PROMOTIONS AND NON-APPOINTMENT DISPUTES: A ROUND-UP OF CASES

We have seen a steady stream of promotion or, more accurately, non-promotion cases here on IR Network as employees challenge their employers’ decisions not to promote them. In this regard, recent decisions have included numerous CCMA and bargaining council arbitration awards and even decisions of the Labour Court and Labour Appeal Court.
The difference between non-appointment and non-promotion
The first important issue is the question of whether the employer’s decision in respect of a certain post relates to a non-appointment or a non-promotion. This issue was raised in the recent decision of the Labour Appeal Court in Department of Justice v CCMA (2004) 13 LAC 1.11.6. (also reported under [2004] 4 BLLR 297 (LAC)). The Department of Justice advertised (internally and externally) the post of Chief State Law Advisor. Requirements for the post included admission as an advocate and the possession of an LLB degree. From the many applications, a shortlist of four candidates was drawn up. After interviewing these four applicants, the selection committee stated that it was not in a position to recommend any one candidate for appointment to the post. The post was advertised again and the entire process was repeated; eventually, one candidate was appointed for a fixed term of 12 months. But one of the present State Law Advisors was aggrieved by this fixed-term appointment; he was of the view that he complied with the requirements. From the perspective of this aggrieved employee, of course, the issue in dispute was the fact that the employer had not promoted him.
The issue was referred to the CCMA and the commissioner not only held that the CCMA had jurisdiction, but also that the Department had committed an unfair labour practice. The Department then applied in the Labour Court for an order setting aside the CCMA award. The Labour Court dismissed this review application, but it did set aside that part of the CCMA award that ordered the Department to pay the aggrieved employee a considerable sum of money.
On appeal, the first issue raised was that of jurisdiction — whether the CCMA, acting in terms of the unfair labour practice definition, had the power to hear the matter (at the time, unfair labour practices were regulated in Schedule 7 of the Labour Relations Act; they now appear in section 186 of the Act). One of the arguments raised by the Department was that the dispute did not relate to promotion at all, but that it related to the appointment or filling of a post instead.
On this point, the Labour Appeal Court held that the decision not to appoint the employee to the post amounted to a decision not to promote him, and that this decision fell within the ambit of the unfair labour practice decision. However, at the same time, if someone from outside the organisation (who is not an ‘employee’ for the purposes of the definition of the unfair labour practice definition, of course), was not appointed, that non-appointment did not constitute a dispute about a promotion. An applicant who has not been appointed can dispute the employer’s decision on the basis of non-promotion:
‘That difference arises from the fact that each one of the two candidates has a different relationship with the decision – maker in this regard. The one is an employee of the decision-maker whereas the other has no existing employment relationship with the decision-maker.’ (see paragraph [58] of the judgment).
A long and complicated judgment, but still an important one in the context of disputes about the employer’s decision not to promote an employee. The Labour Appeal Court expressly approved of the approach taken in Mashegoane & another v The University of the North (1997) 2 LC 1.1.93.
As far as the merits of the case were concerned, the fact that the Department had not, at the relevant point in time, filled the post on a permanent basis was found to be decisive by the Labour Appeal Court:
‘In an unfair dismissal case the employee must first establish the fact of a dismissal before there can be any inquiry into whether the dismissal was unfair. If he fails to prove a dismissal, that is the end of the matter. The same applies to a matter such as this one. An employee who complains that the employer’s decision or conduct in not appointing him constitutes an unfair labour practice must first establish the existence of such decision or conduct. If that decision or conduct is not established, that is the end of the matter. If that decision or conduct is proved, the inquiry into whether the conduct was unfair can then follow. This is not one of those cases such as disputes relating to unfair discrimination and disputes relating to freedom of association where if the employees proves the conduct complained of, the legislation then requires the employer to prove that such conduct was fair or lawful and, if he cannot prove that, unfairness is established. In cases where that is intended to be the case, legislation has said so clearly. In respect of item 2(l)(b) matters, the Act does not say so because it was not intended to be so.’ (paragraph [73]).
Legitimate expectations
If an employee has an expectation of being promoted to a certain post, of course, it becomes more probable that he or she will dispute the employer’s decision if the decision is not in his or her favour. This often happens in the context of an employee’s acting, sometimes for an extended period, in a higher position, only to find that someone else is promoted or appointed to that position.
In Communications Workers Union and others / South African Post Office (2004) 13 CCMA 6.9.4 the applicant employees had been requested to act in certain positions for almost then years. Some of these positions were subsequently advertised, but of the ten employees who had acted in these positions, only four were appointed. One of the issues that arose is whether these employees had a legitimate expectation that they would be appointed to these positions.
For the CCMA commissioner, this did not constitute a dispute about promotion, but a dispute about the employer’s failure to appoint the applicant employees to these positions. The commissioner concluded that the employees were indeed reasonably entitled to expect that they would be appointed to the positions, or, at the very least, that they would be accorded preferential treatment. The factors the commissioner took into account included the unreasonably long period the applicants served in their acting capacity, the failure of the employer to adhere to a rotation policy and the praises the employees received while they were acting in the positions. Their experience, their qualifications and the fact that they met the requirements for the posts were also relevant.
The employer argued that only the employees themselves had this expectation in their minds, and that it was therefore a purely subjective expectation. That may be so, said the commissioner, but this expectation was to a significant extent reinforced by the employer through its actions and inactions.
The issue of legitimate expectations also arose in Gurarnah / South African Weather Services (2004) 13 CCMA 6.9.1. The employee applied for a higher position knowing full well that she did not have the necessary experience for the job. However, she claimed, at the CCMA, that she had a real and legitimate expectation, based on factors including the fact that she had been invited to be part of a mentoring programme, academic strudies that she had completed on her own and by means of the employer’s bursary scheme and her ability to carry out the job functions of the position she aspired to. On the facts, the CCMA commissioner held that the employee was not entitled to any relief.
Processes and procedures
In some of the new cases and awards, the procedures and processes followed by the employer were flawed. In Meyer / South African Police Service (2003) 12 SSSBC 6.9.15 the employee applied for advertised posts, but his evaluation mark (accorded to him by his commanding officer) had been reduced by 21% — without him having been given an opportunity to make representations or to be heard. This lowering prejudiced the employee’s promotion opportunities on more than one occasion, and the bargaining council arbitrator ordered the payment of compensation. Interestingly enough, the arbitrator did not order the payment of a year’s salary, as requested by the employee, but ordered the payment of the difference between the employee’s present salary and what he would have earned if he had been promoted.
It is now clear that arbitrators and CCMA commissioners can (and will) consider the conduct of the selection, appointment or promotion process, and that it will scrutinise the actions or omissions of the employer and the selection committee with some care. In Coetzee / South African Police Service (2003) 12 SSSBC 6.9.12 the way the selection committee reached its decision, the factors it took into account (and the factors it failed to take into account) were analysed in detail, and the arbitrator concluded that the decision of the selection committee to appoint someone else to the post was unreasonable and irrational and, because it disregarded the objective standards of the criteria applicable to the post, it was both substantively and procedurally unfair.
The realities of promotion
In virtually all cases, disputes about promotion or non-appointment to a post are highly emotionally charged disputes as the employee concerned may be experiencing considerable disappointment, and sometimes justified fury, at the conduct of the employer and its managers or officials. In spite of the emotions, however, these kinds of disputes remain factual disputes, sometimes becoming extremely complex evaluations of the employer’s conduct, its policies, procedures and documents (see, for example, Basson / South African Police Services (2004) 13 SSSBC 6.9.1). Employers need to deal with promotion and related differences and disputes with some care, knowing that a CCMA commissioner or a bargaining council arbitrator can, and will, scrutinise the employer’s conduct in painstaking detail. Promotions need to be handled in a substantively and procedurally fair manner, itself enough of a challenge. If considerations such as the employee’s legitimate expectation enters into the picture, the matter rapidly becomes more complicated and, in the end, neither the employee nor the employer may be the real ‘winner’.