Promotions

Promotions

Nicolene Erasmus

Many arguments arise in the workplace regarding promotion. Most employees are of the opinion that, because they are already employed by that company, or have a number of years’ experience in the job just below the vacant post, they are entitled to be promoted, or that they are entitled to receive preference above any other applicants.

In Department of Justice v CCMA & others (2004) 13 LAC 1.11.6 it was found that the LRA does not create a right to be promoted. Unless there is some agreement or law giving the employee this right, the employee’s expectation to be promoted constitutes a dispute of “interest”. However, the employer has the obligation in terms of section 186(2) to act fairly towards the employee in the selection and promotion process, but apart from that, it is the prerogative of the employer whom he intends to appoint. In this sense, because section 186(2) gives a legal right to a fair labour practice, a dispute concerning whether the conduct of an employer relating to promotion is an unfair labour practice or not, is a dispute of right and not a dispute of interest, which can be taken to the CCMA or Bargaining Council. This should however not be confused with the fact that there is no right to be promoted, but only a right to be treated fairly in the process of promoting or appointing employees to a position.

This, however, does not negate the normal requirements of recruitment and selection and, very importantly, the requirement of fairness and objectivity. Section 186(2) determines that an “unfair labour practice” is any unfair act or omission 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.

Promotion means an elevation to a higher post, usually with an attendant increase in salary and benefits, and probably an increase in duty and responsibility as well. An elevation in status may also be included. Therefore, the so-called “lateral transfer” is not a promotion.

One must also note that a failure or refusal by the employer to promote an employee into a higher post may constitute an unfair action by the employer. But, if the employer can show that the selection was made fairly, reasonably and lawfully, then there cannot be a dispute of unfair labour practice.

Often, there are several applicants for the post from employees within the organisation and the employer must make a decision, in terms of the requirements of the job, about the necessary qualifications and prior experience. Obviously, when considering the applications from existing employees, the employer will also take into consideration other factors, such as the applicant’s attendance record or disciplinary record, past loyalty to the company and efforts to contribute value to the growth of the company and so on.

Although generally an employer would not be able to measure such criteria when considering an outsider, it would be natural for the employer to consider such criteria for existing employees. The consideration of such criteria would in fact count in favour of internal applicants for the post and it would be ludicrous to suggest that the employer may not consider such factors in his deliberations on deciding who the most suitably qualified applicant for the job is.

But disputes will arise, because all applicants for the job consider themselves to be the best qualified. All applicants consider that they can do the job better than anybody else and therefore the referral of disputes from those applicants or existing employees who were not appointed are inevitable.

In SAMWU obo Mzamo / City of Cape Town (2009) 18 SALGBC 6.9.8, the applicant claimed that the failure of the respondent to short-list him for a second round of interviews was unfair. He had already been found unsuitable for the position in a first round of interviews. The Commissioner found that this was not a placement or promotion dispute but simply a complaint about not being short-listed. He found that there was no reason why the employer would have been obliged to shortlist the applicant for the second round of interviews. The applicant had already been assessed and found to be unsuitable, a decision he failed to challenge. The fact that the applicant had been seconded to the position (for a limited duration with no expectations) could not have created an expectation of being short-listed. The applicant’s quest for promotion came to an end when he was found unsuitable in the first round of interviews, and there was no further obligation on the employer to again shortlist the applicant. The applicant had no claim to a legitimate expectation that he should have been short-listed and his application was dismissed.

In NEHAWU obo Mpondo / Department of Arts & Culture (2009) 18 CCMA 6.6.1 and [2009] 12 BALR 1306 (CCMA), the applicant, applied to the CCMA for the disclosure of the information of the successful incumbent to support his claim of unfair treatment. The employer refused the information on the basis that it is confidential. The Union applied for disclosure of the information in terms of section 16 of the LRA. The commissioner balanced the harm to be suffered by the parties and found that the employee would suffer more as it would be difficult to conduct the case without the information. The employer was ordered to supply the information.

In Prinsloo/ Nelson Mandela Bay Municipality(2008) 17 SALGBC 6.9.3 the applicant acted in a more senior position for 2 and half years and claimed that the employers’ failure to appoint her permanently in this position was unfair. She referred an Unfair Labour Practice dispute to the CCMA under section 186, item 2(a) of the Labour Relations Act 66 of 1995.

The applicant claimed that she expected to be appointed in the more senior position as a result of her acting in the position for more than two years. The commissioner did not agree and indicated that her expectations did not amount to a legitimate expectation and her expectation was no more than an expectation. It was held that the respondent did not act in an unfair manner.

In Swanepoel v Western Region District Council & another [1998] 19 ILJ 1418 (SE) at 1423 G-J) it was stated that acting in a higher position does not confer a right to promotion to that position or grade. “It matters not that the applicant immediate superiors may have been impressed with her diligence, trustworthiness and all-round abilities. Indeed, the applicant’s qualifications and the appropriateness thereof in relation to the job which she applied as well as her competence, were not an issue.

In the instant case, what the applicant refers to as a legitimate expectation is, in fact, no more than an expression of her expectations based, inter alia, on the support and encouragement she received from within the workplace from union members and her immediate superiors alike; the fact that she holds a Diploma in Nature Conservation and the fact that she has, without blemish or complaint, fulfilled certain roles within her field of expertise.

In the race for employment there must, indeed, be few seekers who do not in their own minds, either with or without encouragement of others, form expectations as to their suitability. These expectations are, however not ‘legitimate expectations’ upon which applicant could conceivably rely on relief...”

From the above it is clear that acting a position in itself does not create legitimate expectation of being appointed permanently in that position. Employers are advised to make the terms of acting in a position clear to employees and to reduce such an agreement to writing.

For more information contact advice@labourguide.co.za