Unfair Labour Practices: The Closed List, 90 Days, and You Keep Your Job

Someone junior to you got the promotion. Your duties were quietly moved to a colleague. You have been on precautionary suspension for six weeks and nobody has scheduled a hearing. Your performance bonus, paid every year for eight years, did not arrive.

None of that is a dismissal. You still have a job, and you are still being paid — which is exactly why people assume there is nothing to be done until they resign.

There is, and it is a materially better position to be in than the alternative. It is called an unfair labour practice, and the crucial thing about it is that it is a closed list.

The four things it can be

Section 186(2) of the Labour Relations Act 66 of 1995 defines an unfair labour practice as any unfair act or omission between an employer and an employee involving one of the following:

(a) "unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee"

(b) "the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee"

(c) "a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement"

(d) "an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act No. 26 of 2000), on account of the employee having made a protected disclosure defined in that Act"

That is the entire jurisdiction. The name sounds like a general licence to complain about unfairness at work. It is not.

If your grievance is not on that list, the CCMA cannot hear it as an unfair labour practice, and the referral will be dismissed on jurisdiction without anyone examining whether your employer behaved badly. Bullying as such is not on the list. A rude manager is not on the list. An unwanted transfer is not on the list unless it amounts to a demotion. Being overworked is not on the list. A refusal to increase your salary is not on the list.

That single paragraph is the most useful thing in this article. Check your complaint against the list before you do anything else.

"Benefits" is wider than it looks

Paragraph (a) covers "the provision of benefits", and the meaning of that word was fought over for years. Employers argued it covered only things you were already contractually entitled to — in which case the remedy was a contract claim and the CCMA had nothing to do.

The Labour Appeal Court settled it in Apollo Tyres South Africa (Pty) Ltd v CCMA (DA1/11) [2013] ZALAC 3. An early retirement scheme counted as a benefit even though the employee had no contractual entitlement to it and the employer had a discretion whether to grant it. Where an employer exercises a discretion over a benefit, the exercise of that discretion can be attacked as unfair.

But the court drew a line that matters just as much. The jurisdiction cannot be used to create benefits. It covers benefits that exist under a contract or in law, and the fair exercise of a discretion about them. It does not cover a demand for a new benefit, a new form of remuneration, or a new policy. "The company should pay a housing allowance" is not an unfair labour practice. "The company has a housing allowance policy and applied it to everyone except me, for no reason it will explain" may well be.

Probation, and the carve-out inside paragraph (a)

Paragraph (a) covers probation, then excludes "disputes about dismissals for a reason relating to probation" — because those are dismissals, referred as dismissals, on the 30-day clock.

So: being dismissed at the end of probation is a dismissal dispute. Being kept on probation indefinitely, having probation extended without evaluation or guidance, or being denied the training and assistance that Schedule 8 of the Act contemplates during probation, is an unfair labour practice. The employer side of these obligations is set out in our guide to probation and dismissal basics for a small employer.

Suspension: the one people wait too long on

Paragraph (b) covers "the unfair suspension of an employee or any other unfair disciplinary action short of dismissal".

There are two kinds of suspension and they are treated differently. Precautionary suspension, pending an investigation, is normally on full pay and is not by itself unfair. What makes it unfair is usually its length, the absence of any real reason, or the failure to run the process it was supposedly protecting. Punitive suspension, as a disciplinary sanction, is a penalty and is attacked like any other penalty — was it proportionate, was there a fair process.

The written warning that you believe was unjustified also sits here: it is "disciplinary action short of dismissal". So does a demotion imposed as a sanction.

The practical problem with suspension is the clock. People wait, reasonably enough, to see how the investigation turns out. Three months later the suspension is still running, the ninety days have gone, and the referral needs condonation.

Ninety days, not thirty

Section 191(1)(b) sets both deadlines, and the difference is the whole argument for using this route where it is available:

a referral must be made within "90 days of the date of the act or omission which allegedly constitutes the unfair labour practice or, if it is a later date, within 90 days of the date on which the employee became aware of the act or occurrence"

Against 30 days for a dismissal dispute.

And section 191(2) provides the same safety net, with the same warning attached:

"If the employee shows good cause at any time, the council or the Commission may permit the employee to refer the dispute after the relevant time limit in subsection (1) has expired."

Good cause needs a real explanation for the delay and reasonable prospects on the merits. It is discretionary. Do not plan around it.

Note the second limb of the ninety days: it runs from when you became aware, if that is later. For a benefit quietly withheld, or a promotion decision you only learned about months afterwards, that limb is doing the work.

What you can actually win

Section 193(4) gives the arbitrator wide latitude:

"An arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation"

That "on terms that the arbitrator deems reasonable" is broader than the dismissal remedies. An arbitrator can order an employer to redo a promotion process properly, to lift a suspension, to remove a warning, or to apply a benefits policy to you as it was applied to everyone else. Those outcomes are often worth more than money, because they leave you in the job with the thing you were denied.

Where compensation is ordered, section 194(4) caps it:

"The compensation awarded to an employee in respect of an unfair labour practice must be just and equitable in all the circumstances, but not more than the equivalent of 12 months remuneration."

Twelve months is a ceiling, not a going rate, and awards are commonly far below it.

Running the case while you still have a job

This is the part that makes the unfair labour practice route strategically different from every dismissal claim: you do not have to leave. You refer while employed, you are paid throughout, and if you lose you still have the job.

There is no statutory onus provision for unfair labour practices the way section 192 provides one for dismissals — that section is expressly about dismissal proceedings. In practice you are the one asserting the unfairness, so you are the one who has to prove it. That means the same discipline applies:

Use the internal grievance procedure first, in writing. It is not a legal precondition, but it creates the dated record and it is often the fastest fix.

Ask for reasons, in writing. For a promotion dispute, ask for the selection criteria, the scores, and who was appointed. An employer that will not explain a discretionary decision is in a much weaker position at arbitration than one that will.

Pin down the date. Ninety days runs from the act or omission, or from when you became aware. Write down when you found out and how.

Keep the comparators. Unfair conduct relating to benefits and promotion is usually proved by showing what happened to other people in the same position.

When you are ready to refer, our guide to how the CCMA works covers the forms, conciliation and arbitration.

And if you are thinking of resigning instead

Do not, until you have checked the list above.

Resigning and claiming you were forced out is a constructive dismissal claim: you lose the income immediately, the referral window halves to 30 days, and you have to prove the dismissal happened at all — from a resignation letter you wrote. We set that out in constructive dismissal in South Africa.

If what has actually happened to you is a demotion, an unfair suspension, a withheld benefit, an unjustified warning or a promotion process that was rigged, the unfair labour practice route gives you three times as long, a salary while you run it, and a remedy that can put you back where you should have been. The two claims are not alternatives to weigh evenly. One of them is simply better, when it is available.

If the underlying problem is that your job is going away rather than going badly, that is a third thing again, with its own process and its own money — see retrenchment and severance rights.

Frequently asked

Can I refer an unfair labour practice while I am still employed? Yes. That is the point of it. You keep your job and your salary while the dispute runs.

My manager bullies me. Is that an unfair labour practice? Not on its own. Section 186(2) is a closed list and harassment is not one of the four paragraphs. It may support a constructive dismissal claim, a grievance, or a claim under the Employment Equity Act if it is harassment on a listed ground — but it is not an unfair labour practice as defined.

I did not get a promotion. Can I challenge it? Yes, if the conduct was unfair — the wrong criteria, criteria applied inconsistently, a process not followed, or a decision made for an improper reason. You cannot challenge it simply because you believe you were the better candidate.

My annual bonus was not paid this year. Is that a benefit? Possibly. After Apollo Tyres, a benefit includes one the employer has a discretion over. If there is an established scheme or practice and the discretion was exercised unfairly or inconsistently, it can be referred. A demand for a bonus that has never existed cannot.

How long do I have? Ninety days from the act or omission, or from the date you became aware of it, under section 191(1)(b). Late referrals need condonation for good cause under section 191(2).

What can the CCMA order? Section 193(4) lets an arbitrator determine the dispute on terms it deems reasonable, including reinstatement, re-employment or compensation. Compensation is capped at 12 months' remuneration by section 194(4).

Is a written warning worth referring? It can be — it is disciplinary action short of dismissal under paragraph (b). Whether it is worth the process depends on whether the warning is being used as a step toward dismissal.