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When is promotion unfair?

by , 17 September 2013
7% of all disputes referred to the CCMA are unfair labour practice disputes. This includes unfair promotion. Read on to find out when promotion is unfair so you can avoid a trip to the CCMA.

When determining whether a particular practice is/was unfair, first apply the question: 'Does it fall within the definition or not?'

The Labour Law for Managers Loose Leaf Service defines unfair labour practice as any unfair act or failure to act, or any unfair conduct on your part in connection with an employee's:

  • Probation;
  • Promotion;
  • Demotion;
  • Training or lack of training;
  • Provision of benefits;
  • Suspension;
  • Failure or refusal to re-employ the employee in terms of any agreement; and
  • Occupational detriment.

So when exactly is promotion unfair?

If you instruct or invite an employee to apply for a post that's higher on the corporate ladder than his existing post, your employee is justified to view that as a potential promotion.

Should his application not be successful and the refusal isn't based on sound, fair and acceptable reason, your employee may be justified to claim an unfair labour practice.

If your internal procedures in your policies and procedures manual state that you must advertise a vacant post internally first, an omission to do so would constitute unfair labour practice.

But, if you do advertise internally and find no suitable candidates, you would be acting fairly if you then advertised the position externally.

For example: If you refuse to promote Joe to a higher post simply because 'we need him in his present job', or 'we can't promote him – he is too good at his present job', then your refusal to promote can't be said to have been based on sound, fair and acceptable reason.

But, should you promote Joe because he has given outstanding service, has shown good judgement and strong leadership qualities in his present post. And these are inherent requirements of the job in the new post, your decision to promote would be based on sound and fair reason.

The point here is that you must be quite certain of your reasons for appointing one particular candidate over another.

Make certain your decision to promote is based on the inherent requirements of the job (what result you require from the person who does the job). In addition, the suitability and capability of the appointed candidate must comply with and meet those requirements.

In other words, select 'the best person for the job'. Never base your choice on personal reasons. This'll help ensure you always promote your employees fairly and avoid unfair labour practice disputes.

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Andre Eagar 2013-09-21 19:49:43

This is good, but there are more grey areas. Especially where an employee is of the view that he/she meets the requirements for the higher post yet is never shortlisted when the post is advertised.
Also: does one unfortunate incident in a career, make that employee non-promotable for ever?

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