A THIN LINE BETWEEN MANAGEMENT PREROGATIVE AND VICTIMISATION
I receive numerous requests from employers of all types and sizes asking me to explain the meaning of labour law terms. The reasons for the high number of such requests include:
- There are a large number of labour law statutes and codes, and employers do not always have access to all of them
- There are numerous legal terms in labour law that are confusing, unclear, ambiguous and vague
- Many of these terms are not defined in the statutes despite the fact that these statutes
- Those terms that are defined in the statutes are sometimes still confusing because the definition is incomplete or unclear and therefore open to interpretation
- Court judges and arbitrators, via their judgements and awards, quite often disagree with each other on the meaning of certain terms and as to how they should be applied
- In view of these legal uncertainties employers, employees and trade unions struggle to understand and 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.
The legal terms and concepts that appear to confuse employers and employees include, amongst many others, the following:
Victimisation, reasonable, sufficient, con-arb, unfair dismissal, evidence, going concern, racial abuse, sexual discrimination, accumulated leave, consultation, automatically unfair, desertion and reinstatement.
Labour legislation avoids dealing directly with the concept of ‘workplace victimisation’. I have been unable to find this term mentioned anywhere in the LRA. This is most surprising in view of the fact that one of the key purposes of the Labour Relations Act (LRA) is to give effect to the Constitutional provision for the right to fair labour practice.
The LRA does, to an extent, 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.
In the case of Jabari vs Telkom SA (Pty) Ltd (2006, 10 BLLR 924) the employee was ostensibly dismissed for incompatibility. However, the Court found that the true reason for his dismissal was the fact that he had lodged grievances against the employer, challenged its unfair labour practices and refused a separation package. The Court found that this amounted to victimisation. The Court judged the dismissal to have been automatically unfair and ordered the employer to reinstate the employee retrospectively with full back pay.
While the law accepts management’s prerogative to control and discipline employees managers need to learn where the law draws its line between management prerogative and victimisation of employees. Section 186(e) does consider a forced resignation as a dismissal (constructive dismissal) and, if the employee can prove victimisation, he/she will have a good basis for a constructive dismissal claim.
To book for our Johannesburg seminar on REGAINING MANAGEMENT PREROGATIVE please contact Ronni via email@example.com or 0845217492.
BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: firstname.lastname@example.org. Go to: www.labourlawadvise.co.za