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DOES an employee have a legitimate expectation to a promotion?
The question relating to the promotion of an employee often arises in the workplace, but there is not much understanding of the legal implications surrounding an employer's decision to promote or not to promote an employee.
The Labour Relations Act (LRA) provides that an "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 relevant section makes it clear that when an employer acts unfairly in relation to the promotion or non-promotion of an employee, such conduct or omission will amount to an unfair labour practice.
Section 23 of the Constitution guarantees the right of every employee and employer to fair labour practices.
The question of when is the employer's conduct relating to a promotion considered to be unfair has led to much legal debate and consideration by the Labour Court and forums established in terms of the LRA.
In Mashegoane & another v University of the North, the Labour Court described promotion as "being elevated or appointed to a position that carries greater authority and status than the current position that the employee was in".
The court extended the definition of promotion to include the non-appointment of employees to newly created posts, provided the appointment to such a new post would have elevated the employee's status.
The general rule in employment in law is that the employer has the right to appoint or promote employees it considers best or most suitable for a particular position. CCMA arbitrators have shown a reluctance to interfere with the employer's discretion on whether or not to promote an employee.
The courts have held that though it may not be easy to justify preferring one candidate over another, the employer is expected to at least state his reasons for promoting preference decision.
In SA Municipal Workers Union on behalf of Damon v Cape Metropolitan Council, the court held that the process of selection inevitably results in a candidate being appointed and the unsuccessful candidates being disappointed, and that it was not unfair to do so.
The question whether an employee has a legitimate expectation to be promoted was the central issue in Mogorosi v South African Reserve Bank. In this case the employee had requested promotion by the employer for a number of years, without success.
Finally tired of this, he filed a grievance and thereafter referred the dispute to the CCMA, claiming that the employer was guilty of an unfair labour practice because he had a reasonable expectation of promotion, which had unreasonably been frustrated by the employer.
The commissioner found that before an employee can claim to have a legitimate expectation to be promoted, he must prove that he was given a categorical assurance by the employer that he would be promoted.
In the circumstances, if an employee wants to prove that he has a legitimate expectation to be promoted he must convince a decision-maker that the employer, among other things, had assured him that he would be promoted. In this context, legitimate expectation means that an employee is only entitled to a hearing and does not guarantee that he will be the promoted.
l The writer is deputy chairperson of Eversheds, and Athi Jara, a candidate attorney at Eversheds