BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: email@example.com. Go to: www.labourlawadvice.co.za It is disquieting how often Court judges and arbitrators disagree with each other on the meaning of legal terms and on how they should be applied. In view of these legal uncertainties employers, employees and trade unions struggle to understand and are unable to agree on the requirements of the law because the meaning of the law is itself a reason for dispute. In practical terms, when labour law is unclear, then employers are unsure of how they should act when legal steps need to be taken and employees are unsure what workplace rights they have and how far their rights extend. One of the legal terms and concepts that appear to confuse employers and employees is ‘victimisation’. This is partially because the labour statutes do not deal directly with the concept of ‘workplace victimisation’. I have been unable to find this term mentioned anywhere in the (Labour Relations Act) LRA. This is most surprising in view of the facts that victimisation of employees occurs often and one of the key purposes of the LRA is to give effect to the Constitutional provision for the right to fair labour practice. The LRA does appear to deal with the issue of victimisation in an indirect way. For example, sections 5, 185 and 186(2) of the LRA deal with certain unfair practices (short of dismissal) that could amount to victimisation. And chapter 2 of the EEA also alludes to practices that could constitute victimisation. These sections attempt to define and prohibit the following acts on the part of employers:
- Preventing employees or job applicants from joining trade unions or carrying out lawful trade union activities; Bribing employees or prejudicing them so as to avoid or halt their lawful trade union activity or to disadvantage employees/applicants due to past trade union involvement;
- Prejudice an employee or job applicant due to his/her legitimate disclosure of information;
- Prejudice and employee or job applicant who has previously or who may exercise any right conferred by the LRA;
- Bribe any job applicant not to exercise any right conferred by the LRA;
- Unfair promotion, demotion, suspension, discipline, training or provision of benefits
- Unfair conduct on the employer’s part relation to probation or contravention of the Protection of Disclosures Act 26 of 2000.
- Unfair discrimination and harassment.