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Assessing the the fairness of promotion decisions


It is now trite law that when a CCMA commissioner assesses the substantive fairness of an employer’s decision to dismiss an employee, the commissioner must not show deference to the decision made by the employer. 

By: P.A.K le Roux

It is for the commissioner to decide this issue taking into account the evidence placed before him as well as the reasons given by the employer for the dismissal.

But what approach must a commissioner take when assessing a decision of an employer to promote, or not to promote, an employee when exercising its unfair labour practice jurisdiction in terms of the Labour Relations Act, 66 of 1995? (LRA). Must or can he show deference in this regard? This issue was discussed in CLL vol 22 no 5. In this contribution we discuss a recent important decision of the Labour Appeal Court (LAC) dealing with this question.

The employee in Ncane v Lyster NO and others (DA27/15 10 January 2017), Warrant Officer Ncane, applied for promotion to a post that carried the rank of captain in the South Africa Police Service (SAPS).

Ncane’s application, and that of seven other short-listed candidates, was assessed in terms of criteria set out in a national instruction issued by SAPS management. They were assessed on the basis of three criteria, namely: competency; prior learning, training and development; and, experience. Points were allocated to each candidate in respect of each of these criteria. Ncane received one point less than the successful candidate and, based on this assessment, was not promoted. He referred a dispute to the Safety and Security Sectoral Bargaining Council challenging this decision and argued that the failure to promote him constituted an unfair labour practice. He appears to have argued that he should have been awarded more points for the criteria of prior learning, training and development and experience. The arbitrator rejected his argument and found that SAPS had not committed an unfair labour practice.

On review, the Labour Court decided that Ncane should have been awarded an additional point in respect of prior learning, training and development. This meant that Ncane and the successful candidate should have achieved the same score. This, in turn, meant that the decision not to promote was substantively unfair – the fact that he had not been awarded the same points meant that he had not been given the opportunity “to compete’ in the process. The dismissal was also procedurally unfair because the the national instruction had not been complied with. The arbitrator’s award was set aside on this basis. However, the Court also came to the conclusion that it was not, on the evidence before it, able to find that, if Ncane had been given a fair opportunity to compete, he would have been promoted. The Court therefore decided that it could not grant the order of protected promotion requested by Ncane. It ordered the payment of compensation.

Ncane then appealed to the LAC. The LAC assessed the evidence and came to the conclusion that the arbitrator’s award could not be overturned and that the appeal should be dismissed. Of importance were the views expressed by the Court as to how an arbitrator should approach disputes dealing with alleged unfair labour practices and, in particular, decisions of employers relating to promotion.

It distinguished between procedural fairness and substantive fairness. In the context of promotion this meant that the employer must abide by the law and the objective standards and criteria that it has set for promotion. The employer must ensure that an eligible employee has a fair opportunity to compete for the post. The aim of procedural fairness is to achieve a fair substantive result and the failure to follow a fair procedure may result in a decision also being substantively unfair.

But the Court also acknowledged that the assessment of suitability for promotion is not a mechanical process and that there is an element of subjectivity involved. It said the following -

‘[25] When it comes to evaluating the suitability of a candidate for promotion, good labour relations expect an employer to act fairly but it also acknowledges that this is not a mechanical process and that there is a justifiable element of subjectivity or discretion involved. It is for this reason that the discretion of an arbitrator to interfere with an employer’s substantive decision to promote a certain person is limited and an arbitrator may only interfere where the decision is irrational, grossly unreasonable or mala fides. See on this Goliath v Medscheme (supra).
[26] But where an employer provides that certain rules apply as regards the decision to promote or to recommend a candidate for promotion, eg as in this case, the candidate who scores the most points must be recommended by the panel; good labour relations requires an employer to be held to this. A failure to comply with the rules may result in substantive unfairness.
[27] In the case where another person has been promoted to the post then the unsuccessful candidate must show that this is unfair. And as Wallis AJ (as he then was) said in Ndlovu v Commissioner for Conciliation, Mediation and Arbitration and Others: ‘That will almost invariably involve comparing the qualities of the two candidates. Provided the decision by the employer is rational it seems to me that no question of unfairness arises.’