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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This month's newsletter focuses on Appointments and Promotions, and includes comment on a number of recent cases on this theme.
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ARTICLE: An update on the law of appointments and promotions
By Prof Alan Rycroft
To what extent should arbitrators and judges interfere in the way employers exercise managerial prerogative in appointing applicants and promoting existing employees?Introduction
For a long time legal opinion went along these lines: because the arbitrator or judge had not sat on the selection panel and personally interviewed the candidates, s/he should defer to the employer's decision.
But three things changed this:
- The first factor was the inclusion of 'promotion' in the LRA's s.186(2)(a) definition of an unfair labour practice. This means that an existing employee who alleges that the promotion process was unfair, has a legal basis to challenge it.
- The second factor was the provision in s 9 of the EEA that 'employee' includes an applicant for employment. This means that there can be no unfair discrimination against an applicant for a job and if there is, this can now be challenged.
- The third factor was the requirement in s 3 of PAJA (Promotion of Administrative Justice Act) that decisions taken by state officials have to be rational, and administrative action which materially and adversely affects the rights or legitimate expectations of any person, must be procedurally fair. This means that for state / municipal employees, decisions taken about promotions have to be rational, non-discriminatory and procedurally fair.
Along came the LC judgment of Cheadle AJ in SAPS v Safety and Security Bargaining Council & others (LC Case no: P426/08; judgment date 27/10/2010). An applicant for promotion (Noonan) referred a dispute to arbitration. The successful candidate had failed to disclose that he had a valid verbal warning and in fact indicated that he had not been convicted of any disciplinary offences during the period of his current rank or post level. The grievant alleged that this failure to disclose his prior disciplinary record resulted in the selection panel not being able to apply its mind to his integrity and suitability; as a consequence the selection panel's failure to apply its mind to this aspect rendered its recommendation of the third party invalid. The grievant argued that SAPS had committed an unfair labour practice relating to promotion in not promoting him, which prejudiced his career progression within the SAPS.
The Arbitrator did find that SAPS had committed an unfair labour practice and ordered SAPS to promote the grievant. This award was taken on review to the Labour Court where Cheadle AJ set down some rather provocative principles, which were interpreted to give a very wide discretion to employers in the selection / recruitment process. These are summarised below:
- There is no right to promotion in the ordinary course; only a right to be given a fair opportunity to compete for a post.
- Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice.
- If the employee is not denied the opportunity of competing for a post then the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason.
- 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.
- As a general rule the appropriate remedy is to refer the decision back in order to allow the complainant a fair opportunity to compete. The exception being where there has been discrimination or victimization and there are compelling constitutional interests at stake or if the applicant proves that but for the unfair conduct, he or she would have been appointed.
'This approach overlooks several aspects. The first is that there was no disclosure by the third party at all. The second is that the National Commissioner condoned the failure after the appointment was made. The third is that it downplays the value of process and lends support to possible dishonest practices. Fourthly it devalues the role of the first selection panel. And importantly it prejudiced the appellant as he would possibly have been ranked first on the list of recommendations.'
The LAC, tackling the Labour Court's idea that mistakes do not constitute unfairness if the decision can be rationally justified, said the following:
'...the non-disclosure enables the non-disclosing candidate to rise through the process to a stage where the National Commissioner is able to condone the lapse. This is manifestly unfair. Every applicant is obliged to apply his or her mind carefully to the application form and to complete it honestly and diligently so as to compete fairly with other candidates.'
The LAC was making the obvious point: Where an applicant prevents the selection panel from performing its task, he or she defeats the purpose of having a selection panel and illegitimately advantages himself or herself. And, of course, this disadvantages the other candidates. The LAC found that in not thoroughly checking the disciplinary record of the appointee and then appointing him, the SAPS had committed an unfair practice and Noonan should be compensated for the procedural unfairness.
To sum up: the robust approach of the Labour Court (which said that as long as you are given a chance to compete in the promotion process and the panel reaches a rational decision, then mistakes made along the way don't count as unfairness) has been overturned by the LAC. The present law could then be summarised by stating that an employer - particularly in the public sector - commits an unfair labour practice if it makes an appointment based on a mistake / oversight that it had an obligation to check. The LAC decision again widens the basis for a non-appointee to challenge the selection panel's decision.
Arbitrator's powers: assessing the fairness of a promotion
Another issue in the law of appointments and promotions is this: to what extent should an arbitrator, who was not on the selection panel, defer to the employer's appointment?
In assessing the fairness of an appointment or promotion, the arbitrator is obliged to make a reasonable decision. The review test for challenging arbitrator's decisions resulting from the Sidumo case (Sidumo v Rustenburg Platinum Mines Ltd and Others (Case CCT 85/06 Decided on 05 October 2007) applies equally here: is the decision of the arbitrator one which a reasonable arbitrator could not make? An earlier case set out that the CCMA's intervention in the exercise of discretion by employer was limited. A commissioner was entitled to interfere only where it is established that that discretion had been exercised capriciously, for insubstantial reasons or based upon a wrong principle or in a biased manner (Arries v Commission for Conciliation, Mediation & Arbitration & others (2006) 27 ILJ 2324 (LC)).
The CCMA is however prepared to interrogate the rationality of the employer's actions. In Joint Affirmative Management Forum v Pick 'n Pay Supermarket (1997) 18 ILJ 1149 (CCMA) the alleged unfair labour practice was in the employer not promoting an employee from part-time to permanent employee when other employees had been promoted. The CCMA found that the employer had failed to apply its mind to the employee's position. No reasons were given by the employer why it failed properly to consider promotion for the employee. It was found that the failure to promote the employee was an unfair labour practice.
The recent decision in Mlambo and Others v National Prosecuting Authority and Others (LC C437/11 21) illustrates the Labour Court's application of the Sidumo test in reviewing an arbitrator's decision. Employees contested the decision that refused them promotion. Yet they had failed to meet a precondition that they had to have a driver's licence. Despite that, they persisted on review with their argument that the arbitrator's finding was unreasonable. The Labour Court, using the Sidumo test, found that the arbitrator's decision was not unreasonable.
The rights of unions to interfere in the appointment process
To what extent can a trade union interfere in the appointment or promotion process? Does a union have 'locus standi' to litigate (ie the right to bring an action, to be heard in court, or to address the Court on a matter before it)? This matter recently arose in SA Municipal Workers Union v Mopani District Municipality (LC J1516/12 15 June 2012). In an urgent application the union applied for an interdict in its own name to stop the recruitment process for the appointment of a new municipal manager, at a stage where the short-listing had been done and interviews of the candidates was due to take place within a few days. The employer raised an objection to the application: that the union lacked locus standi. The union had based its standing on the provisions of the employer's Personnel Provisioning Policy. The court pointed out that this gave the union the right to attend the short-listing process and to raise objections but that did not give it the right to stop the process if its objections were overruled.
The learning from this judgment is that unless there is a clear legal basis for doing so, a trade union lacks locus standi to interdict the continuation of an appointment or promotion process.
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Bruce Robertson
September 2012
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