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Why the definition of unfair labour practice is very blurry

13 June 2018 12:55 PM
Tags:
CCMA
Labour law
unfair
unfair dismissal
Ivan Israelstam
arbitration

Labour law isn't very straightforward when it comes to unfair behaviour in the workplace, explains consultant Ivan Israelstam.

The legal definition of "unfairness" (or lack thereof) complicates workplace dynamics.

Expert labour law consultant Ivan Israelstam says that the meaning of unfair as a legal term is problematic.

The Labour Relations Act uses the term unfair instead of the concept of illegality, Israelstam explains.

Ruling on unfair dismissal or unfair labour practice becomes a difficult job for judges and arbitrators because of the subjective nature of unfairness, he adds.

Read: What is constructive dismissal? (and how to prove it)

The way to determine what is unfair in labour law is by referring to precedent set by case law and previous rulings.

According to Israelstam, if the act of an employer cannot be justified on its own merits, then it will generally be seen as unfair.

Read also: Dismissal isn't the default outcome of disciplinary action, a lawyer advises

Rational justification is needed when defending decisions made during arbitration on unfair labour practices.

It's a very problematic concept.

Ivan Israelstam, CEO of Labour Law Management Consulting

The word illegal is an objective word. Unfair is a subjective word.

Ivan Israelstam, CEO of Labour Law Management Consulting

There isn't an attempt to define unfair in the The Labour Relations Act.

Ivan Israelstam, CEO of Labour Law Management Consulting

One has to glean the meaning [of unfair] by looking at the at the pattern of decisions that have been made over the decades by the court.

Ivan Israelstam, CEO of Labour Law Management Consulting

Israelstam shared his expert advice and helped callers with their questions and cases.

Take a listen to the informative discussion during the World of Work feature:


13 June 2018 12:55 PM
Tags:
CCMA
Labour law
unfair
unfair dismissal
Ivan Israelstam
arbitration

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