Case law and legislation review: recent developments

This months topic deals with some caveats about  the highly emotive issue of promotions.

In the following three cases we explore some of the decisions of the CCMA regarding promotions of employees.

In terms of Schedule 7 item 2(1)(b) of the Labour Relations Act, 66 of 1995 as amended, an employer is guilty of an unfair labour practice relating to the promotion, demotion or training of an employee. Whether the employer has been unfair is an objective test (i.e. not the subjective impressions of the employee), and may include arbitrary, capacious or inconsistent conduct.

Employees have no right to promotion. The conduct of an employer can however be questioned by the CCMA to determine whether the employer's behaviour was unfair. The unfairness may be either substantive or procedural.

++ Examples of substantive fairness:
The case law indicates that the CCMA is reluctant to step into the shoes of the employer and determining on its behalf whether an employee is more suited than another applicant. Decisions to appoint are often based on the performance of an employee during an interview. The CCMA may also request an employer to provide reasons for its decision to appoint or not appoint an employee.

++ Examples of procedural fairness:
Generally an employer must follow its own procedures. If an employer advetises positions it cannot simply deviate from this practice without good reason. An employee acting in a position is not automatically entitled to permanent appointment to that position, provided, at least, the employee is heard before a final decision is made.

# S Marra and Telkom SA Ltd
Commissioner: S H Christie
Case No.: WE14351

Marra's complaint is that Telkom committed an Unfair Labour Practice ("ULP") in terms  of Schedule 7 item 3(4)(b) because it graded him unfairly and inconsistently and refused to remedy this. He seeks an order that the employer upgrade him with  retrospective effect. Marra testified that his grading was not fair because his work performance and abilities were not properly assessed. Alternatively, he had been unfairly barred from acquiring the necessary skills because his manager(s) blocked him. He explained that, at least on paper, management had for many years declared itself in favour of comprehensive staff development. One of the ways this could be done was to rotate staff between departments to expose them to different technologies, equipment and learning opportunities. Despite this apparent commitment, he and others were not rotated and this effectively barred
upward mobility. Nevertheless by dint of his own initiative he got some chance in 1995 to work on fibre optic projects. As a consequence he acquired demonstrable skills and these, with his work output, justified re-evaluation and upgrading. It is common cause that the Telkom system of job evaluation evaluated actual work performed by an employee who is evaluated, not an employee's capacity. Marra led no evidence nor did he argue that this system was unfair. His version was first, that management's failure to expose him to optic maintenance was unfair because this barred his progress. Secondly, he testified that his work had been undervalued on the following indicators: innovation, complex volumes, workflow planning and quality complex.

Held:
The basis of Marra's claim is erroneous: Human beings, of course, have a personal interest in their own career and individual development and it goes without saying that employers must respect their employees. But, employees' personal interests need to be consistent with the needs of the enterprise, not as objectively determined in a perfect corporation, but as determined by those who have the legitimate power to manage the enterprise.

Employees often discover that their personal interests or wants are not catered for in the work place: they may be afforded limited opportunity for promotion or other personal development. Ambitious employees often demonstrate their disappointment by resigning and seeking opportunities elsewhere.

It is not the job of labour law to interfere in the management style of an enterprise except on specific grounds. These include that it is manifestly arbitrary, unfairly discriminates or victimizes staff for union affiliation (or legitimate union activities). [The union could have exercised its own legitimate interests in its members' development by negotiating a collective agreement on human resource management, but this is not the basis of the claim.]

I accept, without deciding, that Telkom may have lacked innovation and creativity in the way it developed or even deployed its staff. It may also be that an enterprise which does not develop its staff will not succeed. It does not however follow that an enterprise which does not use its human resources wisely, commits an unfair labour practice, within the meaning of the Act. I find that Marra has not discharged the onus of proving that the evaluation system or its implementation amounted to an unfair labour practice.

# Promotion Legitimate Expectation – Fair procedure and reasons for non-appointment:
PSA obo Bruwer v Department of Justice (WE16272)
Comm. Galant

Whether failure to promote applicant was unfair? Whether commissioner considering whether promotion was unfair, is confined to the procedure followed or also need to take account of the justifiability of reasons provided? Position was advertised twice, none of candidates appointed. Applicant had formal qualifications required, was considered promotable, yet
found ‘not suitable’ for post. Position was filled on a temporary (contract) basis by person not in possession of the required formal qualifications.

Held: Constitutional provisions regarding fair administrative action broadens the scope of judicial review of administrative action. As held in Carephone, both procedure and the justifiability of the reasons given, should be examined. In this case, no legitimate expectation was created. Being a candidate and being shortlisted does not create expectation of appointment in the absence of something" additional being done by employer. Commissioner unable to examine whether reasons for decision reasonable, as the Minister failed to provide his reasons.

Held: An ULP was committed on three grounds: failure by Dept to adhere to its own criteria for the appointment; failure to follow its own prescripts in making the contract appointment; and failure to provide reasons for administrative action. Compensation awarded

# Promotion: Unfair Labour Practice -
EC3223 SKWATSHA v DEPARTMENT OF EDUCATION
Commissioner: Mr Vermaak
Case No.: EC3223

This was an unfair labour practice dispute, on the basis that the employee had applied for numerous promotion posts, and had never received adequate feedback from the department about these applications. The one occasion he did receive acknowledgment of receipt of an application, he found that it was for posts he had not applied for. The employee was later called in for
an interview, but upon investigation, found that the post in question was the one he occupied at the time. The Commissioner found that the employer had committed an unfair labour practice, and ordered that the employee should inform the department of all posts he had applied for, and the department was to provide feedback in terms of:
* minimum requirements for the posts;
* whether the posts had been filled;
* names, qualifications and experience of the people who had been appointed
to those posts;
* process followed in appointing those people;
* reasons why the employee had not been appointed; and
* whether the department’s affirmative action requirements had been complied with.