An unfair labour practice at the CCMA is not the same as an unfair dismissal. It concerns unfair conduct during employment, not the termination of employment.
These disputes are often mishandled at the outset. Employees refer the wrong dispute type, and employers underestimate exposure because “the employee hasn’t been dismissed”. Both mistakes are avoidable with an early, procedural approach.
Disclaimer: This page is general information, not legal advice for your specific matter.
What is an unfair labour practice?
The correct starting point is the Labour Relations Act. An unfair labour practice is a defined category of dispute: it is an unfair act or omission between employer and employee involving the specific issues listed in section 186(2).
In practical terms: not every grievance is an unfair labour practice. The dispute must fit within the statutory categories.
The statutory categories of unfair labour practice (section 186(2))
An unfair labour practice includes unfair conduct relating to:
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Promotion, demotion, probation (excluding probation-dismissal disputes), or training, and the provision of benefits
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Unfair suspension, or any other unfair disciplinary action short of dismissal
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A failure or refusal to reinstate or re-employ a former employee in terms of an agreement
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Occupational detriment (other than dismissal) linked to a protected disclosure under the Protected Disclosures Act
The 90-day rule (referral time limit)
If there is a dispute about an unfair labour practice, the employee alleging it must refer the dispute in writing to the relevant forum:
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A bargaining council (if it has jurisdiction)
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The CCMA (if no bargaining council has jurisdiction)
That referral must be made within:
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90 days of the act or omission
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90 days from when the employee became aware of the act/occurrence (if later)
If the referral is late, a condonation application is required. (Late cases are not automatically accepted.)
Common examples of unfair labour practice disputes
Below are common categories that regularly arise in practice. Whether the conduct is “unfair” depends on the facts, consistency, process and the reasonableness of the employer’s decision.
Unfair suspension
Examples include:
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Precautionary suspensions that become prolonged without progress
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Suspensions implemented without a defensible rationale
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Disciplinary “punishment” framed as suspension without a fair process
Disciplinary action short of dismissal
Examples include:
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Written warnings issued without a fair hearing process
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Sanctions imposed inconsistently across employees for similar conduct
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Disproportionate penalties where corrective measures were appropriate
Promotion and demotion
Examples include:
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Arbitrary promotion outcomes that ignore stated criteria
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Demotion implemented without a defensible process or justification
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Irrational or inconsistent decision-making
Benefits
Examples include:
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Unfair refusal or withdrawal of benefits where the employer must exercise discretion fairly and consistently
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Unequal application of benefit policies without justification
Probation and training
Probation disputes and training-related disputes can fall within the unfair labour practice definition (separate from probation-related dismissals).
How the CCMA assesses unfair labour practice disputes
At arbitration, the commissioner will typically interrogate:
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What decision was made and by whom
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What policy, standard or criteria applied
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Whether the employee had a fair opportunity to be heard (where required)
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Whether similar cases were treated consistently
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Whether the outcome is objectively defensible on the evidence
A labour dispute is rarely decided by rhetoric. It is decided by process and proof.
Remedies available (and the compensation limit)
If an unfair labour practice is established, an arbitrator may determine the dispute on reasonable terms, including ordering reinstatement, re-employment, or compensation.
Compensation for an unfair labour practice must be just and equitable, but it is capped at 12 months’ remuneration.
Protected disclosures and “occupational detriment” cases
Where the unfair labour practice relates to an occupational detriment linked to a protected disclosure, the employee may refer the dispute to the Labour Court for adjudication (rather than the usual CCMA arbitration route), depending on how the case is pleaded and framed.
How unfair labour practice disputes connect to unfair dismissal cases
Unfair labour practice disputes often precede dismissals. A defective warning, suspension or demotion can later become a live issue in a dismissal dispute because it affects the factual matrix and the fairness evaluation.
For the dismissal process and deadlines, refer to our guide:
CCMA Unfair Dismissal: Process, Deadlines and Forms
When to seek legal advice
Consider advice early if:
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A suspension/warning/demotion is escalating
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A CCMA referral has been served
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Consistency and process are uncertain
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The dispute involves senior employees or material commercial risk
Labour dispute resolution services
This guide forms part of our broader labour dispute resolution services.