The promotion of employees within the workplace environment is a discretion enjoyed by employers to exercise as they see fit. It is generally accepted that the exercise of this discretion by the employer should not be infringed on lightly. In other words, employers should not be told whom they may or may not promote.

The Labour Relations Act (LRA), however, provides that an aggrieved employee may refer an “Unfair Labour Practice” dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) in cases where it is alleged that the employer has exercised this discretion unfairly.

Although the burden of proof in these cases rests on the employee, employers cannot simply attend and expect their actions not to be scrutinised. Arbitrators evaluating the fairness of the employer’s actions cannot simply impose their own decisions on employers as to whom they should or shouldn’t promote. Their function is simply to determine the fairness of the decision made by the employer.

The type of conduct that could result in an “Unfair Labour Practice” dispute include, but are not limited to:

  • Allegations of discriminatory treatment of employees considered for promotion.
  • Allegations of employees being overlooked for promotion for arbitrary or insignificant reasons.
  • Allegations of employers failing to observe agreed policies and procedures.
  • Allegations of employers not adhering to advertised criteria or qualifications.

Although the aggrieved employee may prove that they have been overlooked even though they possess the required qualification or attribute, this will not necessarily be enough to prove an unfair labour practice. More is required. They must show that the employer acted in bad faith or a procedurally unfair manner.

Whether the employer followed a procedurally flawed process is often easily identifiable. Whether the employer acted in bad faith when exercising discretion is more problematic for employees. Regardless, employers should be able to give a reasonable account of the decision they made regarding the promotion of employees.

The Arbitrator will rarely impose their decision on the employer. Instatement of an aggrieved employee into the new position will only be considered if it can be proven that the employer’s decision was manifestly unfair and, for the unfair decision, the aggrieved employee would have been promoted. The Commissioner also has the power to award compensation to the aggrieved employee if it is found that the employer’s decision was not fair.

In cases where a third party may be affected by the outcome of an “Unfair Labour Practice” dispute, such as the employee who was promoted – this person would need to be joined to the process.

It is thus imperative that employers observe their own policies and processes when deciding to promote employees, as other employees are also inevitably affected by this decision. Employers should further exercise their discretion to promote employees fairly and be able to explain why they came to the decision arrived at.

Stephen Kirsten

Provincial Manager  at Consolidated Employers’ Organisation (CEO SA)