Promotion and demotion South African labour law

1 promotion , demotion

1.1 basic principles

1.1.1 meaning
1.1.2 unfairness
1.1.3 remedies


1.2 probation
1.3 provision of benefits
1.4 training
1.5 unfair suspensions
1.6 other disciplinary action short of dismissal
1.7 failure or refusal reinstate
1.8 protected disclosures
1.9 resolution of disputes

promotion , demotion
basic principles

many cases have been referred commission conciliation, mediation , arbitration , courts in regard. these cases, 3 main issues arise:

meaning

employers commonly use 1 of 2 systems promote employees:

the second system problematic. commission conciliation, mediation , arbitration , courts have held not promotion @ all, employee nothing other job applicant.

firstly, in order constitute dispute concerning promotion or demotion, aggrieved individual must employee of employer wishes take action.

secondly, 1 must compare current job held employee job applied for.

factors taken account include difference in remuneration levels, fringe benefits, status, levels of responsibility or authority or power, , level of job security.

in mashegoane v university of north, dispute whether university’s refusal appoint lecturer position of dean of faculty involved promotion. legislation governing university provided deans appointed senate acting on recommendation of faculty board. university argued

that position of dean not applied for; and
that not promotion; but
that nomination.

once court established applicant current employee, found salary have remained same, have received dean s allowance , have had car @ disposal; these benefits. status have been considerably elevated. have had more responsibilities, authority , powers. in light of this, appointment amounted promotion.

in nawa v department of trade , industry, however, court held there no promotion because there no intention change existing terms , conditions of employment, though there intention change way in work done.

generally commission conciliation, mediation , arbitration , other institutions quick assume there indeed promotion or demotion.

disputes concerning promotion , demotion involve employees being denied higher-level post within structure of employer s organization or being stripped of status or benefits.

unfairness

generally, unfairness implies failure meet objective standard, , includes arbitrary, capricious or inconsistent conduct, regardless of whether intentional or negligent.

mere unhappiness on part of employee not unfair.

with regard substantive fairness, may difficult justify choice of particular candidate in precise terms. employer @ liberty take account subjective factors, such performance @ interview, when considering appointment or promotion. employer must still provide reasons, however.

with regard procedural fairness, employer must follow own procedures: if there practice of advertising posts, may not, without reason, depart policy. employee may challenge composition , competency of selection panel.

examples of unfairness include bias, nepotism , erroneous exclusion of employee shortlist due mistake employer or selection committee.

remedies

the relief must determined on terms deemed reasonable commissioner.

relief may in form of declaratory order, protective promotion, remitting matter employer reconsideration, , reinstatement previous position (in case of demotion).

probation

guidelines may gathered rules govern obligations of employer before fair decision dismiss on grounds of poor performance reached, , code of practice: dismissals.

in context, unfair conduct may include failure inform employee required performance standards, , failure employer afford employee reasonable guidance, evaluation, training, counselling , instruction.

provision of benefits

an employer may commit unfair labour practice through unfair conduct relating provision of benefits.

this provision, contained in section 186(2)(a) of labour relations act 1995, not appear problematic, has been beset considerable uncertainties regarding interpretation of benefits.

early decisions of commission conciliation, mediation , arbitration attached wide meaning term benefits.

the problem complicated section 65(1)(c) of labour relations act 1995, provides employees may not strike on issues may referred arbitration in terms of labour relations act 1995. dispute on benefits may referred arbitration. if benefits given wide meaning, , taken include remuneration, mean employees may not strike on wages , salaries.

there 2 approaches resolving problem of interpretation:

generally courts take narrow approach interpretation. apply combination of 2 approaches above. has been held term benefits in definition of unfair labour practice includes benefits ex contractu , ex lege: benefits exist in terms of contract or law.

there growing support notion unfair labour practices should include not disputes of right, disputes there expectation of right.

training

this prohibition has had little effect in practice. in view, however, of obligations placed on employers in terms of eea , skills development act, may become more important in future.

generally employees may challenge denial of training such training prerequisite advancement in workplace.

unfair suspensions

there 2 types of suspension:

preventative suspension, disciplinary charges being investigated against employee, , employer wants suspend employee pending outcome of disciplinary enquiry; and
punitive suspension, suspension imposed disciplinary measure short of dismissal after disciplinary hearing has been held.

in context of section 186(2)(b), 1 must consider whether both types of suspension covered, , requirements fair suspension are.

initially view taken punitive suspensions fell within scope of unfair labour practice, view rejected labour court.

the commission conciliation, mediation , arbitration follows labour court s view , assumes jurisdiction on both punitive , preventative suspensions.

the practice of preventative suspension not in unfair long there substantive , procedural fairness when employer takes decision.

substantive fairness in context refers reason suspension. employer must have reason believing suspension necessary. be, example, seriousness of misconduct creates rumours , suspicion, necessitating suspension of employee in order work carry on smoothly, or employer has reason fear employee in question may interfere investigation or witnesses. may employer fears recurrence of misconduct, or seniority , authority of employee in question has bearing on matter.

procedural fairness not mean employee must given hearing before suspension. @ least, though, employer must inform him of suspension, reasons it, , conditions of suspension.

as general rule, employer must continue remunerating employee during course of suspension. if cease remuneration, constitute breach of contract.

suspension without pay possible if employee consents, or if provided legislation or contract of employment itself.

if suspension grossly unfair, employee may seek reinstatement remedy.

where unfairness less serious, employee may seek alteration of conditions of suspension or require employer hold disciplinary hearing within specified time.

other disciplinary action short of dismissal

other disciplinary actions, warnings, suspensions or without pay, demotions , transfers, must meet requirement of fairness. employer must able show warning, demotion or other disciplinary action fair , appropriate in circumstances.

failure or refusal reinstate

section 186(2)(c) of labour relations act 1995 protects employees against failure or refusal of employer reinstate or re-employ former employee in terms of agreement.

the wording same in section 186(d), deals dismissal. unlike section 186(2)(d), however, section 186(2)(c) not deal termination of employment; nor state there must offer of re-employment employees , no offer in respect of others. furthermore, section 186(2)(d) not refer agreement; section 186(2)(c) does.

protected disclosures

any occupational detriment employee may suffer due making of protected disclosure unfair labour practice.

occupational detriment , protected disclosure defined in protected disclosures act.

occupational detriment includes, inter alia, being subjected disciplinary action; dismissed, suspended, demoted, harassed or intimidated; transferred against 1 s will, refused transfer or promotion, etc.

once established employee has suffered occupational detriment, must proved detriment due protected disclosure. means there must protected disclosure, , there must causality between disclosure , detriment.

as far causality concerned, labour relations act 1995 requires detriment must on account of protected disclosure.

disclosure defined disclosure of information regarding conduct of employer, or employee of employer, made employee has reason believe information concerned shows or tends show 1 or more of following:

criminal offence has been committed, being committed or committed;
person has failed, failing or fail comply legal obligation person subject;
miscarriage of justice has occurred, occurring or occur;
health or safety of individual has been, being or endangered;
environment has been, being or damaged;
unfair discrimination contemplated in promotion of equality , prevention of unfair discrimination act [...]; or
matter referred [above] has been, being or deliberately concealed.

generally, such disclosures become protected when made persons , offices under conditions:

it made in faith;
the employee reasonably believes substantially true; and
it not made personal gain.

furthermore, employee must have reason believe

that, if disclosure made employer, suffer occupational detriment;
that information disclosed, , no action taken employer; or
that matter exceptionally serious.

not every disclosure made employee protected. gradually courts beginning consider nature of protected disclosure , protection afforded employees.

in grieve v denel, employee busy preparing report employer’s board of directors relating allegations of wrongdoing manager. employee found himself charged misconduct, suspended , told attend disciplinary enquiry. approached labour court interdict stop employer’s taking disciplinary action. court held disclosures employee intended make in faith, , that, if allegations true, indicate possible criminal conduct. disclosures held fall within ambit of protection. employer ordered not proceed pending disciplinary action.

in cwu v mobile telephone networks, labour court held employee’s accusation of fraud management did not constitute protected disclosure; merely employee’s opinion , not supported facts.

resolution of disputes

the procedure resolving unfair-labour-practice disputes similar dispute resolution unfair dismissals.

first, dispute must referred bargaining council (or commission conciliation, mediation , arbitration if there no bargaining council) conciliation.

if conciliation not succeed, matter may referred arbitration.

unlike unfair dismissal disputes, unfair-labour-practice disputes required, section 191 of labour relations act 1995, referred within ninety days of relevant act or omission, or ninety days date on employee became aware of act or occurrence.

in terms of section 193(4) of labour relations act 1995, arbitrator has power determine unfair labour practice dispute on reasonable terms, may include ordering reinstatement, re-employment or compensation (of twelve months pay).

the onus on employee prove elements of alleged unfair labour practice in question.