In recognition of this fact, the Constitution of the Republic among others affords employees the right to fair labour practices, to form and join a trade union, and to participate in the activities and programmes of a trade union. These fundamental rights are contained in Section 23 of the Constitution.
The Labour Relations Act was promulgated in order to give effect to the fundamental rights contained in Section 23 of the Constitution. These rights are contained and explained in detail in the Labour Relations Act (the LRA).
Due to the unequal nature of the relationship between employers and employees, most employees do not fully and properly give effect to these rights, because they fear that they would be victimised or discriminated against by their employers.
To address this problem, the LRA affords protection to employees and persons seeking employment against any discrimination or any action which may prevent or which seeks to prevent an employee from exercising his employment rights.
In this regard, Section 5 of the LRA provides that:
(1) No person may discriminate against an employee for exercising any right conferred by this Act.
(2) No person may do, or threaten to do, any of the following -
(a) require an employee or a person seeking employment -
(i) not to be a member of a trade union or workplace forum;
(ii) not to become a member of a trade union or workplace forum; or
(iii) to give up membership of a trade union or workplace forum;
(b) prevent an employee or a person seeking employment from exercising any right conferred by this Act or from participating in any proceedings in terms of this Act; or
(c) prejudice an employee or a person seeking employment because of past, present or anticipated -
(i) membership of a trade union or workplace forum;
(ii) participation in forming a trade union or federation of trade unions or establishing a workplace forum;
(iii) participation in the lawful activities of a trade union, federation of trade unions or workplace forum;
(iv) failure or refusal to do something that an employer may not lawfully permit or require an employee to do;
(v) disclosure of information that the employee is lawfully entitled or required to give to another person;
(vi) exercise of any right conferred by this Act; or
(vii) participation in any proceedings in terms of this Act.
(3) No person may advantage, or promise to advantage, an employee or a person seeking employment in exchange for that person not exercising any right conferred by this Act or not participating in any proceedings in terms of this Act.
Parties may not agree to limit or exclude the protection afforded to the employees by Section 5 of the LRA.
The application of the protection afforded by Section 5 is discussed in decisions handed down by the Labour Court and the Labour Appeal Court in Kroukam v SA Link, Adams v Coin Security Group and Mckay v ABSA Group.
In Adams v Coin Security Group the Labour Court held that a dismissal is automatically unfair, if the employer dismisses an employee pursuant to an employee exercising his rights in terms of Section 5 of the LRA.
In Mckay v Coin Security Group the Labour Court held that the dismissal of the employee, after he had lodged a grievance in terms of the grievance procedure, was automatically unfair.
Lastly, the Labour Appeal Court held in the judgment of Kroukam v SA Link that because the dominant cause of the dismissal was the employee’s union activities, the dismissal was automatically unfair.
These judgments are underpinned by Section 23 of the Constitution and Section 5 of the LRA.
