CHAPTER 1. GENERAL INTRODUCTION
1.4. STRUCTURE OF THE THESIS
4 1 Introduction
In an unfair labour practice disputes, the burden of proof is on the employer to demonstrate that the information obtained during the selection process was in accordance with prescribed norms and ethical practices and that such information is not prohibited by law. Section 23(1) of the Constitution states that ‘everyone has the right to fair labour practices’. The concept of fairness, whether substantive or procedural, is most of the time if not all the time, a bone of contention in most promotion disputes. This chapter deals with or considers the concept of fairness in promotion disputes.
Most critical issues to be unpacked in this chapter include the use of polygraph tests in promotion disputes, whether or not it can be applied; whether or not strict adherence to PAM is an ultimate prerequisite and (un)fair criteria and requirement for appointment or promotion in the education sector; whether or not employees have a general right to promotion.
Furthermore, important requirements or hurdles necessary for proving unfairness are discussed. Other issues of great importance dealt with in the chapter include candidates who obtained higher scores, whether or not the employer is forced to appoint them by virtue of the marks they have received; the consequences for failure to appoint the most suitable candidate; appointment of candidates based on flawed scores; promoting the candidate who did not meet the minimum requirements.
In NETU v Hulett Aluminium (Pty) Ltd,112 it was emphasised that unfairness may either be procedural or substantive. It was further held in SAMWU obo Damon v Cape Metropolitan Council,113 that a mere unhappiness or a perception of unfairness by the applicant does not in itself establish unfair conduct. It is normal for the process of
112 [1999] 7 BALR 796 (CCMA).
113 [1993] 3 BALR 255 (CCMA) par 263.
Page | 45 selection to result in the appointment of a candidate and the unsuccessful candidate(s) being disappointed. This will therefore not be regarded as unfair.
According to Van Tonder substantive unfairness relates to the reason for not promoting the employee, whereas procedural unfairness relates to an unfair process applied by an employer during the course of the selection process.114
4 2 Substantive fairness in promotion disputes 4 2 1 Polygraph tests and promotion. Does it apply?
This question was dealt with in Sedibeng District Municipality v SALGBC115 in which the LC held that failing a polygraph test in itself is not a fair reason for refusal to promote an employee. The facts of the case are that the employer had failed to promote two candidates by relying on the outcome of polygraph tests. The court found that for the same reason that polygraph tests were rejected if used alone in disciplinary hearing dismissals, they cannot be relied on, where there is no any other information impugning the employee’s integrity. Relying on polygraph tests solely or exclusively to eliminate employees for appointment was held to be unfair.
4 2 2 Adherence to PAM in the education sector
According to the authors Mokabane, Odeku and Nevondwe promotion means an act of raise in rank or position, while demotion means an act of lowering in rank or position.116 Despite the fact that promotion is governed by a number of principles, the bottom line allows for deviation from the ideal. An ideal procedure, according to Department of Justice v CCMA117 is described as the one in which, when a vacancy arises, there is a call for applications, followed by the screening of those applications, the compilation of the short list, the invitation to the interview of the short-listed candidates, the conduct of the interview and the ultimate selection.118 Possibilities for
114 Van Tonder Manual for ELRC Arbitrators 61.
115 [2012] 9 BLLR 923 (LC) par 34-41.
116 Mokabane; Odeku & Nevondwe “Employer’s failure to adhere to its promotional policy and procedure: Implications for fair labour practice” 2012 6(46) African Journal of Business Management 11437.
117 (2004) 4 BLLR 297 (LAC).
118 Department of Justice v CCMA par 240.
Page | 46 the employers not to adhere to the strict, fast and hard rules due to time-constraints and time-consuming procedure exists. The most basic rule which is important to consider when dealing with all the applications is fairness. The employer must be able to afford the applicants who meet the minimum requirements and criteria an opportunity to promote their candidature.119
In the education sector, Personnel Measures and Administration (PAM) sets out the procedures to be followed when selecting suitable candidates for teaching posts in public schools. However, it was held in Observatory Girls Primary School v Head of Department of Education, Gauteng Province120 that strict compliance with PAM is not necessary, that form must not be elevated above substance and that “one does not go digging to find points to stymie the process of appointing candidates to teaching positions”. In situations where there is no substantive unfairness, the courts warn commissioners to not readily find against employers for not having complied with PAM to the letter. Educators can therefore not rely on technical procedural irregularities during a promotion process and think that the decision of the HoD can be set aside, thereby inconveniencing the SGB, provincial education department, school, learners at the school as well as the candidate who had been nominated for appointment or appointed. Otherwise any other dissatisfied educator who is unsuccessful in any vacancy related to promotion would lodge a dispute and derail the whole process by applying for an order that the process must be repeated. These may be done even if that particular educator did not possess any relevant and necessary qualifications and experience to that of the incumbent. This would therefore be regarded as pure absurdity and must be avoided at all costs.
An employee who therefore would like to persuade a court or employment tribunal that there was unfair conduct relating to promotion and that the employer’s decision should be interfered with has an onerous task. It has been held in a number of decisions including that of Westrand v SA Police Service121 that an employee has no right to promotion but only to be fairly considered for promotion.
119 Ibid.
120 2003 (4) SA 246 (W) At H 255B - C and D - D/E.).
121 (2003) 24 ILJ 1197 (BCA).
Page | 47 It was stressed, in National Union of Metal Workers of SA v Vetsak Co-operative Limited,122 that the underlying concept of the definition of an unfair labour practice is fairness and that the fairness required in the determination of an unfair labour practice must be fairness towards both employer and employee. Fairness to both means the absence of bias in favour of either.123 An employer has the right to appoint or promote employees whom it considers to be the best or most suitable.124 Arbitrators are therefore reluctant to interfere with the employer's choice in the absence of unfairness.
Furthermore, in Woolworths (Pty) Ltd v Whitehead125 the LAC held that fairness requires an evaluation that is multidimensional. One must look at it not only from the perspective of the employee but also employers and the interests of society as a whole. Policy considerations play a role.126
A number of allegations and claims which arbitrators deal with during arbitrations include failure to be short-listed and/or interviewed by the employer, allegations by the applicant that s/he was the best candidate for the post, allegations of bad faith practices or irregularities by the employer or its delegated authority, failure by the employer to follow its own employment policies, procedures, criteria or regulations, failure by the employer to appoint the highest scoring candidate, unfair discrimination and acting in the higher post which is a subject matter of the dispute. The questions which therefore arise are, whose prerogative is it to appoint or promote an employee?
The obvious answer to this question is that the employer is the one who makes the decision to appoint the employee. A further question which is asked, is can the arbitrator therefore interfere with such a managerial prerogative? The answer to the question is not a straight forward one, however, where the conduct of the employer in taking the decision to appoint has been found to be unfair, the arbitrators can interfere with such a decision.
122 [1996] 6 BLLR 697 (AD).
123 [1996] 6 BLLR 697 (AD) 8-9.
124 NEHAWU obo Thomas v Department of Justice (2001) 22 ILJ 306 (BCA).
125 (2000) 21 ILJ 571 (LAC).
126 Woolworths (Pty) Ltd v Whitehead par 127.
Page | 48 4 2 3 Do employees have a general right to promotion?
According to Du Toit, Godfrey, Cooper, Giles, Cohen, Conradie and Steenkamp employees have no implicit right to promotion.127 The Labour Court held in SAPS v SSSBC128 that it lies within the discretion of the employer to decide who she or he wants to promote. The only thing that the employer must do is to give the employee or applicant who qualifies and meets minimum requirements an opportunity to be heard when a vacancy arises. The principles which the court stated are that there is no right to promotion in the ordinary course, but only a right to be given a fair opportunity to compete for a post. The exceptions are when there is a contractual or statutory right to promotion.
Unlike the arbitration of dismissal disputes where both the substantive and procedural fairness is challenged, in which the whole proceedings are started afresh, the arbitration of a promotion dispute does not entail a hearing de novo, but a review of the employer’s decision. In the case of Minister of Home Affairs v GPSSBC,129 the Labour Court applied the Sidumo130 test to promotion disputes and held that the arbitrator is not given the power to consider afresh what he would have done, but rather decide whether or not the decision of the employer was fair. In Sidumo, the court used a reasonableness test to determine the fairness of dismissal as a sanction.
The test was whether the decision reached by the commissioner is one that a reasonable decision-maker could not reach? The test further allows the commissioners to scrutinise the reasons behind employers’ decisions to ensure that there is logical connection between the decision and the real reasons for the decision.131
127 Du Toit, Godfrey, Cooper, Giles, Cohen, Conradie and Steenkamp Labour Relations Law (2014) 548.
128 [2010] 8 BLLR 892.
129 [2008] ZALC35 par 14.
130 Sidumo v Rustenburg Platinum Mines (2007) 28 ILJ 2405 (CC).
131 Du Toit et al Labour Relations Law 549.
Page | 49 4 2 4 The prerequisites for a fair appointment or promotion
In PAWC (Department of Health & Social Services) v Bikwani,132 a question arose in which the Labour Court had to decide whether or not the conduct relating to a promotion was unfair. The court clarified the role of the arbitrator in dealing with matters of this nature. The Court held that an arbitrator in a promotion dispute has a limited function which is similar to the position of an adjudicator called upon to review a decision made by a functionary or a body vested with a wide statutory discretion.133
In the case of Arries v CCMA134 it was further determined as to what constituted a fair appointment or promotion. The Labour Court identified three pre-requisites for a fair appointment or promotion, namely: the procedure must have been fair, there must have been no unfair discrimination and the decision must not have been unreasonable. It needs to be demonstrated therefore that where the employer did not act irrationally, capriciously or arbitrarily, the courts will be very hesitant to interfere with such a decision. The decision or action of the employer must not have been actuated or perpetuated by bias, malice or fraud. The employer must not have failed to apply its mind or exercised his discretion for unsubstantiated reasons, or must not have based its reason on any wrong principle when deciding on the appointment or promotion.135
The preconditions for appointment or promotion have already been emphasised in the earlier decisions of Ndlovu v CCMA136 and Benjamin v University of Cape Town.137 Furthermore, in SAPS v SSSBC the court held that an arbitrator is not the employer and therefore, it is not his or her task to decide who the best or most suitable candidate is. It was further held that the role of the arbitrator is to oversee that the employer did not act unfairly towards the candidate that was not promoted.138 It is for these reasons that arbitrators must not easily find against the employer, particularly where it is found that the only reasons for unfairness relates to the procedure.
132 [2002] 23 ILJ 761 (LC).
133 PAWC (Department of Health & Social Services) v Bikwani par 771.
134 (2006) 27 ILJ 2324 (LC).
135 Arries v CCMA par 47.
136 (2000) 21 ILJ 1653 (LC) par 11-12.
137 [2003] 12 BLLR 1209 (LC) 1223-1224.
138 [2010] 8 BLLR 892.
Page | 50 In Cullen v Distell (Pty) Ltd139 the arbitrator made reference to Woolworths (Pty) Ltd v Whitehead140 that the legislature did not intend to require arbitrating commissioners to assume the role of employment agencies. A commissioner’s function is not to ensure that employers choose the best or most worthy candidates for promotion, but to ensure that, when selecting employees for promotion, employers do not act unfairly towards candidates. The Labour Appeal Court has made it clear that it will not interfere with an employer’s decision to promote or appoint a particular candidate if the employer considers another to be superior, unless when so doing the employer was influenced by considerations that is expressly prohibited by legislation, or akin thereto.
Employers, therefore have wider discretion when promoting employees as long as they do not exercise their choice arbitrarily, courts will not readily find against them.
4 2 5 The law on substantive unfairness
In terms of the law, there is no general right to promotion. The only right which must be afforded to the employee is to be fairly considered for promotion when a vacancy arises. The Labour Court in Public Service Association of SA on behalf of Helberg v Minister of Safety & Security141 held that the employer should appoint the best candidate when selecting suitable candidates for promotion.142 The employer however, has the right to appoint a weaker candidate in the name of affirmative action in terms of section 6(2) of the Employment Equity Act.143
In situations where employees lodge disputes and complain about the fact that another employee was promoted, the Labour Court held that the complainant must show that he or she has the necessary skills and that the person who was promoted does not possess the same or same level of skills. It was further held; that the mere fact that the candidate who was eventually promoted did not score the highest marks or is not better qualified does not necessarily justify a conclusion that the decision not to promote him was unfair.144
139 [2001] 8 BALR 834 (CCMA).
140 [2000] 6 BLLR 640 (LAC).
141 (2004) 25 ILJ 2373 (LC).
142 Public Service Association of SA on behalf of Helberg v Minister of Safety & Security par 4.
143 55 of 1998.
144 SAPS v SSSBC [2010] 8 BLLR 892 (LC) par 15.
Page | 51 When a vacancy arises, often employers appoint employees to act in that position before a permanent appointment is made. The person who is appointed to act in the higher position expects the employer to consider him/her when the selection is done.
However, it must be noted that the mere fact that an employee has acted in a post, does not give him or her an automatic right to a promotion, even if such a position becomes available. The only reasonable thing for the employer to do when it decides to finally appoint, is to afford the acting employee the right to be heard. In Ndlovu v CCMA145 the court held that it is not easy for an employee to prove substantive unfairness in a promotions dispute. In this case the LC identified four hurdles that an employee must cross in order to show substantive unfairness in a promotion dispute, namely: compliance with the minimum requirements, sound reasons to interfere with managerial prerogative, the reasonableness of the employer’s decision and the causal connection is required. The requirements are dealt with below:
(i) Compliance with the minimum requirements
An applicant who does not comply with the minimum requirements for a job, cannot complain of any unfair conduct relating to promotion because he should not have, in the first instance been shortlisted, let alone been appointed. However, while an applicant in a promotion dispute needs to prove that he complied with the minimum criteria for the post, it is never sufficient for him to prove that he is qualified by experience, ability and technical qualifications, such as university degrees and the like, for the post. This is merely the first hurdle he needs to cross.
(ii) Sound reasons to interfere with the managerial prerogative
In PAWC (Department of Health & Social Services) v Bikwani, the Labour Court held that it is a well-established principle that courts and arbitrators should be reluctant, in the absence of good cause clearly shown, to interfere with the managerial prerogative of employers in the employment selection and appointment process.146 It was further held in George v Liberty Life Association of Africa Ltd147 that an employer has a prerogative or wide discretion as to whom he will promote. Courts and arbitrators should be careful not to intervene too readily in disputes regarding promotion and
145 (2000) 21 ILJ 1653 (LC).
146 (2002) 23 ILJ 761 (LC) 771.
147 (1996) 17 ILJ 571 (IC).
Page | 52 should regard this as an area where managerial prerogative should be respected unless, bad faith or improper motive such as discrimination are present.
Furthermore, in Goliath v Medscheme (Pty) Ltd148 the Industrial Court highlighted with approval that when evaluating various potential candidates for a certain position, the management of an organization must exercise discretion and form an impression of those candidates. The court further held that, this process is not a mechanical or a mathematical one where a given result automatically and objectively flows from the available pieces of information. It is quite possible that the assessment made of the candidates and the resultant appointment will not always be the correct one. However, in the absence of gross unreasonableness which leads the court to draw an inference of mala fides, this court should be hesitant to interfere with the exercise of management's discretion.
In PAWC (Department of Health & Social Services) v Bikwani149 the Labour Court indicated that, in deciding whether conduct relating to a promotion was unfair, a court or tribunal has a very limited function and is in a similar position to that of an adjudicator called upon to review a decision made by a functionary or a body vested with a wide statutory discretion.
(iii) The reasonableness of the employer’s decision
In deciding on fairness, the emphasis is not on the correctness of the employer’s decision, but on the reasonableness of the decision. In Ndlovu v CCMA150 the court held where the employer’s decision is rational in appointing another candidate, no question of unfairness can arise.151 The court further held that in order to show unfairness relating to promotion, an employee needs to prove that the employer, acted in a manner which would ordinarily allow a court of law to interfere with its decision.
Some actions by the employer may include acting irrationally, capriciously or arbitrarily, bias, malice or fraud, failure to apply its mind or discrimination.
In PSA v Badenhorst v Department of Justice152 the arbitrator accepted the fact that there may be reasons for preferring one employee to another apart from formal
148 (1996) 17 ILJ 760 (IC) 768.
149 (2002) 23 ILJ 761 (LC) 771.
150 [2000] 12 BLLR 1462 (LC).
151 [2000] 12 BLLR 1462 (LC) 1464.
152 [1998] 10 BALR 1293 (CCMA).
Page | 53 qualifications and experience. Furthermore in Rafferty v Department of Premier153 the arbitrator found that it is within the prerogative of the employer to attach more weight to one reason than another, and this may take into account subjective considerations such as performance at an interview as in PSA obo Dalton v Department of Public Works154 and life skills as in Badenhorst case above.
Page | 53 qualifications and experience. Furthermore in Rafferty v Department of Premier153 the arbitrator found that it is within the prerogative of the employer to attach more weight to one reason than another, and this may take into account subjective considerations such as performance at an interview as in PSA obo Dalton v Department of Public Works154 and life skills as in Badenhorst case above.