Unfair labour practice and the CCMA

What counts and what employees often misunderstand

Many employees approach the Commission for Conciliation, Mediation and Arbitration (CCMA) believing they have been subjected to an unfair labour practice, only to find their dispute falls outside the legal definition. This misunderstanding is common and often results in frustration, unnecessary legal costs, and dismissal of disputes at a preliminary stage.

The reason for this is simple: not all unfair treatment in the workplace amounts to an unfair labour practice in law. Understanding what the Labour Relations Act actually protects is essential before referring a matter to the CCMA.

What the law means by an unfair labour practice

An unfair labour practice is narrowly defined in section 186(2) of the Labour Relations Act 66 of 1995. It refers to specific forms of unfair conduct by an employer towards an employee, excluding dismissals, which are dealt with under a separate legal framework.

In practical terms, the CCMA will only consider an unfair labour practice claim if it falls within one of the limited categories recognised by the Act. General unfairness, poor management and interpersonal conflict do not automatically qualify.

Promotion, demotion, probation and training

One recognised category involves unfair conduct relating to promotion, demotion, probation or training. Employees often assume that being overlooked for promotion is automatically unfair but this is not the case.

The CCMA does not decide who should have been promoted. Instead, it examines whether the employer followed a fair process and whether the decision was rational, consistent, and not arbitrary or discriminatory. Employers retain discretion, but that discretion must be exercised fairly.

Suspension and disciplinary action short of dismissal

Suspension is one of the most common grounds for unfair labour practice referrals; and it is also one of the most misunderstood. Discipline itself is not unfair. Employers are entitled to discipline employees. However, a suspension may be unfair if it is imposed without pay, extended for an unreasonable period, or implemented without affording the employee an opportunity to be heard. What the CCMA assesses is not whether discipline was justified, but whether the manner in which it was imposed was fair.

Disputes about benefits

Disputes concerning benefits generate a significant number of unsuccessful referrals. Many employees believe that any perceived entitlement constitutes a benefit. In law, this is incorrect. A benefit must arise from a contract, a policy or an established and consistent practice. Performance bonuses, discretionary salary increases or hoped-for incentives generally do not qualify unless there is a clear legal basis supporting the claim. The CCMA will not create benefits where none exist.

Reinstatement or re-employment after retrenchment

Another recognised category arises where an employer undertakes to reinstate or re-employ an employee following retrenchment but later fails or refuses to do so. This typically applies where there was a clear expectation or undertaking and the employer later fills the position with another person instead.

Common misconceptions employees have

A frequent misunderstanding is the belief that any unfair treatment automatically gives rise to a CCMA claim. The CCMA is not a general fairness tribunal. It is bound by statute and jurisdictional limits.

Another misconception is that workplace bullying automatically amounts to an unfair labour practice. While bullying may be serious and unlawful, it often falls outside section 186(2) and may need to be addressed through internal grievance procedures, harassment policies or other legal avenues.

Salary disputes are also commonly misunderstood. Unless a salary increase is contractually guaranteed or regulated by policy, the CCMA generally has no jurisdiction to intervene.

Timing is another critical issue. Unfair labour practice disputes must be referred to the CCMA within 90 days of the act or omission that is the subject of the complaint. Late referrals require condonation and are frequently refused where delays are inadequately explained.

What the CCMA actually considers

The categories listed in section 186(2) are exhaustive. When determining unfair labour practice disputes, the CCMA focuses on whether the dispute falls within the statutory definition, whether the employer acted procedurally fairly, and whether decisions were rational and consistent. The CCMA does not manage workplaces or substitute its own decisions for those of employers. Its role is corrective, not supervisory.

Practical guidance before approaching the CCMA

Before referring a dispute, employees should carefully consider whether their complaint fits within the recognised categories, whether there is a legal basis supporting the claim, and whether the referral is timeous. Where these conditions are not met, the employee may need to consider alternative remedies such as an internal grievance, a contractual claim, or a discrimination or harassment process under different legislation.

Unfair labour practice claims serve an important protective function in South African labour law, but they are not a remedy for all workplace dissatisfaction. The definition is narrow, the jurisdiction is limited, and the CCMA applies the law strictly.

Employees who understand these limits are better positioned to protect their rights effectively and avoid unnecessary disputes. Obtaining legal advice at an early stage can prevent incorrect referrals and assist employees in pursuing the correct remedy through the appropriate forum.

SD Law can help

Unfair labour practice disputes are subject to strict legal definitions and time limits. If you are considering referring a matter to the CCMA, early legal advice can help you determine whether your complaint falls within section 186(2) and what remedy is available. Contact Cape Town attorney Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential, personal discussion.

SD Law – Simon Dippenaar & Associates Inc.

Attorneys, Notaries & Conveyancers

SD Law is a Cape Town law firm with a strong practice in divorce and family law, urgent eviction matters, antenuptial contracts, liquor licence applications and selected commercial disputes. Clients instruct us when the matter is urgent, high-stakes or strategically sensitive, and when they want direct, clear legal advice backed by practical litigation experience.

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