Unfair Labour Practice: The Four Categories and the 90-Day Deadline

An unfair labour practice is the Labour Relations Act's name for unfair treatment at work that falls short of dismissal: a promotion handled unfairly, a demotion, an unfair suspension or warning, or detriment for whistleblowing. It has its own definition, its own 90-day deadline and its own compensation limit, and it is easy to confuse with unfair dismissal.

This guide is general legal information, not legal advice. For advice on your own situation, consult an attorney, or contact Legal Aid South Africa (0800 110 110) if you cannot afford one.

Information last verified on 25 October 2026. This page covers unfair labour practice disputes under the Labour Relations Act 66 of 1995 (the LRA). It does not cover unfair discrimination claims under the Employment Equity Act, which follow a separate route.

What the Law Says

Section 185 of the LRA says every employee has the right not to be "(a) unfairly dismissed; and (b) subjected to unfair labour practice." Section 186(2) then defines the term:

"'Unfair labour practice' means an unfair act or omission that arises between an employer and an employee involving (a) unfair conduct by the employer relating to the 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; (b) the unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee; (c) a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement; and (d) an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000 (Act 26 of 2000), on account of the employee having made a protected disclosure defined in that Act."

Two features of that wording shape every claim. First, the definition says an unfair labour practice "means" an act or omission involving one of the listed matters, so a grievance outside the four categories does not become an unfair labour practice simply because it is unfair. Second, the conduct must be unfair: the categories identify what can be challenged, not what is automatically wrong.

The Four Categories

1. Promotion, demotion, probation, training and benefits

Section 186(2)(a) covers unfair conduct by the employer relating to five matters. On the plain wording, that includes how an employer runs a promotion process or decides who is promoted, a decision to demote an employee, how probation is handled, decisions about an employee's training, and the provision of benefits to an employee.

Probation has an express exception: disputes about dismissals for a reason relating to probation are excluded, because they are dismissal disputes. The Code of Good Practice: Dismissal says the purpose of probation "is to give the employer an opportunity to evaluate the employee's performance and suitability for employment before confirming the appointment", and that probation "should not be used for purposes not contemplated by this Code, to deprive employees of the status of permanent employment."

The LRA does not define "benefits" in its definitions section. Whether a particular payment or entitlement counts is therefore a question for the commissioner on the facts of each dispute.

2. Unfair suspension and other discipline short of dismissal

Section 186(2)(b) covers "unfair suspension of an employee or any other unfair disciplinary action short of dismissal". On its wording this reaches a suspension, whether precautionary or imposed as a sanction, and disciplinary sanctions such as warnings and final written warnings, which the Code of Good Practice: Dismissal lists among graduated disciplinary measures.

A suspension is not unfair merely because there was no hearing first. In Long v South African Breweries [2019] ZACC 7, the Labour Court held that a three-month precautionary suspension on full pay was not an unfair labour practice, and the Constitutional Court refused leave to appeal on the merits. Our disciplinary hearings and warnings guide explains the test the courts apply.

3. Failure to reinstate or re-employ under an agreement

Section 186(2)(c) covers "a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement." This is the one category aimed at a former employee, and it depends on an agreement: the claim is that the employer did not honour an undertaking to take the person back.

4. Detriment for a protected disclosure

Section 186(2)(d) covers an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act 26 of 2000 on account of the employee having made a protected disclosure as that Act defines it. Dismissal for a protected disclosure is dealt with separately, as an automatically unfair dismissal under section 187.

This category has a different route after conciliation. Section 191(13) lets an employee who alleges an occupational detriment for a protected disclosure refer the dispute to the Labour Court for adjudication.

The 90-Day Deadline

Section 191(1)(b)(ii) of the LRA requires an unfair labour practice dispute to be referred within "90 days of the date of the act or omission which allegedly constitutes the unfair labour practice or, if it is a later date, within 90 days of the date on which the employee became aware of the act or occurrence."

The referral goes to a bargaining council if the parties fall within its registered scope, or otherwise to the CCMA (section 191(1)(a)), and the employee must show that a copy has been served on the employer (section 191(3)). The CCMA referral is made on LRA Form 7.11; our CCMA referral guide explains how to complete and serve it.

In practice, the start date is often the contested point. If you learned of a promotion decision weeks after it was made, the 90 days run from when you became aware of it, so note the date and how you found out.

Condonation for a Late Referral

The 90-day limit is strict, but it is not absolute. Section 191(2) says that if the employee "shows good cause at any time, the council or the Commission may permit the employee to refer the dispute after the relevant time limit" has expired.

Condonation is discretionary, not automatic. You apply for it with the referral and explain why it is late. The earlier you refer, the less you depend on that discretion.

What Happens After Referral

The council or the CCMA must first try to resolve the dispute through conciliation (section 191(4)). If the commissioner certifies the dispute unresolved, or 30 days pass without resolution, the council or the CCMA must arbitrate an unfair labour practice dispute at the employee's request (section 191(5)(a)(iv)). For an unfair labour practice relating to probation, section 191(5A)(b) requires the arbitration to start immediately after the dispute is certified unresolved.

Section 193(4) lets the arbitrator determine the dispute "on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment or compensation." Under section 194(4), compensation "must be just and equitable in all the circumstances, but not more than the equivalent of 12 months' remuneration." That is a ceiling, not a standard award.

How It Differs From Unfair Dismissal

Section 192, which says the employer must prove a dismissal fair once the employee establishes it, is expressly limited to "proceedings concerning any dismissal", so it does not shift the burden to the employer in an unfair labour practice dispute. An employee bringing one should be ready to show why the employer's conduct was unfair.

If you were dismissed, use the dismissal route even if the dismissal followed a string of unfair warnings. Our unfair dismissal guide explains the 30-day process, reinstatement and the compensation limits.

Related Reading

For how warnings, enquiries and suspensions should be handled in the first place, see disciplinary hearings and warnings. For referral mechanics, see the CCMA referral guide. The South Africa labour law section links every guide in this series, and the South Africa Laws hub covers the wider site.

Frequently Asked Questions

What is an unfair labour practice in South Africa?

It is an unfair act or omission by an employer that falls into one of the four categories in section 186(2) of the Labour Relations Act: promotion, demotion, probation, training or benefits; unfair suspension or other disciplinary action short of dismissal; failure to reinstate or re-employ under an agreement; or occupational detriment for making a protected disclosure. A grievance outside those categories is not an unfair labour practice under the Act.

Is being passed over for a promotion an unfair labour practice?

It can be, if the employer's conduct relating to the promotion was unfair. Section 186(2)(a) covers unfair conduct relating to promotion, so a dispute about the process or the decision can be referred. Not getting a promotion is not unfair in itself; the question the commissioner asks is whether the employer acted unfairly.

When does the 90-day period start if I only found out about the decision later?

Section 191(1)(b)(ii) of the Labour Relations Act starts the 90 days on the date of the act or omission, or, if it is later, on the date you became aware of it. Keep a record of when and how you found out, because that date may decide whether your referral is on time.

Can I still refer an unfair labour practice dispute after 90 days?

Only with condonation. Under section 191(2), the CCMA or bargaining council may allow a late referral if you show good cause. You apply for condonation when you refer the dispute and explain the reasons for the delay. There is no automatic extension.

What can an arbitrator order if an unfair labour practice is proved?

Section 193(4) lets the arbitrator determine the dispute on terms the arbitrator considers reasonable, which may include reinstatement, re-employment or compensation. Under section 194(4), compensation must be just and equitable and may not exceed the equivalent of 12 months' remuneration.

Is a dismissal during probation an unfair labour practice?

No. Section 186(2)(a) expressly excludes disputes about dismissals for a reason relating to probation. Those are dismissal disputes with a 30-day referral deadline. Unfair conduct relating to probation that stops short of dismissal falls under the unfair labour practice route, with its 90-day deadline.

Can a former employee bring an unfair labour practice claim?

Yes, in one category. Section 186(2)(c) covers a failure or refusal by an employer to reinstate or re-employ a former employee in terms of any agreement. The other categories are framed around conduct towards an employee.