The Labour Appeal Court recently considered the balance that must be struck between the managerial prerogative to promote employees and the principle that labour forums must intervene in the labour arena if fairness so requires. The judgment in Ncane v Lyster 2017 38 ILJ 907 (LAC) confirms that labour forums and the court will not easily interfere with an employer’s decision regarding who should and who should not be promoted. It also highlights the requirements that employers must comply with so that not promoting a candidate for promotion would be viewed as fair by the labour tribunal or court. The court appears to recognise only one type of promotion, namely competitive promotion, where the internal candidate must compete with persons from outside the workplace for what would be a promotion for him or her. However, there are divergent views in case law relating to what qualifies as a promotion for purposes of section 186(2) of the Labour Relations Act 66 of 1995, and which instances would be covered by the protection against unfair labour practices relating to promotion. It is possible for employers, by means of collective agreements or workplace policy, to provide for the possibility of natural progression from one level to the next in the workplace if employees meet the objective criteria set for the higher post or level. In the event of such an internal promotion, the focus is on the merits and competence of the candidate. Here, in deciding whether or not to promote the candidate, employers should consider mainly whether and to what extent the candidate complies with the objective standards. This is different from competitive promotions, where candidates from within the workplace and outsiders compete for appointment in a vacant post which for the internal candidate would amount to a promotion. The objective requirements and factors that are applied to current employees and candidates applying from outside will not necessarily be the same, as permutations can be applied in competitive promotions.
Moreover, the court in Ncane appears to confirm that if an employer can show that by promoting the successful candidate effect was given to the objectives of a valid employment equity plan, the fairness of not promoting the unsuccessful candidate is beyond scrutiny. Several cases where affirmative action has been raised as a defence in instances where the fairness of an employer’s conduct has been considered, are scrutinised. The Constitutional Court has held, and several other cases confirm, that not only the validity of an employment equity plan is of importance in the inquiry. The way in which affirmative action measures are implemented must also be lawful. This means that other factors besides representativity must also be taken into account by designated employers when deciding on who should and who should not be promoted. Moreover, both the policy itself and the method of implementation must be rationally connected to the purpose of the affirmative action measures.
The new "Code of good practice on the preparation, implementation and monitoring of the employment equity plan" appears to recommend that in the event of promotions as with appointments, designated employers (a) should set numeric goals for the promotion and achievement of representativity; (b) when deciding on whom to promote, should seek to achieve these goals by giving preference to suitably qualified candidates for promotion from the designated groups in accordance with the level of representativity of the particular population group in the workplace; and (c) should, by means of training, see to it that the appointed candidate is provided with the skills required to do the work properly and to enable him or her to progress in the workplace. Employers are required, in terms of the code, to consult with employees regarding the way in which affirmative action is to be applied in the workplace in order to convey an understanding of the reason for or purpose of the implementation of affirmative action in the workplace. This consultation will not take place in so far as it relates to a new appointment, or competitive promotions. In competitive promotions designated employers should be able to prefer suitably qualified candidates from previously disadvantaged groups by shortlisting them and promoting them. However, in internal promotions the focus should be on the merits of the candidate. It would be preferable not to apply affirmative action in the same manner in the case of an internal promotion, particularly in light of the fact that affirmative action would have been applied upon initial recruitment of the candidates. Here, training and transfer of skills as envisaged by the code should be applied in order to provide employees falling in the designated groups with the means of progressing to the next level in the workplace. Designated employers are obliged to provide training to employees in the designated groups to enable them to meet the standards of the work and to progress in the workplace.
The purpose of this contribution, against the backdrop of the judgment in Ncane, is to consider: (a) whether a distinction should be made between competitive promotions and internal promotions which are the result of natural job progression; (b) the impact of affirmative action in promotions; and (c) the remedies that an employee could expect should he or she succeed in an unfair promotion claim. It is concluded that sound reasons exist to differentiate instances where internal and external candidates compete for a post which would be a promotion for the internal candidate from competitive promotions and internal promotion exercises where provision is made in the workplace policy or collective agreements for natural job progression. The objective requirements applied in the respective promotion proceedings differ, and so should the application of affirmative action measures.
In view of the different criteria in respect of the different types of proceeding, it is proposed that affirmative action policy which is applied and the remedies on offer in the labour forums and courts in disputes concerning unfair promotion under the Labour Relations Act 66 of 1995 should also differ. In internal promotions substantive remedies of promotion and protective promotion should be available more readily than it is for competitive promotions, as the focus in internal promotions should be on the merits of the candidate.
Keywords: affirmative action; competitive promotions discrimination; employment equity plan; internalpromotions; managerial prerogative; promotion; promotion criteria; protective promotion; remedies for discrimination; remedies for unfair promotion; substantive remedies; unfair labour practice; unfair promotion
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