“The progress of the law relating to unfair labour practices has been torturous and rendered a body of jurisprudence that is complex and confusing. Recent developments have rendered it unnecessary to rehearse that in this article”
[Publication by Anton Myburgh SC & Craig Bosch “Reviews in the Labour Courts”]
PURPOSE OF THIS ARTICLE
In order to share this article, some background facts will have to be disclosed. The artistic inspiration for the drafting hereof emerged after my colleague and trusted friend, attorney Nakedi Charles Machaka and I decided to take a well-deserved rest after a hectic day.
Seated under the protection of a Lapa [a small wooden hut shelter] situated at the back of our offices we relaxed, only for a few minutes. Suffice it to mention in passing that while sipping a very good red wine the intricacies of the Unfair Labour Practice as stipulated in the Labour Relations Act 66 of 1995 (as amended) (the LRA) s186 (2) (a), to wit unfair conduct by the employer relating to promotion, became the subject matter of discussion.
During the intense debate, we agreed that it would appear that the Unfair Labour Practice (ULP) gained popularity as a cause of action in matters that have been referred for dispute resolution albeit to the CCMA, or bargaining councils.
The question that arose concerned the reasons for the rise in popularity of the ULP as a cause of action. We have elected to attempt to provide reasons for the surge in ULP disputes hereunder.
Before dealing with the statutory definition of a ULP as codified in South African labour legislation the quote cited above by Myburgh SC et al is relevant insofar as it makes reference to the complexities, technicalities and confusing nature of the ULP jurisprudence.
It has therefore been elected by the author to confine this article to one of the ULP’s listed in s186 (2) of the LRA namely unfair conduct by the employer relating to the promotion.
The intention is to draft follow up articles as to questions pertaining to the other ULP’s that are listed in s186 (2). The writing of the intended follow up articles will depend on and subject to the health of the author as well as other considerations.
Allow me the opportunity to mention the observations about the article by the esteemed jurist and academic, George J. Gliaudys Jr -1st Chair of the Board of Trustees of Westcliff University, USA:
"As always, the article is well-researched and grounded in a writing style that is understandable to anyone interested in learning about the subject matter. As any marketing person knows, the value of a product largely depends on its scarcity while demand is high. So too, for promotions - there are only so many positions at the top of any ladder - be it shorter or taller - and so the scramble is on to reach that highest rung by crook or by hook providing the grist for law practitioners in the courts or in arbitration forums to sort out the complaints of those who did not get the top rung."
“Section 186(2) (a) of the Labour Relations Act, 66 of 1995 (LRA) provides that the unfair
conduct of an employer – “… relating to the promotion, [emphasis added], demotion,
probation (excluding disputes about dismissals for a reason relating to probation) or
training of an employee or relating to the provision of benefits to an employee …”
constitutes a ULP.”
The first question that comes to mind is ‘What is a promotion?’ as envisaged by the legislature in s186 (2) (a) above.
In Mashegoane v University of the North the Court defined promotion as being elevated or appointed in a position that carries greater authority and status than the current position the employee is in.
Of clarification is that the Court held in Sukhdeo v Department of Welfare & Population Development, KZN that a dispute concerning a notch increase within the same post does not constitute a dispute about ‘promotion.’ Promotions are usually accompanied an increase in remuneration or benefits.
In SAMWU obo Damon v Cape Metropolitan Council it was held that [u]nless the appointing authority was shown to have not applied its mind in the selection of the successful candidate, the CCMA may not interfere with the prerogative of the employer to appoint whom it considers the best candidate.
In Van Rensburg v Northern Cape Provincial Administration it was held that interference in the employer’s decision is justified only where its conduct ‘so grossly unreasonable as to warrant interference that they failed to apply their mind.’
A failure to promote can be challenged with reference to the procedure adopted in promoting the successful candidate and the reasons for failing an applicant. The relevant principles were set out by Cheadle AJ in SA Police Service.
According to Cheadle AJ it is not necessary for the applicant to show that she had the right to be promoted as opposed that the employer’s conduct in relation to promotion was unfair. Any conduct that denies the employee a fair opportunity to compete for a post constitutes a ULP.
SUMMARY OF THE LAW AS DISCUSSED ABOVE
EXAMPLES OF REVIEW OF ARBITRATOR’S AWARDS
WHEN CAN AN ARBITRATOR INTEFERE WITH A PROMOTION?
The Labour Court succinctly answered the above question in the often-cited judgement Arries v CCMA & Others
In Case Law for CCMA Commissioners at paragraph 1804 it was suggested that it was arguable that promotions should be assessed, not according to the grossly unreasonable/male fide test referred to in Arries, but against a test of fairness taking into account inter alia the following factors referred to in Arries:
That the overall test is one of fairness has now been confirmed in the case under discussion. The Constitutional Court followed Gcaba v Minister for Safety & Security & others and found that that a failure to promote which had no direct consequences for other citizens were not administrative action subject to the review test of unreasonableness:
“ The wholesale adoption of review tests, and notions of ‘setting aside’ an employer’s decision and sending it back to the employer for decision anew, thus appears misplaced. Rather the yardstick of fairness to both parties…is in fact apposite. This does not mean that when a selection process is unreasonable, it should not be identified as such, but that such irrationality goes to the issue of fairness. The clear wording of s 186 (2) of the LRA supports such an approach…
 In this matter, the fairness yardstick… has been used by the commissioner. He has found that in a situation where the applicant’s post (In which he had been acting for five years) remained vacant after his non-appointment, and where the city did not proffer any rationale for the pass mark in respect of the written assignment, nor explain the method of allocation of marks, it had been unfair not to appoint him.”
Of edification is the observations by the acclaimed author Grogan J, who in reference to various case law, observes as follows:
“It is not enough for an employee who complains of unfair conduct in relation to promotion simply to allege and prove that he or she was better qualified or more ‘suitable’ than the successful candidate. The courts have warned that arbitrators are not permitted to impose their own decisions on employers with regard to whom to promote. They may interfere only if the employer acted procedurally unfair…..”
STATUTORY REMEDIES – ULP
Section 194 of the LRA stipulates:
“…the compensation awarded…must be just and equitable in all the circumstances, but not more than 12 months remuneration.” Emphasis added].
“Remuneration” is defined in s213 of the LRA, “means any payment in money or in kind, or both in money and kind made or owing to any person, in return for that person working for any person, including the State…”
It can be argued that s194 (4) of the LRA is empowering. It delineates a set of remedial powers that the Court and Arbitrators can order, however limited to 12 month’s remuneration.
In the matter Tshishonga v Minister of Justice & Constitutional Development the LAC held that s194 refers to”remuneration”purely as a means of capping the amount of compensation that may be awarded and not as a basis of quantifying the award.
The decision to promote is an exercise of employer discretion and the Arbitrator should defer to the employer’s decision.
It may be that the decision to promote someone may be set aside and the employer ordered to conduct a fresh exercise. This is particularly appropriate in public sector matters. See Dumisa v University of Westville
In instances where the decision not to promote was valid and fair, Beukes v SA Post Office the appointment in accordance with a fair procedure, the only remedy would be a process violation, as was the case in Beukes v SA Post Office
In an interesting case before the Labour Court Coetzer & others v The Minister of Security & Another the Labour Court ordered the applicants to be promoted. In another interesting matter before the LAC the successful applicant failed to disclose that he had a previous disciplinary infraction which may lead to unfairness. The LAC held that there was no disclosure to a third party at all.
Secondly, was that the National Commissioner condoned to disclose after the appointment was made. Thirdly, was that it downplays the value of the process and lends support to possible dishonest practices. Fourthly, it devaluates the role of the selection panel and more importantly it prejudiced the Appellant as he would possibly have been ranked first on the list of recommendations.
The LAC held that the non-disclosure of the employee and the condonation thereof even after his appointment as manifestly unfair.
The above constitute examples of the nature of promotion disputes that adjudicators have to determine.
The reader of this article will in all probability agree that the law as regards ULP’s in relation to promotion is technical and complex.
A further matter of concern as to the legislative attractiveness of the ULP could be summarised as follows:
It is suggested that Commissioners make use of their powers to order punitive costs awards against a party that delay or frustrate the effective resolution of labour disputes.
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The content of this article is intended to be general in substance and nature; to provide commentary on contemporary issues and where appropriate constitutes a general guide to the subject matter. Specialist advice should be sought about the reader’s specific circumstances.
The commentary expressed herein is that of the writer and not that of any professional organisation or entity with which the writer may be associated with.
 Anton Myburgh SC & Craig Bosch “Reviews in the Labour Courts” (2016) LexisNexis, 385].
  1 BLLR 73 (LC).
  5 BALR 525 (PHWSBC).
 (1999) ILJ 142 CCMA at 718B.
 (1997) 18 ILJ 1421 (CCMA) at 1426F.
 SAPS v SSSBC & Others  JOL 35883 (LC).
 Ngcobo v Standard Bank of SA and others (D439/12) LAC.
 SAPS v SSSBC & others  JOL 35883 (LC) para 19.
 Apollo Tyres SA (Pty) Ltd v CCMA & others (2010) 34 ILJ 1120 (LAC).
 SAPS v SSSBC & others  JOL 35883 (LC) para 41.3.
 Sukhdeo v Department of Welfare & Population Development, KZN 5 BALR 525 (PHWSBC).
 SAPS v SSSBC & others  JOL 35883 (LC) 1656A-B.
 De Nyschen v GPSSBC & others (2007) 28 ILJ 375 (LC) 380.
 Head of Department of Education v Mofokeng & others  1 BALLR (LAC) 61-62.
 Swarts v National Commissioner of SAPS and others (0915/13)  ZALCD.
 What this means is that employees are appointed to the same grade as the post in question, and the employer must pay them at the applicable rate attached to that grade, whether or not they are actually promoted.
 Kwa Dukiya Municipality v SALGB (2009) ILJ 356 (LC).
 (2006) 27 ILJ 234 (LC).
 (2010) 31 ILJ 296 (CC).
 Workplace Law (2014) 10th edition Juta page 63.
 See Collen v Distell (Pty) Ltd  8 BALR 834 (CCMA); Woolworths (Pty) Ltd v Whitehead (2000) 21 ILJ 571 (LAC).
 [2009 9 BLLR 862 (LAC).
 (2001) 7 BLLR 753 (CCMA).
 (2002) 11 CCMA 6.9.5.
  11 LC 6.9.2.
  33 ILJ 2597 (LAC).