Written by lvan lsraelstam, Chief Executive of Labour Law Management Consulting.
Of all the confusing legal terms used in labour law the one that keeps most judges, arbitrators, employers and legal practitioners awake at night is the term “unfair”. This is partly because this term is not defined in any of the statutes. However, every employer needs to have a grasp of the legal meaning of “unfair” in order to avoid the legal repercussions of doing anything unfair to its employees.
In my view, terms such as “one-sided” and “unequal” contain strong elements of what “unfair” means in labour law. That is, the concept of imbalance plays a significant part in my own interpretation of the term “unfair”.
STATUTORY TERMS
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.
Section 188 of the LRA deems a dismissal to be unfair, even if it is not automatically unfair, if the employer fails to prove-
- that the reason for the dismissal is a fair reason; and
- that the dismissal was effected in accordance with a fair procedure.
This section explains neither what is meant by “a fair reason” nor what a “fair procedure” is. However, Schedule 8 of the LRA includes a requirement that any person deciding whether a misconduct dismissal was fair must, amongst other things determine whether the dismissal was an appropriate sanction for the contravention of the rule that was contravened by the employee.
The word “appropriate” here again gives us a clue to what is “unfair”. That is, if the employer’s decision or action is inappropriate it could be unfair in labour law. The word “appropriate” in a labour law context implies that the employer’s action must be appropriate in the context of the specific situation in which the action was taken. If the employee is fired for a minor infringement or where circumstances reduce his/her liability a dismissal would usually be inappropriate and therefore unfair.
The challenge is then to decide what penalty is appropriate in each circumstance. This is not a simple matter but the general rule of thumb is that to consider dismissal for an offence that has had a most serious consequence would not be unfair unless relevant extenuating circumstances exist.
In summary, the act of an employer would be seen to be unfair if it infringes the employee’s rights, is one-sided, unnecessary and/or inappropriate under the circumstances. In order to develop an understanding of what this means in practice we will look at some actual cases in our next article.
Details:
To buy our e-Book, WALKING THE NEW LABOUR LAW TIGHTROPE please click on the Books menu item on www.labourlawadvice.co.za.
(011) 888-7944 or 0828522973 or via e-mail address: ivan@labourlawadvice.co.za.
