Can an employee, refer an unfair labour practice dispute under s186(2), after retirement, alleging that a former employer committed an unfair labour practice against him/her?
Section 186(2) of the LRA defines unfair labour practice as meaning “any unfair act or omission that arises between an employer and an employee involving: unfair conduct by the employer relating to promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee,” [ My emphasis].
In line with the reasoning in Endumeni Municipality, which is binding precedent, it is important to highlight that when interpreting language, it is critical to have an objective view of the language used and ascribe a sensible meaning which does not undermine the purpose of the Act.
Section 186 of the LRA does not say “or dismissed” “or retired employee” but says “employee”. This wording presupposes that the person in question is still employed. Further, on reading section 191 there is a clear distinction between dismissed employees and employees in respect of unfair labour practices.
The Courts have found that once retirement occurs there is no longer a valid contract of employment between the parties as it terminates by effluxion of time. This does not preclude parties from entering into a new contract which would reflect the meeting of the minds of the parties, employing such an employee after the retirement age is reached.
The CCMA, or relevant councils or accredited agencies only have jurisdiction over unfair labour practices between parties referred in an existing employment relationship. Unfair labour practice disputes referred after the employment relationship ends face this fatal challenge.
It is, therefore, critical to refer the unfair labour practice dispute, when the individual is still employed. In other words, the referral must be made during the currency of the employment relationship and not after the fact. Once an employee retires the employment relationship between the parties terminates by effluxion of time, therefore, if the dispute is referred after retirement the CCMA or relevant council or private agency would lack the requisite jurisdiction to hear the matter.