Labour Law guru's out there: An employer only paid half of previous month's salary to the relevant employee, with a promise of the rest to follow "as soon as [some other contract's] money comes in". If your employer is a good and responsible employer, then the odds are they would have informed you already of the reasons for the late (non) payment of salary before the salary was due. Monday - Friday: 8:00 am - 17:00 pm, /*