May an employer promote or appoint people as it sees fit? What recourse exists for disgruntled staff or applicants for employment wishing to challenge the appointment or promotion of another? The recent furore about our national broadcaster appointing its controversial ex-Chief Operating Officer as acting COO raises the issue of managerial discretion and the law applicable to appointments and promotions.

The Constitution guarantees everyone the right to fair labour practices. The Labour Relations Act and Employment Equity Act are two of the primary statutes giving effect to this constitutional guarantee. The LRA stipulates that every employee has the right not to be subjected to unfair labour practices. This right covers the prohibition against unfair employer conduct relating to promotion (section 186(2)(a) of the LRA). Only existing employees may exercise this right. External parties who had designs on the role cannot claim that the employer committed an unfair labour practice by not appointing them to the position. However, the EEA allows applicants for employment to claim that the appointment of another was unfair where the appointment amounts to unfair discrimination, or where it involved impermissible medical testing, or prohibited psychological or similar assessments.

As a general rule, employers have wide discretion in determining whom they appoint. As the commission stated in Cullen v Distell (Pty) Ltd [2001] 8 BALR 834 (CCMA) -

"…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 the employer chooses the best or most worthy candidate for promotion, but to ensure that, when selecting employees for promotion, employers do not act unfairly towards candidates."

Employees claiming to be the victim of an unfair labour practice relating to promotion must be able to lay the evidentiary foundation for this claim. Dissatisfaction with the result (or the complainant's comparative superiority in one or more respects) would not be sufficient to convince an arbitrator of unfair employer conduct. However, the employer should be able to defend attacks on the procedure followed and the decision taken if it wishes to avoid a negative outcome. Evidence of the business process followed and rationale for the appointment can go a long way in satisfying the employment tribunal that the appointment was made in good faith.

Examples of employers committing unfair labour practices relating to promotion include instances where employers -

  • took irrelevant factors into consideration,
  • appointed a candidate who does not meet the minimum job specifications,
  • invited applications for a role but then appointing a candidate without considering the applications, and
  • failed to follow its own appointment policy when promoting the candidate.

An applicant for employment (not employed by the same employer) may claim that the refusal to employ him or her amounts to unfair discrimination. To succeed with this claim the applicant must show that the employer treated him or her differently (to the other applicants or successful candidate), and that the differentiation was on one of the prohibited grounds listed in section 6(1) of the EEA - or is analogous to such a ground). Arbitrariness is now also a prohibited ground. It refers to a lack of rationality in the decision-making process. Capricious or vindictive conclusions are the opposite of rational decisions - the former is arbitrary and amounts to unfair discrimination.

Employees successful in claiming that their employed committed an unfair labour practice may be entitled to up to 12 months' remuneration or such relief as the commissioner may deem fit .External applicants for employment may receive wide-ranging relief from the labour court, including damages. Unlike the LRA, the EEA does not cap the employer's liability. Unfair discrimination in selecting the right person for the post could thus be a costly affair. The forecast could quickly turn to "cloudy, with a chance of ruin"…

This article first appeared in The Star Workplace on 5 October 2016.

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