UNFAIR LABOUR PRACTICES

An unfair labour practice in South Africa is a statutory right created by section 185 of the Labour Relations Act 66 of 1995 (the LRA), which gives every employee the right not to be subjected to an unfair labour practice and gives every employer the corresponding right to a fair labour practice by employees. Section 186 of the Act defines the prohibited conduct in two parts — on the employee side, unfair conduct by the employer relating to promotion, demotion, probation, training, appointment, or a benefit, and unfair suspension or any other “act or omission that causes an unfairness in the workplace” short of dismissal, and on the employer side, a list of workplace-related actions by employees. The right is enforced by referring the dispute to the CCMA within 90 days of the act or omission (in contrast to the 30-day window for unfair dismissal), then conciliation, and if unresolved, arbitration or, in the narrow categories that permit it, adjudication in the Labour Court under sections 191 and 193 of the Act.

The Right: Section 185 of the LRA

Section 185 of the Labour Relations Act 66 of 1995 creates the substantive right: every employee has the right not to be subjected to an unfair labour practice, and every employer has the right to a fair labour practice by employees. This is the umbrella right that the rest of the framework implements. It applies to all employees under the LRA’s broad definition, including fixed-term employees, probationary employees, and most non-managerial categories.

The right is distinct from unfair dismissal. An employee who is dismissed must use the unfair-dismissal route under section 191, not the unfair-labour-practice route, because section 186(1)(a) of the Act expressly excludes unfair dismissals from the unfair-labour-practice definition. The two statutory routes run on different timelines, use different substantive tests, and lead to different remedy caps.

The Definition: Section 186 of the LRA

Section 186 of the LRA defines an unfair labour practice in two parts. The employee-facing limb in section 186(2) lists the categories of conduct that the employer may engage in unfairly; the employer-facing limb in section 186(1)(b) lists conduct by employees that gives the employer a reciprocal right.

Employee-Facing Conduct (Section 186(2))

Unfair conduct by the employer relating to any of the following:

• Promotion of an employee, or a refusal or failure to promote.
• Demotion of an employee, or a refusal or failure to demote (rare in practice).
• Probation of an employee, or a refusal or failure to place an employee on probation.
• Training of an employee, or a refusal or failure to train, where the employer’s policy or practice supports such training.
• Appointment of an employee to, or refusal or failure to appoint to, a position. The wording has been read broadly since the 2018 line of cases following Avril Elizabeth Home Nursing (Pty) Ltd v CCMA, and the trend is toward more expansive coverage.
• Suspension of an employee, or any other “action that adversely affects an employee” short of dismissal. This catch-all includes unfair performance-management processes, unfair denial of leave, unfair changes to terms and conditions of employment, unfair disciplinary outcomes short of dismissal (such as final written warnings), and unfair refusal of references.

The exclusion of unfair dismissal from the definition means an employee who is dismissed cannot piggy-back an unfair-dismissal claim as an unfair-labour-practice claim. These are two separate statutory routes, and the framework expects the employee to pick the right one.

Employer-Facing Conduct (Section 186(1)(b))

Engaging in an unfair labour practice also includes an employee who:

• Engages in misconduct (indiscipline) at the workplace.
• Incites or encourages others to engage in misconduct.
• Participates in an unlawful strike, or in unlawful conduct in contemplation or furtherance of a strike.
• Fails to comply with a statutory obligation under the LRA or any related collective agreement.

For an employer who needs to challenge this conduct, the practical pathway is the same CCMA conciliation and arbitration process described below, with the employer as the referring party.

What the Definition Does NOT Cover

It is just as important to know what falls outside the unfair-labour-practice umbrella as it is to know what falls inside. The most common points of confusion are:

• Unfair dismissal — governed by section 188 of the LRA, with its own 30-day referral window and the substantive-and-procedural fairness test under the Schedule 8 Code of Good Practice on Dismissal. Dismissal that is alleged to be both substantively and procedurally unfair must be challenged via the unfair-dismissal route, not the unfair-labour-practice route.
• Pure discrimination claims — claims alleging unfair discrimination on a listed ground (race, gender, disability, age, and so on) are typically brought under the Employment Equity Act 55 of 1998 and may follow a parallel dispute route.
• Pure breach-of-contract claims — these generally belong in the civil courts (Magistrates’ Court or High Court), not the CCMA, unless the breach also constitutes an unfair labour practice under section 186.

The 90-Day Referral Window (Section 191)

An unfair-labour-practice dispute must be referred to the CCMA or a relevant bargaining council within 90 days of the date of the act or omission complained of, under section 191(1)(b) of the LRA. This is materially longer than the 30-day window for unfair-dismissal disputes. The longer window reflects the fact that the impugned conduct is often ongoing (a continuing refusal to promote, a continuing denial of training) or is harder to identify in real time than a single dismissal event.

The 90 days is counted from when the employee became aware of the act or omission, not from when the underlying decision was made internally. The test is when the unfairness crystallises into something the employee can challenge. Late referrals are not automatically fatal — the commissioner has a discretion to condone late referral if the employee shows good cause and reasonable grounds for the delay, but the threshold is real and unexcused lateness will bar the claim.

The Process: From Grievance to Award

Step 1: Internal Grievance (Where Applicable)

The LRA encourages employees to use any internal grievance procedure if the employer’s rules are reasonable. Failure to do so can be a ground for the CCMA to find the referral premature or to weigh against the employee on remedy. Internal grievance is not a formal precondition for unfair-labour-practice disputes (unlike unfair-dismissal matters, where the internal disciplinary appeal is a more meaningful step), but a credible refusal to use a fair internal process weakens the eventual case. The employee should put the grievance in writing, keep a copy, and note the date it was lodged and the date of any response.

Step 2: Refer the Dispute to the CCMA (or Bargaining Council)

File a CCMA referral of dispute (Form 7.11) at the regional office that has jurisdiction — usually the office in the province where the employee worked, or where the impugned act occurred. If the workplace falls under a registered bargaining council, the dispute must first go to the council (the LRA gives registered councils priority in their jurisdiction), and the council will attempt conciliation before the matter can be referred to the CCMA. The CCMA will set a conciliation date — typically within 30 days of referral, although the statutory window can be compressed in practice. If the employer is not a party to a registered bargaining council and the workplace is not covered by one, the dispute goes directly to the CCMA.

Step 3: Conciliation

The CCMA appoints a commissioner who mediates between the employer and the employee to try to resolve the dispute. Conciliation is confidential and conducted on a “without prejudice” basis — what is said in conciliation cannot generally be used against either party later. The possible outcomes are a settlement agreement (often recording a financial settlement, a corrective process, a reference letter, or a combination of these) or a certificate of non-resolution, which is the green light to proceed to arbitration or, where the law allows, to the Labour Court.

Step 4: Arbitration (or Labour Court Review)

After an unsuccessful conciliation, the employee may refer the dispute to the CCMA for arbitration. The commissioner at arbitration applies the fairness reasoning used in unfair-dismissal matters — is there a fair reason, was the procedure followed, is the outcome proportionate — although the LRA’s section 186 framework provides the specific substantive test. The Labour Court’s direct jurisdiction in unfair-labour-practice matters is narrower than in unfair-dismissal matters; the Labour Court generally hears the matter on review from the arbitration award, rather than as a first-instance forum. The award is issued in writing, with a statutory deadline of within 14 days of the conclusion of the arbitration (subject to extension by agreement).

Step 5: Section 193 Remedies

The LRA provides the following remedies for unfair-labour-practice disputes, in section 193:

Remedy	What It Means
Compensation	The commissioner may order the employer to pay compensation on terms the commissioner considers fair. For unfair-labour-practice disputes, the compensation is capped at the equivalent of 12 months’ remuneration — half the 24-month cap that applies to automatically unfair dismissal under section 187.
Compliance order	The commissioner may order the employer to comply with the relevant provision of the LRA, the employment contract, or any applicable collective agreement — for example, ordering a promotion that was unfairly withheld, or ordering access to training.
Corrective order	The commissioner may order the employer to take steps to rectify the unfair labour practice — for example, withdrawing a final written warning that was issued unfairly, restoring an employee to a position from which they were unfairly demoted, or reversing an unfair denial of leave.
Costs	Costs orders against an unsuccessful party are discretionary and generally limited to instances of abuse or frivolous conduct. The commissioner cannot award costs against a party merely for losing.

Forum: Where the Dispute Is Actually Heard

The unfair-labour-practice right created by section 185 of the LRA is enforced through the Commission for Conciliation, Mediation and Arbitration (CCMA) as the first-instance forum, with the Labour Court sitting in review of arbitration awards. The CCMA’s regional footprint is the practical wayfinding fact for employees and employers across the country: Johannesburg handles Gauteng matters, Cape Town handles the Western Cape, Durban handles KwaZulu-Natal, and Port Elizabeth handles the Eastern Cape, with the CCMA’s head office in Johannesburg coordinating national policy. Registered bargaining councils take priority in the industries and workplaces where they are registered — notably mining, construction, metals, motor, retail, and several public-sector councils — and a workplace falling under a council must refer its unfair-labour-practice dispute there first, not to the CCMA. For Gauteng-based employees, the Johannesburg CCMA regional office is the natural intake point; the Labour Court, which sits in Johannesburg, Cape Town, and Durban, is the forum for review applications and direct adjudications in the narrower categories that permit it.

What an Employee Should Document Before Referring

Going into conciliation with a thin file is one of the most common reasons unfair-labour-practice claims fail on the merits. Before filing, an employee should compile:

• The impugned act or omission — dates, persons involved, written communications.
• Any internal grievance lodged and the response received.
• Witness names and a short statement of what each witness can confirm.
• Relevant policy or contract clauses that establish the standard the employer is alleged to have breached.
• Evidence of comparators — how other employees in similar situations were treated (especially in promotion, training, and benefit claims).

What an Employer Should Document Before Conciliation

For an employer defending an unfair-labour-practice claim, the file must show the substantive and procedural basis of the challenged decision, not just the outcome:

• The decision-making process — minutes, written warnings, performance reviews, memos.
• The substantive reasons for the impugned decision.
• The policy or practice on which the decision was based.
• Any comparator evidence (other employees treated similarly).

Why Engage a Specialist Labour Law Attorney

Unfair-labour-practice disputes are document-heavy, deadline-sensitive, and turn on close attention to the section 186 categories. The CCMA process is designed to be accessible without representation, but the substantive case often comes down to how the impugned conduct is characterised, which comparator evidence is led, and how the 90-day window is argued — questions where an experienced labour attorney shifts the outcome. A specialist will also triage the matter against the unfair-dismissal route quickly, because the wrong statutory forum can be fatal.

Burger Huyser Attorneys fields unfair-labour-practice work through its Labour Law practice, led by specialist consultant Marius Ferreira. The firm’s head office at 49 First Avenue, Linden, Randburg (011 888 0246) is the practical intake point for Gauteng matters, with the firm’s Centurion, Pretoria, Sandton, Bedfordview, Roodepoort, Alberton, and Midrand branches handling client-side consultation and intake across the province.

Frequently Asked Questions

What is an unfair labour practice in South Africa?

An unfair labour practice is a statutory right created by section 185 of the Labour Relations Act 66 of 1995 and defined in section 186. On the employee side, it covers unfair conduct by the employer relating to promotion, demotion, probation, training, appointment, or benefits, and unfair suspension or other acts causing unfairness in the workplace short of dismissal. On the employer side, it covers employee misconduct that breaches workplace rules, incitement of others to do so, and participation in unlawful industrial action. Unfair dismissal is excluded from the definition and is governed by a separate framework under section 188.

How long do I have to refer an unfair labour practice dispute to the CCMA?

An unfair-labour-practice dispute must be referred to the CCMA (or a relevant bargaining council) within 90 days of the date of the act or omission, under section 191(1)(b) of the LRA. This is three times the 30-day window for unfair dismissal. Late referrals may be condoned if the employee can show good cause, but the threshold is real and unexcused lateness will typically bar the claim.

What’s the difference between an unfair labour practice and an unfair dismissal?

Unfair dismissal is governed by section 188 of the LRA, has its own 30-day referral window, and uses the substantive-and-procedural fairness test under the Schedule 8 Code of Good Practice on Dismissal. Unfair labour practice is governed by section 186 of the LRA, has a 90-day window, and covers workplace conduct short of dismissal. An employee who is dismissed must use the unfair-dismissal route; an employee who is unfairly denied a promotion, training, or a benefit uses the unfair-labour-practice route. The two cannot be combined.

Can I take my unfair labour practice claim to the Labour Court directly?

Generally not. Most unfair-labour-practice disputes must first go to conciliation at the CCMA (or a bargaining council), and only after a certificate of non-resolution can the matter be referred to arbitration or, on review, to the Labour Court. Direct Labour Court adjudication in unfair-labour-practice matters is narrower than in automatically unfair dismissal matters under section 187.

What compensation can I get for an unfair labour practice?

Section 193 of the LRA caps compensation for unfair-labour-practice disputes at the equivalent of 12 months’ remuneration — half the 24-month cap that applies to automatically unfair dismissal. The commissioner also has the power to order compliance (e.g. ordering a promotion), to order corrective steps (e.g. withdrawing an unfair final written warning), and to award costs in cases of abuse or frivolous conduct.

Do I have to use the internal grievance procedure first?

The LRA encourages it, and the CCMA may take a failure to use a fair internal process into account in assessing the merits of the claim or the appropriate remedy. Unlike unfair dismissal, however, exhaustion of internal grievance is not a strict precondition for an unfair-labour-practice referral, but a credible refusal to engage an internal process the employer is willing to run will weaken the eventual case.

If you have been subjected to an unfair labour practice at work — an unfair denial of a promotion, training, or a benefit, an unfair suspension, or any other conduct short of dismissal that falls within section 186 of the Labour Relations Act — Burger Huyser Attorneys’ Labour Law team can advise on the 90-day referral window, prepare the CCMA referral, represent you at conciliation and arbitration, and handle any review at the Labour Court. The work is led by specialist consultant Marius Ferreira, with Gauteng matters run from the head office at 49 First Avenue, Linden, Randburg (011 888 0246). The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and serves clients across its eight Gauteng branches — Centurion, Pretoria, Sandton, Bedfordview, Roodepoort, Alberton, and Midrand — for intake and consultation. Note the 90-day window: late referrals may be condoned only on good cause shown, so early advice matters.