What is an unfair labour practice?

Employees arrive at the CCMA every week with genuine grievances that the CCMA cannot hear. A manager who is rude, a colleague who was favoured, a shift roster that feels punitive: all real, none of them necessarily an unfair labour practice.

This guide is part of our Discipline at work: warnings, hearings and dismissal, which links every guide on the topic.

The reason is that the Labour Relations Act 66 of 1995 does not use the phrase to mean "anything unfair an employer does". Section 186(2) defines it as a closed list, and conduct outside that list is not an unfair labour practice no matter how badly it has been handled.

The definition

Section 186(2) covers any unfair act or omission arising between an employer and an employee involving:

(a) Unfair conduct relating to promotion, demotion, probation or training, or to the provision of benefits. Disputes about dismissal for reasons relating to probation are excluded, because those are dismissals.

(b) The unfair suspension of an employee, or any other disciplinary action short of dismissal.

(c) A failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement.

(d) An occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, meaning a detriment suffered because the employee blew the whistle.

Four categories. That is the whole definition.

What it does not cover

Dismissal. This is the most common confusion. Dismissal is dealt with separately as an unfair dismissal under different provisions, with a different referral period of 30 days rather than 90. Referring a dismissal as an unfair labour practice wastes the one deadline that matters. Our guide on referring an unfair dismissal to the CCMA sets out that route.

Conduct by a fellow employee. The claim lies against the employer. Where a colleague is the problem, the question becomes what the employer did or failed to do about it.

Ordinary management decisions you dislike. Reorganising reporting lines, changing a shift pattern within the contract, allocating work differently. Unless it amounts to a demotion or an unfair change to a benefit, it falls outside.

Non-employees. Independent contractors are outside the definition, which is why the question of whether somebody is genuinely a contractor or a misclassified employee so often comes first.

A failure to pay wages. That is a contractual and Basic Conditions of Employment Act claim, with its own routes, not an unfair labour practice.

The categories that generate most disputes

Promotion. The claim is not that you should have been promoted. It is that the process was unfair: that the criteria were not applied, that the post was not advertised as the policy required, that the panel was compromised, or that the reason given was not the real one. Arbitrators are reluctant to substitute their own view of the best candidate, and will intervene where the process was flawed rather than where the outcome was disappointing.

Benefits. This has been the most litigated word in the subsection. A "benefit" means something the employee is entitled to, or has a legitimate expectation of, arising from the contract, a policy or established practice. It goes wider than the contract itself, which is why a long-standing practice that is withdrawn without process can found a claim. The dividing line between a benefit and remuneration matters, because a straightforward pay dispute belongs elsewhere.

Suspension. Precautionary suspension pending an investigation is lawful, but it must be on full pay, it must be for a proper purpose, and it must not drag on indefinitely. A suspension that is punitive in substance, or that continues for months with no progress, is a candidate. Our guide on suspension pending an investigation covers what a fair precautionary suspension looks like.

Disciplinary action short of dismissal. A final written warning that was disproportionate, or issued after a hearing that was not a hearing, sits here. The guide on written warnings and how long they last explains when a warning is fair.

Demotion. Including the demotion that is not called one: the same salary, the title kept, and the responsibilities removed.

Probation, and the line the Act draws through it

Probation appears in the list, but with a carve-out that confuses people, so it is worth setting out separately.

Unfair conduct relating to probation is an unfair labour practice. Unfair dismissal for reasons relating to probation is not: that is a dismissal, and it goes down the dismissal route.

So the two claims split according to what happened to you. If you were dismissed at the end of, or during, a probationary period, you have a dismissal dispute and 30 days to refer it. If you are still employed but the probation was handled unfairly, for example it was extended repeatedly without reason, no standards were ever communicated, no evaluation or guidance was given, or you were kept on probation long after the agreed period ended, that is an unfair labour practice and you have 90 days.

The substantive expectation in either case is the same. Probation is meant to be a period of assessment with support, not a licence to dismiss without reason. An employer is expected to set and communicate the standard, evaluate against it, give the employee reasonable guidance and an opportunity to improve, and only then decide. The Code of Good Practice: Dismissal, 2025, which replaced Schedule 8 of the Act from 4 September 2025, adds that probation may also assess the employee's suitability for the job, not only performance, and expects the employee to be heard before probation is extended or ended. An employer that did none of that and simply terminated at the end of month three has a weak case whichever route the employee takes.

The 90 days

An unfair labour practice dispute must be referred to the CCMA, or to the bargaining council with jurisdiction, within 90 days of the act or omission, or of the date the employee became aware of it.

Ninety days sounds generous and is not, because employees usually spend the first months of a dispute inside the internal grievance process, hoping to resolve it. The internal process does not stop the clock.

If you are out of time you must apply for condonation, which means satisfying the commissioner about the degree of lateness, the explanation for it, your prospects of success and the prejudice to the other side. Condonation is granted, but it is granted on a good explanation, and "I was using the grievance procedure" is a better explanation when you can show the dates than when you cannot.

The safe course is to refer within 90 days and continue the internal process in parallel. Referring does not stop you settling.

What you can get

Compensation for an unfair labour practice is capped at 12 months' remuneration, and in practice awards are usually considerably less, because compensation is for the unfairness rather than a windfall.

More useful in many cases is the other relief available. A commissioner can order the employer to do something: to run the promotion process again, to reinstate a withdrawn benefit, to set aside a warning, to lift a suspension. Where what you actually want is the post or the benefit rather than money, say so, because the remedy you ask for shapes the case you run.

Our guide on how much compensation the CCMA can award sets out the caps across the different claims, and how long a CCMA case takes covers the timeline.

How the process runs

Referral on the prescribed form, to the CCMA or bargaining council, within the 90 days.

Conciliation, where a commissioner tries to settle the matter. Attendance matters: a settlement at conciliation is quick and final, and many disputes end here.

A certificate of outcome if conciliation fails.

Arbitration, where evidence is led and a binding award follows. Unfair labour practice disputes go to arbitration at the CCMA rather than to the Labour Court, which is one of the practical advantages of this claim: it is faster and cheaper than litigation.

You may represent yourself. Legal representation at arbitration is not automatic and depends on the nature of the dispute and the commissioner's discretion.

Building the case

These disputes are decided on documents far more than on how strongly the employee feels.

Keep the policy or collective agreement that governs the promotion, the benefit or the disciplinary process, because the claim usually comes down to whether the employer followed its own rules. Keep the advertisement, the scoring sheet and the feedback. Keep the emails that show what was said at the time. Where a benefit has been withdrawn, gather evidence of the practice: payslips, past approvals, other employees who received it.

Write a chronology with dates before you refer. It will tell you immediately whether you are inside 90 days, and it is the single most useful document to hand to whoever helps you.

Worked example

This example is illustrative. Sipho has received a transport allowance for six years. It is not in his contract; it was approved by a former manager and has been paid monthly ever since. A new manager stops it in March without notice or consultation. Sipho raises a grievance in April, gets no outcome, follows up in June and July, and is told in August that the allowance was never contractual.

The stopping of the allowance is arguably unfair conduct relating to the provision of a benefit. A benefit is not confined to what the contract says: six years of consistent payment is capable of founding a legitimate expectation, and withdrawing it without any process is what makes the conduct unfair rather than merely unwelcome.

His problem is the calendar. The act was in March. By August he is beyond 90 days and will need condonation. His grievance correspondence is his explanation, and because he has the dates in writing his prospects of condonation are reasonable. Had he referred in April and continued the grievance in parallel, there would be nothing to explain.

What he should ask for is the allowance reinstated, not compensation. That is the outcome he wants, and it is within the commissioner's power to order.