Section 186(2)(a) of the Labour Relations Act 66, 1995 ("the LRA") provides, inter alia that the unfair conduct of an employer relating to the demotion of an employee or relating to the provision of a "benefit" to an employee constitutes an unfair labour practice. What constitutes a benefit for this provision has been considered by numerous arbitration awards and court decisions, often in contradictory terms. In HOSPERSA & another v
In
"In my view, the better approach would be to interpret the term 'benefit' to include a right or entitlement to which the employee is entitled (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice subject to the employer's discretion. In my judgment 'benefit' in s 186(2)(a) of the Act means existing advantages or privileges to which an employee is entitled as a right or granted in terms of a policy or practice subject to the employer's discretion."
In its recent decision in of Department of Defence v
She then referred an unfair labour practice dispute to the relevant bargaining council arguing that she had been unfairly demoted. The bargaining council found that the employer had committed an unfair labour practice and ordered the employer to restore
The Labour Appeal Court
In the LAC, the employer argued, inter alia, that an unfair labour practice could only be claimed if a "prior right" had been infringed - this echoing the approach adopted in the HOSPERSA decision. The LAC, regarding
"[24] ... That she was then 'transferred' back to her previous post with the concomitant reduction of salary and obligation to repay
comment
The Farre decision is authority for the view that the approach adopted in Appollo Tyres also applies in the case of demotion disputes. An employee need not show an entitlement that arises ex contractu or ex lege to be retained in a post.
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