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'I'm sorry; you didn't get the promotion...' An unsuccessful employee can claim up to 12 months' remuneration!

by , 18 August 2016
'I'm sorry; you didn't get the promotion...' An unsuccessful employee can claim up to 12 months' remuneration!It's normally quite simple. You decide who you want to promote. It's your prerogative. You're running the show, and you're perfectly within your rights to decide who you want, or don't want, in a position.

But did you know an employee can have a claim against you if she can prove you were unfair in not giving her the position? Or she can prove you didn't objectively consider her application?

Keep reading below to find out...

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If you don't comply with all 26 changes to the Employment Equity Act, the DoL will be on your case
 
In fact, the DoL could fine you 10% of your turnover or up to R2.7 million!
 
Now 10% may not seem like a lot, but if your annual turnover is R6 million, you'd be liable to pay the DoL R600,000 for each area of non-compliance!
 
And if you're non-compliant with five of the changes that could be cost you R3 million. Can you afford to pay such a hefty fine?
 
That's a lot of money to fork out for something that you can avoid.
 
But what if I told you it's possible to make sure you're complying with ALL 26 of the new amendments with just one easy-to-use checklist?
 
Well that's exactly what I'm promising you today! Don't let the 26 new Employment Equity amendments be the reason the DoL comes after you…
 
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'I'm sorry; you didn't get the promotion…'
 
Let's say Laura applies for a position that means a promotion for her, and she doesn't get it. She has all the qualifications for the position, but loses out to Susan, who actually reports to her. Susan needs some development and experience before she can match Laura's skills and experience. You interview them both for the job.  You feel that, although Susan has less experience than Laura, you believe she'll be able to learn quickly and to cope well at a later stage.
 
So you promote Susan and not Laura. Laura thinks you're being unfair and takes you to the CCMA…
 
Now, the burning question: Does Laura have a claim against you at the CCMA or your Bargaining Council and, if so, on what grounds?
 
Usually it's up to you to decide who you want to hire or promote.  But Laura may have a claim if she can prove you didn't objectively look at her application, and can claim an unfair labour practice. And the penalty for this could be you having to fork out up to 12 months' salary.
 
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Always make sure you have a good reason not to promote the employee (substantive fairness)
 
There's generally only one time an arbitrator will question you for choosing one person over another. This is when he suspects a hidden agenda behind your decision. Or if he thinks the decision's against the law and arbitrary, e.g. it discriminates unfairly against a person.
 
P.S. Not fulfilling all your duties as a chairman can spell disaster. Not only could it be the reason your company lands up at the CCMA, but you might even have to reinstate the guilty employee! Don't take the chance…


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