“I have been with the company longer”, “I am the better candidate”, “You should have promoted me” are some of the well-known phrases often voiced by an employee, who feels that they deserved to be promoted either because they have worked for the employer for a longer or because they possess the required qualifications.
Employees often believe that because they have been employed by the company or have valuable years of experience in the job that once a position becomes vacant, they are entitled to be promoted, or that they are entitled to receive preferential treatment above other candidates seeking the promotion. An employer may promote or appoint individuals as it deems fit. The question which arises is, what recourse do disgruntled staff have at their disposal, who wish to challenge the appointment or promotion of another within the workplace?
Disputes relating to promotional disputes are defined as unfair labour practices as in terms of the Labour Relations Act 66 of 1995. Section 186(2)(a) of the Act defines an unfair labour practice as any unfair conduct by an employer directed towards the employee, which falls short of dismissal. A promotion is considered to be an advancement or raise to a higher position or rank, usually associated with an increase in salary or benefits. An employee generally has no legal entitlement to be promoted; however, in the event of assurance of some sort, an expectation to be promoted can be created by the conduct or omission of the employer, thus resulting in an expectation of the said promotion.
In Prinsloo vs Nelson Mandela Bay Municipality  17 SALGBC the applicant acted in a more senior position for two and half years and claimed that the employers’ failure to appoint her permanently in this position was unfair. The applicant referred an unfair labour practice dispute to the CCMA under section 186 2(a) whereby the applicant claimed that she expected to be appointed in the more senior position since she had been acting in the position for more than two years. The commissioner disagreed and indicated that her rationale for the promotion did not amount to a legitimate expectation and her expectation. It was held that the respondent did not act unfairly.
From the above, it is clear that acting in a position for a period of time in itself does not create a legitimate expectation of being appointed permanently in that position. Employers are, therefore, advised to ensure that the terms of the acting position are clearly communicated to the employee/s, and the same is reduced in writing to avoid any unnecessary expectation of being promoted.
In Department of Justice v CCMA & others  13 LAC it was found that the LRA does not create a right to be promoted unless some agreement or statutory law is 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 and furthermore, the employers’ obligations to provide the justifications for such appointments made.
Promotions should be considered in light of the case of Apollo Tyres South Africa (Pty) v CCMA and Others  34 ILJ 1120 (LAC) where the court held that an employee who alleges a case of unfair labour practice relating to a promotion does not need to prove that he has a right to promotion. However, the employee still bears the onus of proving that the decision of the employer not to promote him is unfair.
In proving unfairness, the employee may allege that they have the necessary skills or better qualifications and attributes required for the position, while the person who was appointed does not possess the same. The employee may also allege that the employer is unable to explain as to why they were not promoted. It should be noted, that because it remains the prerogative of the employer to appoint and promote who he/she sees fit for the position at hand, the fact that another employee is more qualified does not constitute an unfair labour practice.
In George v Liberty Life Association of Africa Ltd  17 ILJ 871 (LC), it was determined that the courts should not intervene in cases relating to promotions unless an element of bad faith or procedural unfairness exists. The enquiry is not whether or not the employer appointed the right candidate as perceived by the employee or the courts. The enquiry is rather whether the employer acted procedurally and substantively fairly when reaching his decision. Substantive fairness may include, inter alia, instances of bad faith or discrimination.
The courts cannot play the role of the employer. The courts may, however, play a supervisory role and test the fairness of the conduct of the employer in deciding whether or not to promote the employee and grant the appropriate remedy in the circumstances. As indicated above, the employee has the onus of proving unfairness. Employees’ successful in claiming that their employed committed an unfair labour practice may be entitled to up to 12 months’ remuneration or such relief as the commissioner may deem fit. External applicants for employment may receive wide-ranging relief from the labour court, including damages.
Unlike the LRA, the EEA does not cap the employer’s liability. Unfair discrimination in selecting the right person for the post could thus be a costly affair. It is, therefore, advisable that when dealing with the issue of promotions that employers use a transparent approach to give candidates clarity on expectations as well as avoid hindrances that may arise through ambiguity. Should unsuccessful candidates seek clarity related to being passed up for the position, the employer should provide the same to the employee.
Article by: Preshalia Pandaram
Dispute Resolution Official – Pretoria