Disputes over promotion need to be dissected

Employee dissatisfaction with not getting a promotion is a widespread occurrence in the workplace.

Dissatisfaction also emanates from the grading of a particular job or, especially, grievances concerning the regrading of a job.

Employee perceptions of their job’s grading in comparison with that of their colleagues and the amicable resolving of such a grievance could be a time-consuming and frustrating exercise.

Upwards regrading in itself could mean an improvement in salary and benefits. Obviously the underlying motivation for employees could be a genuine incorrect grading and a well-deserved improvement in salary and benefits.

However, in many instances the employee motivation is based on a subjective perception of having been on the receiving end of an unjust employer action.

Throw some racial and/or gender allegations of unfair discrimination into the melting pot, and the resolution of the grievance becomes much more complex and sensitive.

Where an employee is dissatisfied with a decision not to promote him/her, two potential legal avenues are available.

First, and as set out in section 186(2)(a) of the LRA, an employee could argue that the failure to promote constitutes an unfair labour practice and refer the matter to the CCMA for eventual arbitration.

Alternatively, should an employee allege that his/her non-promotion was due to some form of unfair discrimination, on prohibited grounds contained in section 3 of the Employment Equity Act, the dispute would be dealt with by the Labour Court.

Case law on arbitration and Labour Court decisions dealing with promotion disputes show a wide spectrum of issues used in an endeavour to justify a claim of promotion dissatisfaction. For example, resigning constructively because the situation was so intolerable; a claim that a protective disclosure for fraud, which was never investigated, was the reason for non-promotion; and more traditional claims of being better qualified or experienced.

Disputes concerning promotion could be very complex and a careful analysis of the evidence and legal approach is a prerequisite.

For example, in Maharaj versus CP de Leeuw (Pty) Ltd (2005) 26 ILJ 1088 (LC), a black quantity surveyor was aggrieved by his employer’s decision not to promote him, but, instead, promoted a white male who was less qualified.

An aggrieved Maharaj resigned constructively, a case which is normally dealt with at arbitration. However, the employee also claimed that his dismissal was automatically unfair due to racial discrimination. So, the employee’s constructive dismissal dispute was referred to the Labour Court.

Although the Labour Court, based on the evidence presented, concluded that Maharaj’s constructive dismissal claim had substance, it could not find evidence to determine that racial discrimination existed. As such, the Labour Court did not have jurisdiction and referred the matter back to the CCMA for arbitration concerning the constructive dismissal claim.

In practice, this could have meant an 18-month exercise to finalise the Labour Court process and a further two- to four-month CCMA exercise, whereas a practical evaluation of the evidence available might have dictated following the shorter route of just going the CCMA arbitration route by not also alleging racial discrimination.

Other examples of unfair promotion claims with an unfair discrimination overtone emanate from allegations that employers are not complying with their employment equity commitments.

For example, it was alleged that where an employer had not prepared and implemented an employment equity plan in line with the EE Act, the implication was that if this had been done, the employee, a black person, would have been promoted.

Unfair promotion claims, including unfair discrimination elements, could also emanate from one or a combination of the following:

l Which candidate was the most suitable qualified. Apart from formal qualifications, suitably qualified could also include attributes such as experience, technical knowledge, skills, etc.

l Not meeting the advertised criteria for the job or, as happens frequently, the original criteria are reduced to suit a specific applicant.

l Having been promised a promotion by a superior.

l Having acted in a position and then not being appointed.

This is not an exhaustive list of possible pitfalls pertaining to promotion or selecting employees.

The aim is to sensitise readers to these disputes, which are potentially complex and riddled with subjective perceptions that require dissecting, before merely initiating or merely defending such claims.

l Pierre Marais is managing director of the Labour Law Group. Contact him at 011 679 5944.

Back copies of articles may be obtained from Wanda at 011 679 5944.