Mashegoane & another v University of the North [1998] 1 BLLR 73 (LC)

Principle:

Where a position is not a token position but has real meaning and power attached to it and is of a higher status with more responsibilities, the appointment to the position amounts to a promotion.

Facts:

The employer - a University - had applied for the review of an arbitration award. The University argued that the dispute did not fall within the ambit of the Act as it had to do with the refusal by the University's Senate to appoint the employee as a Dean, which was not a post that was applied for, nor a promotion, but a nomination. The Court held that because the position of Dean carried a higher status, and was clothed with additional powers and authority, an appointment to it amounted to a promotion. Although the Senate was empowered by the University statute to reject a recommendation concerning the appointment of a Dean by a faculty board, it could not do so in an arbitrary manner. Since no basis had been laid on the papers for the Senate's rejection of the nomination of the employee, the Court assumed that it had been done arbitrarily. As to the University's further argument that the matter should not have been referred to the CCMA because the employee had not exhausted his internal remedies, the Court found no evidence of any procedure that was available. The employee had accordingly been entitled to refer the dispute to the CCMA.

Extract from the judgment:

[p 77-78]   Was Mashegoane correct that the University had committed an unfair labour practice by rejecting his nomination to Deanship? For Mashegoane to succeed the Court has to be satisfied that appointment as Dean amounts to a promotion. In the New Shorter Oxford English Dictionary promote is defined as "advance" or "raise to a higher rank or position".

It is common cause that there is an employment relationship between Mashegoane and the University. It is also apparent that the position of Dean is of a higher status. It carries with it the benefits of a car and a Dean's allowance. By virtue of being Dean of a Faculty certain powers accrue to the incumbent.

Had Mashegoane been appointed his salary would have remained the same but he would have received a Dean's allowance and would have a car at his disposal. These are the only mentioned benefits he would receive. I would however also assume that once appointed as Dean his status would be considerably elevated. He would further have responsibilities relating to the management and control of the Faculty. He would also become chairperson of the Faculty Board. It goes without saying that he would be clothed with certain powers and authority to be able to manage and control the Faculty.

To me, at least this indicates that the position of Dean is not a token position, it has real meaning and power attached to it. It is a position that is of a higher status with more responsibilities than a person who is, for instance, a lecturer in the same Faculty. I am therefore of the view that the appointment to the position of Dean amounts to a promotion.