Labour law terms every employer should know

When it comes to disciplinary matters in the workplace, it is better to be prepared

Ivan Israelstam

I receive numerous requests from employers from all walks of life asking me to explain the meaning of a variety of labour law terms.

The reasons for the high number of such requests include the following: 

• 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 refer to them in other sections;
• Those terms that are defined in the statutes are sometimes still confusing because the definition is incomplete or unclear and therefore ambiguous and open to interpretation; and
• Court judges and arbitrators, as can be seen in 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 with legal steps when dealing with employees and disciplinary matters.

At the same time, employees are frequently unsure of what workplace rights they have and how far their rights extend. The legal terms and concepts that appear to confuse employers and employees include, among 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. We will be looking at these frequently confused concepts over the next few weeks in this column, beginning this week with victimisation.

While it is quite common in practice, labour legislation, in fact avoids dealing directly with the concept of "workplace victimisation". I have been unable to find the term "workplace victimisation" mentioned anywhere in the Labour Relations Act.

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 all to enjoy fair labour practices at their pace of work.

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 Employment Equity Act (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 is also prohibited under this section;

• 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.terms

In the case of Jabari v Telkom SA (Pty) Ltd (2006, 10 BLLR 924) the employee was ostensibly dismissed for incompatibility.  However, the court found that the real reason for his dismissal was the fact that he had lodged grievances against the employer, challenged its unfair labour practices and refused to accept a separation package that had been offered to him.

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. Employers therefore need to be very careful of doing anything that might resemble 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.

• Ivan Israelstam is chief executive of Labour Law Management Consulting.
  He can be contacted on 011-888-7944 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it  
• Our appreciation to Ivan and The Star newspaper for permission to publish this article…