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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This month's newsletter looks in depth at problems arising out of promotions and demotions. We also look at two new decisions, one dealing with the meaning of 'promotion' and one with the duty to make reasonable accommodation for an employee with disabilities.

This public newsletter is a free edited version of the subscriber newsletter.


When is a promotion a 'promotion'?

The unfair labour practice definition in s 186(2) of the LRA includes promotions but not appointments. Many employers, as we note in our article in this month's newsletter, no longer have a promotion process - employees must simply apply for a vacant post at a higher level. Yet employees still talk about this as 'promotion'. The issue arose in the Labour Appeal Court in Department of Justice v CCMA & others [2004] 4 BLLR 297 (LAC).

When the Chief State Law Advisor retired, the Department of Justice advertised the post internally and externally. At the time, the formal requirements for the post were possession of an LLB degree and admission as an advocate of the High Court. A selection committee was appointed to shortlist the many applicants and conduct interviews. Having done this, the committee decided not to recommend any of the applicants. The post was then re-advertised. After the second process, the committee again decided not to recommend any of the applicants, all of whom were considered weaker than the four original short-listed candidates. The Department however decided to recommend to the Minister that the formal requirements for the post should be relaxed, and that one of the applicants who did not have the originally specified requirements for the post, should be appointed on a fixed term contract. The Minister agreed, and the applicant was appointed Chief State Law Advisor for 12 months.

One of the original applicants then applied for "protective promotion" on the ground that he complied with the requirements for the post and had a legitimate expectation to be appointed. The CCMA found in his favour. At the Labour Appeal Court, the Department contended that the CCMA had lacked jurisdiction to arbitrate the dispute because it was not a dispute about promotion. The Court dismissed the Department's contention that the CCMA lacked jurisdiction because the dispute was one concerning "interests", not rights; disputes concerning appointments or promotions are disputes concerning the right of applicants to be treated fairly, and are thus about claims for rights. The Court held further that the unfair labour practice section was not confined to disputes concerning conduct relating to promotion, and so did not exclude disputes concerning whether the employee should have been promoted.

When is incapacity a disability?

It is well known that incapacity may be a valid ground for dismissal. In terms of the Code of Good Practice: Dismissal the employer must investigate the following:

  1. whether or not the employee is capable of performing the work; and
  2. if the employee is not capable -

    1. the extent to which the employee is unable to perform the work;
    2. the extent to which the employee's work circumstances might be adapted to accommodate the disability, or, where this is not possible, the extent to which the employee's duties might be adapted; and
    3. the availability of any suitable alternative work.

There is a second Code that may also apply, the Code of Good Practice on Key Aspects of Disability in the Workplace, issued in terms of the Employment Equity Act (EEA). How do these two Codes relate to each other? The issue arose in NEHAWU on behalf of Lucas and Department of Health (2004) 25 ILJ 2091 (BCA).

In this case, the arbitrator recognised that there were two Codes of Good Practice which could be applicable: the Code on dismissal, which recognises incapacity as a valid reason for dismissal, and the Code on disability issued in terms of the EEA.

It was stressed that the EEA requires an employer to make 'reasonable accommodation' for employees with disabilities (defined as people who have a long-term or recurring physical or mental impairment which substantially limits their prospects of entry into, or advancement in, employment). The arbitrator found that on the facts the employee fell within this definition of disability and that what the employer did fell short of 'reasonable accommodation'. This is defined in the EEA as 'any modification or adjustment to a job or to the working environment that will enable a person from a designated group to have access to or participate or advance in employment'. The arbitrator also concluded that reasonable accommodation is not limited to vacancies that exist - it may include modification of the existing job if this does not place too large a burden on the employer.

The arbitrator ordered the employee to submit to the examination of a qualified independent occupational therapist who was required to give a clear and unambiguous opinion to enable the department to make an informed decision. If the therapist considered that the employee can return to work with reasonable accommodation, the employer was ordered to reinstate the employee.

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Bruce Robertson
February 2005
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