This topic deals with unfair labour practice relating to promotion and will focus mainly on the public education sector. The Labour Relations Act of 1956 and 1995, with respect to the concept of unfair labour practice, will be analysed. It is through this discussion that one appreciates how the concept of unfair labour practices has evolved in South African law. An attempt is made to define promotion and in this regard reference is made to cases decided upon by the Commission for Conciliation, Mediation and Arbitration (CCMA) or the Labour Court (LC). Furthermore, promotion is defined within the context of public education and applicable legislation. Due regard must be to the employment relationship between the employer and the employee as well as compare the current employee’s job with the job applied to. Unfair conduct by the employer will be discussed within the context of promotion. The prerogative of the employer will be discussed with reference to case law and that discussion will include an analysis of various principles with regard to procedural and substantive fairness. Various remedies provided for in dispute resolution mechanism in line with the provisions of the Labour Relations Act 66 of 1995 and relevant case laws will also be discussed. The last chapter deals with how to strike a balance between employee rights (that is educators) and the rights of learners, in the context of promotion disputes. In this regard reference to case laws will be made. In general the topic will deal with unfair labour practice, definition of promotion including promotion of educators, unfair conduct of the employer, onus of proof, remedies and striking the balance between the rights of the learners and educators.

Suspension as a form of an unfair labour practice can be of two categories. There could be a situation where an employer suspends an employee as a disciplinary sanction after an employee has committed an act of misconduct. This is often referred to as a punitive suspension. An employer may also suspend an employee pending a disciplinary hearing. In this case the employee has not yet been found guilty because the investigation into the alleged misconduct is still on going. The employee may be suspended as a way of preventing him from interfering with the investigation process into the alleged misconduct. This form of suspension is often referred to as a preventative suspension. It is very important to note the distinction between the two forms of suspension because the processes that are followed when effecting them are different. Failure to acknowledge the difference might result in a situation where an employer might be effecting a preventative suspension but the consequences might be that of a punitive suspension and end-up being an unfair labour practice. Suspension is a disciplinary measure, and it is important to note that in the event that the employer elects to implement a suspension, its conduct must be disciplinary in nature and intent and should be corrective rather than punitive.Unlike dismissals where the Code of Good Practice of the Labour Relations Act, No 66 of 1995 provides guidance on what constitutes procedural and substantive fairness, there are no guidelines on what constitutes procedural and substantive fairness when it comes to suspensions. This has resulted in a situation where suspension is treated as a minor aspect of disciplinary measures that is frequently abused as it is often on full remuneration. This, however, does not allow an employer to suspend employees at will, without merit and without following proper procedure. Suspension could have severe adverse effects on employees and often affects their reputation, goodwill, human dignity, self-esteem and the right to meaningful association and work. It is for this reason that suspension must be effected in a way that is procedurally and substantively fair.Punitive suspension is implemented as a sanction and is often without pay and is a last resort prior to dismissal. Preventative suspension occurs prior to a disciplinary hearing, with the aim of temporarily removing the employee from the workplace to enable the employer to conduct a proper investigation without interference. Unfortunately preventative suspensions are often abused by employers in that they protract over extended periods of time, making the preventative suspension punitive in nature, to the extent that the courts have been forced to intervene and lay down stringent requirements that must be met in order to prevent such abuse.There are various requirements for suspension which range from the intention of the employer, the audi alteram partem rule, sufficient reasons prior to suspension to period of suspension. Most employment relationships are governed by disciplinary codes or collective agreements, which often place limitations on the concept of suspension. Some codes provide for special leave at the option of the employee, which the employer often abuses instead of utilizing the preventative suspension option. This, however, is more often than not to suit a political agenda.In the event of non-compliance by an employer, an employee is not left remediless. An unfair suspension constitutes an unfair labour practice and an employee has the right to refer such dispute to the relevant labour forums like the CCMA or the relevant bargaining council. Employees are cautioned not to refer their disputes to the Labour Court for final relief, but rather to only approach the courts for urgent interim relief, like interdicts.

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Trust is one of the interconnecting links that nurture ongoing interactions between individuals. Trust is the crucial component of organisational effectiveness and is also viewed as an elementary aspect on developing communication relationships and satisfaction in the workplace. The purpose of this study was to investigate the differences in employee intended response towards untrustworthy behaviour by immediate supervisors. Untrustworthy behaviour by immediate supervisor results in confusion, worry, and fear, which at the end slows the wheels of progress and profit. A major finding in this study indicates that employees can intend to respond to untrustworthy behaviour by immediate supervisor in a number of ways, which might be formal as well as informal. A group of South African white collar employees intended to respond to untrustworthy behavior, through direct communication with supervisors, before invoking more formal procedures. These employees intend to respond stronger by declaring a CCMA dispute when faced with untrustworthy behaviour. There were no significant differences in intended response of employees from different gender and age groups. There are significant differences in the intensity of response of African and white employees. African employees intend to respond stronger to untrustworthy behavior by immediate supervisor than white employees. / Thesis (MBA) North-West University, Mafikeng Campus, 2011

The relationship between an immediate supervisor and an employee is of critical importance in employment relations. This relationship should be founded on trust in order to ensure job satisfaction and productivity. Unfair discrimination is prohibited in South African organisations, and is therefore legally and socially unacceptable. Unfair discrimination by immediate supervisors could lead to lower levels of job satisfaction and other negative forms of work behaviour. Employees who are exposed to unfair discrimination can respond in a number of formal and informal ways. South African labour laws allow for a number of informal and formal procedures for dispute resolution in the workplace, including unfair discrimination disputes. This study investigated white collar employee intended response to unfair discrimination by immediate supervisors. It was found that they will generally resolve such problems through direct communication with supervisors, before invoking more formal procedures. There were no significant differences in intended response of employees from different gender and age groups, but significant differences in the intensity of intended responses of people from different race groups were found. / Thesis (MBA) North-West University, Mafikeng Campus, 2011

The relationship between an immediate supervisor and an employee is of critical importance in employment relations. This relationship should be founded on trust in order to ensure job satisfaction and productivity. Unfair discrimination is prohibited in South African organisations, and is therefore legally and socially unacceptable. Unfair discrimination by immediate supervisors could lead to lower levels of job satisfaction and other negative forms of work behaviour. Employees who are exposed to unfair discrimination can respond in a number of formal and informal ways. South African labour laws allow for a number of informal and formal procedures for dispute resolution in the workplace, including unfair discrimination disputes. This study investigated white collar employee intended response to unfair discrimination by immediate supervisors. It was found that they will generally resolve such problems through direct communication with supervisors, before invoking more formal procedures. There were no significant differences in intended response of employees from different gender and age groups, but significant differences in the intensity of intended responses of people from different race groups were found. / Thesis (MBA) North-West University, Mafikeng Campus, 2011

This dissertation serves to investigate the existence of unfair labour practices (ULPs) in one institution of higher learning called X University, for reasons of confidentiality. The problem of this research is that there is existence of unfair labour practice in the X University. The above problem gave rise to different sub-problems and the research hypothesis. Literature review of this study surveyed different theories of labour relations. The theories reviewed include issues such as fair and unfair discrimination, the Labour Relations Act, discipline, Occupational Health and Safety and the role of the Labour Unions. Research methodology of this dissertation is quantitative. Qualitative methods used was not dominant. There was a use of percentages and frequencies for computing data. Data collection was in the form of questionnaires administered to 100 subjects. Preferred way of dealing with the subjects was through purposive sampling. The sample of this research is 100. It is through data that research subjects indicated that there is prevalence of ULPs in the X University. Sensitivity is exercised here, not to attribute the research findings to other organisations. The campus chosen has its own realities. This dissertation based its recommendations on the findings. The study mainly recommended that ULPs could be minimised by adopting policy relating to labour practices of the university. / M.Admin. (Industrial Relations) North-West University, Mafikeng Campus, 2005

LL.M / The provisions of South Africa’s law on dismissal based on operational requirements are frequently relied on by employers who dismiss employees to further various objectives. Against this background, this dissertation critically analyses the law providing for employers to rely on their operational requirements as a basis for fair dismissal, and the legal principles on selecting employees for dismissal based on operational requirements. As part of this analysis, the approach in South Africa is compared with the approach in Germany, the United Kingdom and Australia. The analysis is based on a critical literature study that includes a consideration of the relevant legislation, treaties, conventions, directives, case law, recommendations, textbooks, journal articles and statistical sources. This dissertation draws broad conclusions regarding the contents, effects and shortcomings of the aspects of South African law on dismissal based on operational requirements that fall within its scope. In broad terms, this dissertation finds that the conceptual model underpinning the South African regime on dismissal based on operational requirements, is intrinsically sound, but that certain aspects require reform. It finds further that South Africa’s law on dismissal based on operational requirements generally provides employees with a relatively high degree of employment security, and severely limits managerial prerogative. This dissertation concludes that the primary areas requiring reform relate to the test for substantive fairness that does not include a proportionality analysis to weigh up the competing interests of the employer and the employee(s), and the requirements regarding selection criteria that fail to include consideration of the impact of dismissal on individual employees and their dependents. This dissertation makes proposals for reform in these areas.

Section 157 of the LRA provides for the nature and extent of the Labour Courts jurisdiction. This provision has been subjected to extensive interpretation by the Judiciary and the various interpretations of the courts have not been entirely consistent. Specific mention is made of the relevance and applicability of section 157(1) and (2) of the LRA regarding the overlap between administrative law and contractual law into labour law. Reference will be made to case law specifically dealing with cases concerning the jurisdiction of the civil courts and labour courts where cases concerning employment and labour matters were brought either in terms of the PAJA or on the basis of contract law. The question arose whether matters which appear to be quintessential labour matters but simultaneously also capable of being entertained on the basis of the PAJA or in terms of contract law are matters which, generally, in terms of section 157(1) of the LRA fall within the exclusive preserve of the Labour Court or, in terms of section 157(2) of the LRA, fall within the concurrent jurisdiction of the High Court and the Labour Court. The discussion which follows will also include reference to the current legal position pertaining to the prohibition of public sector employees from pressing their claims relating to employment or labour matters in the civil courts on the basis of the PAJA as decided in the Chirwa v Transnet Ltd (2008) 2 BLLR 97 (CC) and; the impact thereof on employees pressing claims pertaining to employment and labour matters in the civil courts on the basis of contract law. In addition the similarity of considerations which are common to both administrative law and contract law regarding the “overlap” of each into labour law will be considered and discussed. In the light of the discussion which follows agreement will be expressed with certain decisions of the High Court and the SCA where civil courts were held to retain jurisdiction to entertain common law contractual claims concerning labour and iv employment matters as opposed to restricting all employment and labour matters to the forums established under the LRA and to claims and remedies which are provided for by the LRA.

Issues concerning employment are some of the most serious issues of our time. But it is in the last two decades or so that these started receiving consideration. For instance, South Africa has experienced changes in the landscape of employment relations in organisations in the last decades. And no area of South Africa law is more critical than the prohibition of unfair discrimination, especially in the workpalce. The enactment of the Constitution brought about the need to eradicate unfair discrimination in the workpalce. Section 9 of the Constitution states that no person may unfairly discriminate directly or indirectly against anyone and that national legislation must be enacted to prevent or prohibit unfair discrimination. To enforce this, certain legislations like the Labour Law Act, Employment Act, Promotion of Equality and Prohibition of Unfair Discrimination Act (Equality Act), were enacted to give effect to the equality provision of the Constitution. In a similar vein, in Nigeria, workplace discrimination which is at the top of human rights violation perpetrated by employers of labour is of paramount concern to legislators and the government. Sex , age, ethinicty, religion, trade union membership and political opinion are some of the grounds upon which workers may not be discriminated against in Nigeria. Section 17 of the Constitution states that the State social order is founded on the ideals of freedom, equality and justice. It goes on to provide that every citizen shall have equality of rights, obligations and opportunities before the law. More specifically, the section stipilates that the State shall ensure that all citizens, without discrimination of any group whatsoever, have the opportunity of livehood as well as adequate opportunity to secure suitable employment and that there is equal pay for equal work without discrimination on account of sex, or any ground. Hence, there are The Nigerian Labour Act, the Federal Character Commission, etc that are saddled with the responsibility of addressing unfair discrimination and giving force to the provision of the Constitution. Despite the anti-discrimination laws and provisions made available in both countries, it is still alarming to see that unfair discrimination in the workplace is still on the increase. This, as will be discussed later, is probably due to factors such as lack of communication, long-stading patterns of educational inequalities that have resulted in inequalities in manpower, differences in drive, motivation, cultural disposition and geographical opportunities, racial difference and ethnicity, domination of one group by the other, etc. This research will briefly focus on the comparison between the approaches to unfair discrimination in employment between South Africa and Nigeria. It will discuss the development of unfair discrimination, grounds on which it is perpetrated, defences relating to unfair discrimination, and anti-discrimination laws put in place by the two jurisdictions to curb discrimination, as well as suggest on how to forestall unfair discrimination.