GRIEVANCES IN THE WORKPLACE

It is in our experiencethat many employers are unfamiliar with how to conduct internal grievances raised by their employees. This is largely as a result of misinformation, a poorly drafted grievance policy and or recency effect. The three main issues when dealing with a

grievance raised by an employee are establishing whether a grievance has merit, successfully

navigating a grievance and resolving a grievance timeously.

A thorough understanding of the legal parameters governing grievances in the workplace are imperative for promoting harmonious relationships between employers and employees.

Employers should not flippantly dismiss a grievance, without fully understanding its merits and whether the employee has grounds for their concerns to be heard. Similarly, an employee

should avoid using the grievance process to ventilate trivial claims or unsubstantiated malicious allegations.

Injustice or Unfairness

A grievance is defined as a feeling of injustice or unfairness by an employee and generally relates to unfair labour practices, discrimination in the workplace and concerns relating to the employment conditions. A grievance does not include wage disputes or wage dissatisfaction, animosity between fellow employees or any other issues already dealt with through the company’s policies and procedures.

The Constitution of the Republic of South Africa, in conjunction with the Labour Relations Act

(LRA), asserts that everyone has the right to fair labour practices within the workplace. The Labour Relations Act 66 of 1995 provides mechanisms for resolving labour disputes that ensures that legitimate disputes between employees and employers are dealt with constructively and fairly. Other necessary legislation is the Basic Conditions of Employment Act 75 of 1997 (BCEA), which establishes the minimum conditions of employment and outlines the standards of employment. The Employment Equity Act 55 of 1998 addresses discrimination and promotes equal opportunity in the workplace. Section 23(1) of the Constitution of South Africa states that “everyone has the right to fair labour practices.” The word ‘right’ in this legal provision is relevant as infringing the rights of an employee is likely to be seen as unfair in labour law.

In labour law, “Unfair” is characterised by ‘inequality or injustice’ and ‘dishonest or unethical conduct’. The notion of inequality plays a role in explaining that which is unfair. Inequality or one-sidedness do not fully explain the concept of unfairness in labour law as there are a myriad of examples of one-sidedness that are not understood in labour law to be unfair. For example, awarding bonuses to senior managers and not to lower-level employees is one-sided, however, it is not regarded as unfair.

Employees Disputes

It is important to distinguish between the types of employee dispute raised, that is, ‘a dispute

of interest’ or a ‘dispute of right’. A right is something an employee is entitled to or has the

right to, in terms of the common law, a collective agreement, a contract of employment, or

labour legislation. Depending on the nature of the dispute, a dispute that is declared as a

result of the infringement of a right has to be determined by arbitration through the CCMA

or Bargaining Council, or by Labour Court adjudication if no agreement is reached to resolve

the matter in a conciliation hearing.

A dispute of right refers to the breach or violation of an employee’s rights in respect of what has been agreed between the employer. Examples are:

unfair dismissal disputes; unfair discrimination disputes; unfair labour practice disputes; and severance pay disputes.

In terms of the Constitution of the Republic of South Africa, 1996 and the Labour Relations Act 66 of 1995, employees have the right not to be unfairly dismissed and not to be subjected to unfair labour practices.

An interest is something, which an employee wants, but is not entitled to yet. Interest disputes

involve negotiation. In some instances, if agreement is not reached the parties involved may

resort to power play in the form of strikes and lock-outs to achieve their interests. A dispute of

interest refers to a dispute relating to a change to the employment status quo, however the employee cannot claim this as a right. For example, an employee does not have a right to a wage increase less so the value of the wage increase, unless the employer has expressly made provision in the employment contract, or the employee is on a minimum wage.

The employee can negotiate with the employer to this effect and make their demands known by striking as a collective in order to compel the employer to bend to their demands. In the instance where an agreement is reached between the parties, the issue then becomes legally enforceable, where should either party fail to comply the dispute becomes a dispute of right.

Unfair Labour Practice

An unfair labour practice is defined under Section 186(2) of the Labour Relations Act as any unfair act or omission that arises between an employer and an employee and refers to unfair treatment by the employer relating to promotion, demotion, probation (excluding dismissals

during probation), training and benefits. The LRA provides for the rights of employees to fair

labour practices and establishes a dispute resolution forum through the CCMA.

The Employment Equity Act 55 of 1998 (EEA) prohibits unfair discrimination in any employment policy or practice. This includes recruitment, promotions, training, benefits,

and dismissal. Discrimination based on race, gender, disability, religion, or any other arbitrary

ground is prohibited under the EEA. Grievances related to discrimination can be reported

to the CCMA or the Labour Court if not resolved internally.

Workplace harassment, such as sexual harassment and bullying, are regarded as serious grievances and addressed through internal policies and procedures. Employers are required to create a safe working environment and promptly address complaints.

Harassment is generally understood to be unwanted conduct, which impairs dignity; and which creates a hostile or intimidating work environment for one or more employees or is

calculated to, or has the effect of, inducing submission by actual or threatened adverse consequence; and is related to one or more grounds in respect of which discrimination is prohibited in terms of section 6(1) of the EEA.

The intersection of factor such as race, religion, gender, or disability increase the risk of harassment. Issues arising from the breach of employment terms are common grievances. Employees can raise a complaint if the employer fails to adhere to the agreed terms regarding their salary, working hours, or othercontractual obligations.

Addressing Grievances

Employees are encouraged to address their grievances by following an internal grievance procedure. An employee who has a grievance must raise the grievance verbally with his/her

manager, the employee must set out the exact nature and circumstances of the grievance, providing a clear and factual account of events. The employee may state the grievance in writing to his/her line manager should a verbal statement not be practical.

In line with the employers’ policy, the manager in this instance should make every attempt to

resolve the grievance. Swift attention paid to workplace grievances is critical for maintaining a productive and motivated workforce.

Unresolved grievances can lead to decreased job satisfaction, increased employee turnover, and costly legal battles. Employers are encouraged to establish clear grievance policies and ensure that their managers are trained to navigate grievances sensitively and impartially.

Employees

should equally be aware of their rights and make use of the appropriate channels for initiating grievances. Workplace grievances should be addressed fairly and without prejudice

to the parties to a dispute.

By fostering an environment of open communication and accountability, both employers

and employees can contribute to a positive and dispute-free workplace. 

For more information please contact

Colette Tanner,

T: +27 (0)31 767 0625

E: colette@drg.co.za

W: www.drg.co.za