Disputes relating to promotional disputes are covered by unfair labour practices as defined in the Labour Relations Act 66 of 1995 (as amended) (“the Act”). Section 186(2) of the Act sets out the grounds of various categories of unfair labour practices, including that of unfair labour practices which relate to promotion. An unfair labour practice can be any unfair conduct by an employer directed towards the employee, which falls short of dismissal. Disputes relating to promotion is one that frequently occurs within the context of the workplace.
What constitutes a promotion
An employee generally has no legal entitlement to be promoted; however, in the event of an assurance of some sort, an expectation to be promoted can be created by the conduct or omission of the employer. For example; an employer creates an assurance by promising an employee that promotion is imminent if the employee continues to perform well or an employee is tasked work of a higher grade position when the employee is currently in a lower grade position and the employer assures such employee that the higher grade tasks will lead to promotion to the higher grade. Such conduct by the employer may invoke a reasonable expectation that the employee will be promoted.
The Prerogative of The Employer
Employers have the prerogative to conduct procedures for acquiring suitable candidates, whether for an appointment or promotion. Unless gross unfairness or mala fide conduct on the part of the employer can be proved by the employee, the employer has the prerogative to appoint and promote employees as it sees fit. An example of gross unfairness would be a promotion or appointment based on discrimination.
Who bears the onus of proving an Unfair Labour Practice Relating to Promotion?
In disputes relating to unfair labour practice relating to promotion, the employee bears the onus of proof on a balance of probabilities. For an employee to succeed the employee must prove one of the following:
- The employer exercised its discretion capriciously,
- The reasons provided for the non-promotion cannot be substantiated,
- The decision taken was on the wrong principle,
- The decision made was in a biased manner.
For an employee to be successful in a promotional dispute, the employee must show that there was an unfair labour practice relating to a promotion. First and foremost, it must be proved that a promotion has taken place (another employee has been promoted). Secondly, for an employee to succeed, the employee must prove substantive or procedural unfairness in respect of the non-promotion. However, even if the decision was unfair on some degree it will not necessarily mean that an arbitrator or a court will interfere with the employer’s prerogative for other lawful reasons.This position was confirmed in U.P Chetty v Head of Department of Education and Others, PSES 658-0910 KZN (“The Case”).
Substantive and Procedural Unfairness Explained
As indicated above the employee has the onus of proving unfairness. Substantive unfairness refers to the suitability of the candidates by considering their CVs, assessments and past work experience and all other factors relevant to the reasoning for suitability purposes. As indicated in the above case, it has long been accepted that superior qualifications do not necessarily constitute a good reason for appointment or promotion. Procedural unfairness, on the other hand, refers to the process followed in conducting the process of appointment or promotion. Last mentioned refers to, amongst other aspects, the process of shortlisting, interviewing and assessing.
The above serves as basic guidelines to aggrieved employees who feel they have been subjected to unfair labour practices by an employer in respect of a promotional dispute. If an employee feels they have been subjected to an unfair labour practice the employee has 90 (ninety) days from the date the unfair labour practice occurred to refer an unfair labour practice dispute relating to promotion to the CCMA or relevant Bargaining Council.