The Bargaining Council for the Metal and Engineering Industry recently had a look at what constitutes a “promotion”.

An employee, Mr Baloyi, who had 30 years of service with his employer, referred an unfair labour practice to the Bargaining Council after he was unsuccessful in applying for an advertised position.  Baloyi claimed that he was acting in that position for some time and that he had a legitimate expectation of being appointed to the post.

The employer on the other hand claimed that Baloyi did not have the necessary competencies for the position and it was also disputed that Baloyi ever acted in that position.

The commissioner found that “promotion” is the process by which employees would normally advance in organisations.  This generally happens based on an employee’s good performance or if a vacancy arises.  The commissioner was not convinced that where an employee successfully applies for a vacant, that progression would be regarded as a “promotion”.

The commissioner made the following important findings regarding promotion:

  • Commissioners will generally not interfere with an employer’s decision to promote or not to promote;
  • The commissioner will however be entitled to interfere where an employer has acted unfairly;
  • Unfair conduct will mean arbitrary, capricious or inconsistent conduct;
  • It will also be unfair if an employer departs from an agreed procedure regulating appointments and promotions;
  • Employees who act in positions are not automatically entitled to be promoted into those positions and can therefore not rely on the doctrine of legitimate expectation.

The commissioner found that the position was advertised, that Baloyi had been short listed and interviewed and that he had received the lowest score of the short listed candidates.  In circumstances where the selection committee did not act in a grossly unreasonable manner, the commissioner was not comfortable interfering with the decision and the application was dismissed.

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