Employer’s Right To Correct Procedural Irregularities In Effecting A Dismissal

Unfair Labour Practices

The purpose of the Labour Act Chapter 28:01 is to advance social justice and democracy at the workplace by seeking to promote fair labour standards among other things.(S 2A (1)(d). In line with this purpose, the Act defines certain acts or omissions which constitute ‘unfair labour practices by employer’.

The Act provides that an employer or any other person commits an unfair labour practice if, by act or omission, it;

  • prevents, hinders or obstructs any employee in the exercise of any right conferred upon him in terms of Part II of the Act. The aforesaid rights in Part II include the right to membership to a trade union and workers committee, protection against forced labour, protection against discrimination etc.
  • contravenes any provision of Part II or of section eighteen;
  • refuses to negotiate in good faith with a workers committee or a trade union which has been duly formed and which is authorized in terms of this Act to represent any of his employees in relation to such negotiation;
  • refuses to co-operate in good faith with an employment council on which the interests of any of his employees are represented;
  • fails to comply with or to implement a collective bargaining agreement, a decision,finding,direction or determination which is binding upon it in terms of this Act;
  • bargains collectively or otherwise deals with another trade union, where a registered trade union representing his employees exists;
  • demands from any employee or prospective employee any sexual favour as a condition for recruitment for employment, the creation, classification or abolition of jobs or posts; or the improvement of the remuneration or other conditions of employment of the employee; or the choice of persons for jobs or posts, training, advancement, apprenticeships, transfer, promotion or retrenchment; or the provision of facilities related to or connected with employment; or any other matter related to employment;
  • engages in unwelcome sexually-determined behaviour towards any employee, whether verbal or otherwise, such as making physical contact or advances, sexually coloured remarks, or displaying pornographic materials in the workplace.

The question which arises is who constitutes the ‘employer’ given that employers can be juristic persons who for example cannot be said to demand sexual favours as a condition for employment. The Act defines the employer as any person whatsoever who employs or provides work for another person and remunerates or expressly or tacitly undertakes to remunerate him, and includes the manager, agent or representative of such person who is in charge or control of the work upon which such other person is employed;

These means that any acts or omissions by the any representative of the employer as defined above may be attributable to the employer which entitles an employee to seek redress against the employer in a court of law or any competent tribunal constituted in terms of the Labour Act or its subsidiary legislation.

The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.

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