BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or via e-mail address: email@example.com. Website: www.labourlawadvice.co.za. In criminal law an accused may be found guilty of and punished for wrongful behaviour only if that behaviour contravenes a law written into a statute. That is, punishable behaviour is confined to that behaviour specifically prohibited in black and white in one or other act of parliament. In labour law the identification of what is unacceptable behaviour is not quite so straightforward. The Labour Relations Act (LRA) does identify behaviour for which employees might be dismissed and employer behaviour that might be found to be unfair. However, the person presiding over the hearing in question still has a great deal of leeway in deciding whether the conduct of the employee or employer is truly unacceptable or unfair. Therefore, what is or is not unfair is seldom absolutely clear cut especially since there is no definition of the concept of unfairness in the LRA. The result of this is that the decision as to what is believed to be “unfair” has to be made by trade unions, employees, employers, judges, arbitrators, and legal practitioners in each individual case where unfairness is being alleged. For these reason the CCMA receives tens of thousands of referrals each year from employees claiming unfair treatment at the hands of their employers. While the legal meaning of the term ‘unfair’ is extremely illusive every employer needs to have a proper grasp of the legal meaning of “unfair” in order to avoid the legal repercussions of doing anything unfair to its employees. The Collins Concise Dictionary defines “unfair” as “characterized by inequality or injustice. Dishonest or unethical”. Again the concept of inequality plays a role in defining what is unfair. However, inequality or one-sidedness do not fully explain the concept of unfairness in labour law because there are many examples of one-sidedness that are not seen in labour law as unfair. For example, giving company cars to mangers and not to lower level staff is one-sided but is not per se unfair. On the other hand, it is hard to find an example of unfairness that does not have an element of one-sidedness. Section 23(1) of the Constitution of South Africa states that “everyone has the right to fair labour practices.” The word “right” in this legal provision is useful because infringing the rights of an employee is likely to be seen as unfair in labour law. The Labour Relations Act (LRA), born from the Constitution, provides that “every employee has the right not to be-
- unfairly dismissed; and
- subjected to unfair labour practice.”
- that the reason for the dismissal is a fair reason; and
- that the dismissal was effected in accordance with a fair procedure.