"You should have promoted me." These words often echo the feelings of a frustrated employee, who feels that they deserved to be promoted or appointed to a vacant post, either because they have worked for the employer for a long time or because they possess the required qualifications. It is within this context that we consider the legal position in relation to promotions in terms of the Labour Relations Act 66 of 1995 (LRA).
Definition of promotion
Promotion has been defined in Mashegoane & another v The University of the North Page 10 of  JOL 1836 (W) to reflect the New Shorter Oxford English Dictionary meaning "advance or raise to a higher rank or position".
Labour Relations Act
Where an employer acts unfairly with regard to promotions, the conduct of the employer may amount to unfair labour practice. Accordingly, we must consider section 186(2)(a) of the LRA which reads:
"Unfair labour practice means any unfair act or omission that arises between an employer and an employee, involving unfair conduct by the employer relating to promotion…."
The LRA does not expressly determine what constitutes an unfair labour practice in relation to promotions; this determination is found in case law. Although existing case law provides guidelines on how to deal with promotions, every case must be considered on its own facts.
Where an employee alleges that the employer's failure to promote or appoint them amounts to an unfair labour practice, the employee must first establish a decision not to promote him/her (Department of Justice v Commission for Conciliation, Mediation and Arbitration and Others (2004) 25 ILJ 248 (LAC) at 73). Without the existence of a decision not to promote, there can be no further inquiry as to fairness thereof.
Promotions must be considered in light of the case of Apollo Tyres South Africa (Pty) v CCMA and Others (2013) 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 qualifications, or attributes, required for the job, while the person who was appointed does not possess them. The employee may also allege that the employer is unable to provide an explanation as to why they were not promoted (John Grogan Workplace Law 10th edition (2014)).
It should be noted, however, because it is the prerogative of the employer to appoint and promote who he sees fit for the position, the fact that another employee is more qualified does not constitute an unfair labour practice.
Prerogative of the employer
The prerogative or discretion of the employer must always be taken into consideration (George v Liberty Life Association of Africa Ltd (1996)17 ILJ 871 (LC)), and courts should not intervene in the matter unless an element of bad faith or procedural unfairness exits.
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 reason for protecting the prerogative of the employer is to avoid the impracticality of allowing the courts to pass judgment on how the employer should make appointments or run their business. This would result in the courts, not the employers appointing the employees into roles within businesses that are perhaps not completely understood by such courts.
A decision not to promote may be procedurally or substantively unfair. In the event that the decision is procedurally unfair the court may direct the employer to remedy the irregularities. Where the decision is found to be substantively unfair the court may order that the employer appoints or promote the employee.
In conclusion, there are no guarantees of promotion and 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 published in Without Prejudice in July 2016.