THE UNFAIR LABOUR PRACTICE: PROMOTION - PUZZLES AND CONCERNS

“The progress of the law relating to unfair labour practices has been torturous and rendered a body of jurisprudence that is complex and confusing. Recent developments have rendered it unnecessary to rehearse that in this article”

[Publication by Anton Myburgh SC & Craig Bosch “Reviews in the Labour Courts”[1]]

[1] (2016) LexisNexis, 385].

PURPOSE OF THIS ARTICLE

In order to share this article, some background facts will have to be disclosed. The artistic inspiration for the drafting hereof emerged after my colleague and trusted friend, attorney Nakedi Charles Machaka and I decided to take a well-deserved rest after a hectic day.

Seated under the protection of a Lapa [a small wooden hut shelter] situated at the back of our offices we relaxed, only for a few minutes. Suffice it to mention in passing that whilst sipping a very good red wine the intricacies of the Unfair Labour Practice as stipulated in the Labour Relations Act 66 of 1995 (as amended) (the LRA) s186 (2) (a), to wit unfair conduct by the employer relating to promotion, became the subject matter of discussion.

During the intense debate, we agreed that it would appear that the Unfair Labour Practice (ULP) gained popularity as a cause of action in matters that have been referred for dispute resolution albeit to the CCMA, or bargaining councils.

The question that arose concerned the reasons for the rise in popularity of the ULP as a cause of action. We have elected to attempt to provide reasons for the surge in ULP disputes hereunder.

Before dealing with the statutory definition of a ULP as codified in South African labour legislation the quote cited above by Myburgh SC et al is relevant insofar as it makes reference to the complexities, technicalities and confusing nature of the ULP jurisprudence.

It has therefore been elected by the author to confine this article to one of the ULP’s listed in s186 (2) of the LRA namely unfair conduct by the employer relating to promotion.

The intention is to draft follow up articles as to questions pertaining to the other ULP’s that are listed in s186 (2). The writing of the intended follow up articles will depend on and subject to the health of the author as well as other considerations.

Allow me the opportunity to mention the observations by the esteemed jurist and academic, George J. Gliaudys Jr -1st Chair of the Board of Trustees of Westcliff University, USA:

"As always, the article is well-researched and grounded in a writing style that is understandable to anyone interested in learning about the subject matter. As any marketing person knows, the value of a product largely depends on its scarcity while demand is high. So too, for promotions - there are only so many positions at the top of any ladder - be it shorter or taller - and so the scramble is on to reach that highest rung by crook or by hook providing the grist for law practitioners in the courts or in arbitration forums to sort out the complaints of those who did not get the top rung."

LEGISLATIVE PROVISIONS

“Section 186(2) (a) of the Labour Relations Act, 66 of 1995 (LRA) provides that the unfair conduct of an employer – “… relating to the promotion, [emphasis added], demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee …” constitutes an unfair labour practice.”

The first question that comes to mind is ‘What is a promotion?’ as envisaged by the legislature in s186 (2) (a) above.

In Mashegoane v University of the North[1] the Court defined promotion as being elevated or appointed in a position that carries greater authority and status than the current position the employee is in.

Of clarification is that the Court held in Sukhdeo v Department of Welfare & Population Development, KZN[2] that a dispute concerning a notch increase within the same post does not constitute a dispute about ‘promotion.’ Promotions are usually accompanied by an increase in remuneration or benefits.

In SAMWU obo Damon v Cape Metropolitan Council[3] it was held that [u]nless the appointing authority was shown to have not applied its mind in the selection of the successful candidate, the CCMA may not interfere with the prerogative of the employer to appoint whom it considers the best candidate.

In Van Rensburg v Northern Cape Provincial Administration[4] it was held that interference in the employer’s decision is justified only where its conduct ‘so grossly unreasonable as to warrant interference that they failed to apply their mind.’

A failure to promote can be challenged with reference to the procedure adopted in promoting the successful candidate and the reasons for failing an applicant. The relevant principles were set out by Cheadle AJ in South African Police Service.[5]

Firstly, there is no right or entitlement to promotion in the ordinary course.[6] The exception is where there is a contractual or statutory right to promotion.[7]

According to Cheadle AJ it is not necessary for the applicant to show that she had the right to be promoted as opposed that the employer’s conduct in relation to promotion was unfair.[8] Any conduct that denies the employee a fair opportunity to compete for a post constitutes a ULP.[9]

SUMMARY OF THE LAW AS DISCUSSED ABOVE

1. A promotion entails moving an existing employee to a position with greater status, responsibility, authority, and increase in remuneration and benefits.

 2. Promotion does not constitute a raise in notch increase in a similar post.[10]

3.  Similarly, a claim to have a post upgraded is a dispute of interest and not a dispute of right and therefore does not fall within the scope of a promotion which is a dispute of right.

 4. There is no right to a promotion in the ordinary course. The exception is where the right arises ex contractu or ex lege.

EXAMPLES OF REVIEW OF ARBITRATOR’S AWARDS

1. Arbitrator’s failure to provide grounds for accepting the better candidate without providing reasons for the decision. [11]

2. Arbitrator failed to determine whether the employer acted unfairly as opposed to whether the employer complied with its own procedure.[12]

3.  Arbitrator assumed that recommendation by the School Governing Body afforded the applicant a preferential right to promotion, without competing with other applicants in interviews in accordance with a collective agreement.[13]

 4. Arbitrator failed to note that the successful applicant failed to meet the requirements of the post and should not have been shortlisted.[14]

5.  Arbitrator awarded “protected promotion” where post no longer existed and as a consequence, nobody benefitted from the applicant’s alleged unfair treatment. [What this means is that employees are appointed to the same grade as the post in question, and the employer must pay them at the applicable rate attached to that grade, whether or not they are actually promoted].

 6.  Arbitrator ordered ‘protected promotion’ where there was only evidence of procedural unfairness.[15]

WHEN CAN AN ARBITRATOR INTERFERE WITH A PROMOTION?

The Labour Court succinctly answered the above question in the often referred judgment Arries v CCMA & Others[16]

1. There are limited grounds on which an Arbitrator or the Courts may interfere with a discretion exercised by a party competent to exercise that discretion.

2. The reason: the ambit of the decision-making process inherent in the exercising of discretion of a party, including the exercise of the managerial prerogative of an employer ought not to be curtailed. It ought not to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised.

3. In Arries the Court held further that an employee can only succeed in having an exercise of a discretion of an employer interfered with if it could be demonstrated that the discretion was capriciously, or for unsubstantiated reasons, or based upon any wrong principle in a biased manner.

In Case Law for CCMA Commissioners at paragraph 1804 it was suggested that it was arguable that promotions should be assessed, not according to the grossly unreasonable/male fide test referred to in Arries, but against a test of fairness taking into account inter alia the following factors referred to in Arries:

- whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the employer;

 -   whether the employer’s decision was arbitrary, or capricious, or unfair; or

 -   whether the employer failed to apply its mind to the promotion of the employee;

 -   whether the employer’s decision not to promote was motivated by bad faith;

-   whether the employer’s decision not to promote it was discriminatory;

-    whether there were insubstantial reasons for the employer’s decision not to  promote;

-    whether the employer’s decision not to promote was based upon a wrong principle;

 - whether the employer’s decision not to promote was taken in a biased manner.

That the overall test is one of fairness has now been confirmed in the case under discussion. The Constitutional Court followed Gcaba v Minister for Safety & Security & others[17] and found that that a failure to promote which had no direct consequences for other citizens were not administrative action subject to the review test of unreasonableness:

“[13]   The wholesale adoption of review tests, and notions of ‘setting aside’ an employer’s decision and sending it back to the employer for decision anew, thus appears misplaced. Rather the yardstick of fairness to both parties…is in fact apposite. This does not mean that when a selection process is unreasonable, it should not be identified as such, but that such irrationality goes to the issue of fairness. The clear wording of s 186 (2) of the LRA supports such an approach…

[14]     In this matter the fairness yardstick… has been used by the commissioner. He has found that in a situation where the applicant’s post (In which he had been acting for five years) remained vacant after his non-appointment, and where the city did not proffer any rationale for the pass mark in respect of the written assignment, nor explain the method of allocation of marks, it had been unfair not to appoint him.”

Of edification is the observations by the acclaimed author Grogan J[18], who in reference to various case law, observes as follows:

“It is not enough for an employee who complains of unfair conduct in relation to promotion simply to allege and prove that he or she was better qualified or more ‘suitable’ than the successful candidate[19]. The courts have warned that arbitrators are not permitted to impose their own decisions on employers with regard to whom to promote. They may interfere only if the employer acted procedurally unfair…..”

STATUTORY REMEDIES – UNFAIR LABOUR PRACTICE

Section 194 of the LRA stipulates:

“…the compensation awarded…must be just and equitable in all the circumstances, but not more than 12 months remuneration.” Emphasis added].

“Remuneration” is defined in s213 of the LRA, “means any payment in money or in kind, or both in money and kind made or owing to any person, in return for that person working for any person, including the State…”

It can be argued that s194 (4) of the LRA is empowering. It delineates a set of remedial powers that the Court and Arbitrators can order, however, limited to 12 month’s remuneration.

In the matter, Tshishonga v Minister of Justice & Constitutional Development[20] the LAC held that s194 refers to” remuneration” purely as a means of capping the amount of compensation that may be awarded and not as a basis of quantifying the award.

The decision to promote is an exercise of employer discretion and the Arbitrator should defer to the employer’s decision.

It may be that the decision to promote someone may be set aside and the employer ordered to conduct a fresh exercise. This is particularly appropriate in public sector matters. See Dumisa v University of Westville[21]

In instances where the decision not to promote was valid and fair, Beukes v SA Post Office the appointment in accordance with a fair procedure, the only remedy would be a process violation, as was the case in Beukes v SA Post Office[22]

In an interesting case before the Labour Court Coetzer & others v The Minister of Security & Another[23] the Labour Court ordered the applicants to be promoted. In another interesting matter before the LAC, the successful applicant failed[24] to disclose that he had a previous disciplinary infraction which may lead to unfairness. The LAC held that there was no disclosure to a third party at all.

Secondly, was that the National Commissioner condoned to disclose after the appointment was made. Thirdly, was that it downplays the value of the process and lends support to possible dishonest practices. Fourthly, it devaluates the role of the selection panel and more importantly it prejudiced the Appellant as he would possibly have been ranked first on the list of recommendations.

The LAC held that the non-disclosure of the employee and the condonation thereof even after his appointment as manifestly unfair.

The above constitute examples of the nature of promotion disputes that adjudicators have to determine.

CONCLUDING REMARKS

The reader of this article will in all probability agree that the law as regards ULP’s in relation to promotion is technical and complex.

Over the last few months, my colleague and I attended to a considerable number of arbitrations as regards ULP disputes in relation to promotion. It is clear that the number of referrals of ULP disputes seems to be on the increase.

A further matter of concern as to the legislative attractiveness of the ULP could be summarised as follows:

 1.  ULP disputes in relation to promotion are referred for adjudication under the cloak of “disputes of right” however, these disputes are in substance matters of “mutual interest” which are not justiciable.

 2.   Of further concern is that some of the disputes do not qualify as a “dispute” in terms of the definition contained in s213 of the LRA, and are merely allegations of wrongdoing by the employer or grievances.

3.  Upon perusal of the wording contained in the dispute referral form many have been defined and summarised by the referring party by using the same wording as if it has been “copied and pasted.” 

4.  Rulings by Commissioners as to the necessity to hold pre-arbitration conferences are ignored which lead to further delays in finalising disputes.

It is suggested that Commissioners make use of their powers to order punitive costs awards against a party that delay or frustrate the effective resolution of labour disputes.

Johann Scheepers

2020/03/24

 [1] [1998] 1 BLLR 73 (LC).

[2] [2006] 5 BALR 525 (PHWSBC).

[3] (1999) ILJ 142 CCMA at 718B.

[4] (1997) 18 ILJ 1421 (CCMA) at 1426F.

[5] SAPS v SSSBC & Others [2016] JOL 35883 (LC).

[6] Ngcobo v Standard Bank of SA and others (D439/12) LAC.

[7] SAPS v SSSBC & others [2016] JOL 35883 (LC) para 19.

[8] Apollo Tyres SA (Pty) Ltd v CCMA & others (2010) 34 ILJ 1120 (LAC).

[9] SAPS v SSSBC & others [2016] JOL 35883 (LC) para 41.3.

[10] Sukhdeo v Department of Welfare & Population Development, KZN 5 BALR 525 (PHWSBC).

[11] SAPS v SSSBC & others [2016] JOL 35883 (LC) 1656A-B.

[12] De Nyschen v GPSSBC & others (2007) 28 ILJ 375 (LC) 380.

[13] Head of Department of Education v Mofokeng & others [2015] 1 BALLR (LAC) 61-62.

[14] Swarts v National Commissioner of SAPS and others (0915/13) [2013] ZALCD.

[15] Kwa Dukiya Municipality v SALGB (2009) ILJ 356 (LC).

[16] (2006) 27 ILJ 234 (LC).

[17] (2010) 31 ILJ 296 (CC).

[18] Workplace Law (2014) 10th edition Juta page 63.

[19] See Collen v Distell (Pty) Ltd [2001] 8 BALR 834 (CCMA); Woolworths (Pty) Ltd v Whitehead (2000) 21 ILJ 571 (LAC).

[20] [2009 9 BLLR 862 (LAC).

[21] (2001) 7 BLLR 753 (CCMA).

[22] (2002) 11 CCMA 6.9.5.

[23] [2002] 11 LC 6.9.2. 

[24] [2012] 33 ILJ 2597 (LAC).

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The content of this article is intended to be general in substance and nature; to provide commentary on contemporary issues and where appropriate constitutes a general guide to the subject matter. Specialist advice should be sought about the reader’s specific circumstances.

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