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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on ‘What happens when traditional, religious or cultural beliefs collide with commercial imperatives?’ In the article we look at several new cases about allegations of unfair dismissal based on unfair discrimination due to cultural or religious discrimination: one case involves a calling to be a sangoma, one about a refusal to cut dreadlocks, another a refusal to shave off a beard. We look at another new case dealing with the criteria a court should use in assessing the fairness of a promotion.
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A new take on promotion disputes
In the recent case of SAPS v Safety and Security Bargaining Council & others (LC Case no: P426/08; judgment date 27/10/2010) several employees applied for promotion in the SAPS. A panel assessed the candidates and scored them in respect of each of the criteria. On the basis of the scores, Captain Noonan (the applicant) was second on the recommended list of three candidates. The recommendations of the panel were then submitted to the National Commissioner and he approved the recommendation in respect of the first person on the list, Superintendant Matshaya.
Captain Noonan challenged the validity of the Commissioner’s approval on two grounds. Firstly, Superintendant Matshaya should not have been on the list because he had not met a threshold requirement for consideration by the evaluation panel, namely the failure to disclose his previous disciplinary record. Secondly, he had been incorrectly scored which caused him being placed second rather than first on the list. Accordingly, had the evaluation committee not placed Superintendant Matshaya on the list or had they placed him second and Captain Noonan first, Captain Noonan’s promotion would have been approved. The matter was referred to arbitration as an alleged unfair labour practice relating to promotion.
The arbitrator found that the evaluation panel erred in a number of ways in their scoring of the candidates and held that panel had ‘laboured a wrong impression regarding Superintendant Matshaya in recommending him as first choice and that on the balance of probabilities the panel would have recommended Captain Noonan as first on the list and that, accordingly, the national commissioner would have appointed him to the post’.
This arbitration award was taken on review to the Labour Court. The Court’s judgement is important and is essential reading for persons seeking to understand the law regarding promotions. It sets out the current law on promotion disputes and then goes on to provide the following principles to be applied when determining unfair conduct relating to promotions:
- There is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. The exceptions are when there is a contractual or statutory right to promotion.
- Any conduct that denies an employee a fair opportunity to compete for a post constitutes an unfair labour practice.
- If the employee is not denied the opportunity of competing for a post, the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason.
- The corollary of this principle is that as long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.
- Because there is no right to promotion in the ordinary course, the appropriate remedy, as a general rule, is to set aside the decision and refer it back to ensure that a fair opportunity is given. Since the interest is the fair opportunity to compete, that should be the appropriate remedy rather than appointing the applicant to the post (or to a post on equivalent terms) or to compensate (there being no loss). There are two exceptions: This principle does not apply to discrimination or victimisation cases in respect of which different and compelling constitutional interests are at stake. It also does not apply if the applicant proves that but for the unfair conduct, she would have been appointed.
This is an important case because its application gives the employer far greater leeway in making appointments and promotions. As long as a candidate is given an opportunity to compete, the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. The corollary of this principle is that as long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.
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