When is a Workplace Dispute an “Unfair Labour Practice”?

In this case, the employees argued that Telkom’s conduct violated their right to fair labour practices under section 23 of the Constitution. However, they did not claim that the conduct fell within the specific definition of “unfair labour practice” in the LRA.

This raised a legal issue known as the principle of subsidiarity.

What Is the Principle of Subsidiarity?

If Parliament has passed a law to give effect to a constitutional right, you must rely on that law first – rather than going straight to the Constitution.

So, if a law exists to protect a constitutional right, a person usually cannot ignore that law and argue their case based only on the Constitution. If they think the law is inadequate, their remedy is to challenge the law itself as unconstitutional.

What Did the Constitutional Court Say?

The High Court considered guidance from the Constitutional Court in Pretorius and another v Transport Pension Fund and another.

In that case, the Constitutional Court explained that applying subsidiarity in labour matters is complicated.

The Court made an important distinction:

• In some parts of the Constitution, Parliament is required to pass legislation to give effect to a right.
• In other parts, including section 23(1), which guarantees fair labour practices – Parliament is not necessarily required to create a complete and exclusive legal framework.

This matters because it affects whether someone can rely directly on the Constitution.

Is the Labour Relations Act the Complete Answer?

The Constitutional Court made it clear that the LRA does not claim to cover every possible unfair labour practice.

Although the LRA states that it was enacted to give effect to section 23 of the Constitution, it does not say that it completely replaces constitutional protection.

The same applies to the Basic Conditions of Employment Act (BCEA). It also says it gives effect to section 23 however it does not claim to deal with every possible unfair labour issue.

The Constitutional Court described South Africa’s labour law system as a “patchwork” of different laws. In other words, multiple statutes deal with labour rights, and none of them appears to provide full coverage on its own.

If several laws partly give effect to the same constitutional right, it becomes difficult to argue that they collectively “cover the field” entirely. That makes it less clear whether a person must always rely on legislation first.

What About the High Court’s Role?

The High Court pointed out that the LRA does not include every type of worker or every kind of unfair workplace situation in its definition of “unfair labour practice.”

Some categories of workers and certain types of unfair conduct fall outside its scope. In addition, earlier labour courts and international standards have recognised forms of unfair conduct that are not specifically listed in the LRA.

Importantly, the LRA acknowledges that the High Court may still hear certain labour-related disputes, especially where the claim is based on a breach of fundamental constitutional rights, rather than purely on the LRA.

The Court cautioned that High Courts should not shut the door on litigants in a way that undermines this structure.

When Does Subsidiarity Apply Most Strongly?

The judgment suggested that, in future, courts may need to distinguish between two situations:

1. Unfair conduct linked to LRA processes and procedures
   An example of this would be disputes directly connected to disciplinary processes or procedures governed by the LRA.
2. Unfair conduct not directly connected to LRA processes
   An example of this would be broader constitutional fairness issues that fall outside the Act’s defined categories.

The Court indicated that subsidiarity may apply more strongly in the first situation than in the second.

Why This Matters

For employees and employers, this case highlights an important point:

• The LRA is central to labour disputes.
• But it is not necessarily the final word on every unfair labour practice.
• In certain circumstances, a person may rely directly on the Constitution’s protection of fair labour practices.

South Africa’s labour law system is not a single, closed code. It is a combination of different laws working together that often overlaps. As courts continue to interpret these laws, the boundaries between legislation and constitutional rights may become clearer.

For now, the key takeaway is that not every workplace unfairness must fit neatly within the LRA’s definition in order to potentially raise a constitutional issue.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.