Victimising employees is risky!

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There are numerous legal terms in labour law that are confusing, unclear, ambiguous and vague.

Many of these terms are undefined in the Labour Relations Act (LRA) and Employment Equity Act (EEA). Even those terms that are defined in the statutes are sometimes confusing because the definition is incomplete or unclear and therefore open to interpretation

Court judges and arbitrators, via their judgements and awards, quite often disagree with each other on the meaning of certain terms and as to how they should be applied

One of the legal terms and concepts that appear to confuse employers and employees is ‘victimisation’. This is partially because the labour statutes do not deal directly with the concept of ‘workplace victimisation’. This is most surprising in view of the fact that victimisation does interfere with the right to fair labour practice.

Applicable law

The LRA does appear to deal with the issue of victimisation in an indirect way.

For example, sections 5, 185 and 186(2) of the LRA deal with certain unfair practices (short of dismissal) that could amount to victimisation. In addition, chapter 2 of the EEA also alludes to practices that could constitute victimisation.

These sections attempt to define and prohibit the following acts on the part of employers:

  • Preventing employees or job applicants from joining trade unions or carrying out lawful trade union activities; Prejudicing employees to avoid or halt their lawful trade union activity or to disadvantage employees/applicants due to past trade union involvement;
  • Prejudice an employee or job applicant due to his/her legitimate disclosure of information;
  • Prejudice and employee or job applicant who has previously or who may exercise any right conferred by the LRA;
  • Bribe any job applicant not to…

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Read this article by Ivan Israelstam, Chief Executive, Labour Law Management Consulting, as well as a host of other topical management articles written by professionals, consultants and academics in the April/May 2018 edition of BusinessBrief.


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