Promotions in the workplace do tend to bring out an emotional response due to perceived favouritism and perceived employer subjectivity. Legal

• Labour relations act Section 186(2)

Definition of a promotion

• Promotion is the elevation of an employee to a higher position within the organisation, accompanied by an increase in remuneration or benefits, stature and responsibility.

The labour relations act does recognise that an employer’s conduct when it comes to promotions may lead to unfair labour practice, but like with everything else in employee relations, it’s not as simple as that. For instance, if an employer without any good reason does not to promote a deserving employee when a promotion opportunity exists and a fair procedure has not been followed, the employee may rightly complain of an unfair labour practice The onus is on the employee to prove that the employer’s conduct is an unfair labour practice, due to the fact that an employee is not entitled to a promotion in the employers’ organisation. However, this does not mean the employer must not follow the normal requirements of recruitment and selection and ensuring fairness, transparency and objectivity when it comes to promotions. The below CCMA case is a good example of how fairness in the promotion process can yield positive results for the employer when faced with the CCMA. In SAMWU obo Mzamo / City of Cape Town (2009) 18 SALGBC 6.9.8, the applicant claimed that the failure of the respondent to short-list him for a second round of interviews was unfair. He had already been found unsuitable for the position in a first round of interviews. The Commissioner found that this was not a promotion dispute but simply a complaint about not being short-listed. He found that there was no reason why the employer would have been obliged to shortlist the applicant for the second round of interviews. The applicant had already been assessed and found to be unsuitable, a decision he failed to challenge. The applicant’s quest for promotion came to an end when he was found unsuitable in the first round of interviews, and there was no further obligation on the employer to again shortlist the applicant. The applicant had no claim to a legitimate expectation that he should have been short-listed and promoted, hence his application was dismissed. Let us look at a situation in which promotion is expected by the employee, mainly due to the fact that the employee was acting in that position for a while and rightly or wrongly expects the position to be his/hers. Like the situation above, if an employee is asked to act in a position, it does not mean they will be promoted into the position even if there’s a perceived expectation. The employer might just want to fill the gap temporarily whilst busy with the recruitment process, but on the other hand, the employee could have a solid and legitimate expectation if:  

• The employer has made verbal or even a written promise to the acting employee that they would be promoted in the position they currently acting in.
• The employer has created a precedence of appointing or promoting acting employees into the positions in which they are currently acting in.

  The below CCMA case dealt with a case in which the employee was in an acting position for two and a half years, and it clearly proves that even the duration of acting in a position does not warrant a promotion. In Prinsloo/ Nelson Mandela Bay Municipality(2008) 17 SALGBC 6.9.3 the applicant acted in a more senior position for 2 and half years and claimed that the employers’ failure to appoint her permanently in this position was unfair. She referred an Unfair Labour Practice dispute to the CCMA under section 186, item 2(a) of the Labour Relations Act 66 of 1995. The applicant claimed that she expected to be appointed in the more senior position as a result of her acting in the position for more than two years. The commissioner did not agree and indicated that her expectations did not amount to a legitimate expectation and her expectation was no more than an expectation. It was held that the respondent did not act in an unfair manner. In conclusion, employers need to understand the emotions that will come when a promotion is going to take place in the organisation, the process must always be objective and transparent in order to eradicate any ill feelings and perceived subjectivity from the employees who aren’t successful in the promotion. Regarding employees that are in acting positions, it would be wise for employers to make the terms of the acting very clear to the employee in order to remove any false expectations.