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FAILURE TO PROMOTE: A POTENTIALLY UNFAIR LABOUR PRACTICE
An employee can be promoted in one of two ways, i.e. as part of a career development plan or because a vacancy has arisen. Usually promotion would involve an upgrade in the employee's status and probably remuneration as well.
While it is generally recognised that the decision to promote or not to promote is the employer's prerogative, employers often treat such decisions lightly without realising that the failure or refusal to promote an employee may amount to an unfair labour practice. This can happen if the reasons for not promoting an employee are unfair (substantive fairness), for example, if the decision is based on factors that have nothing to do with the employee's suitability for the position or on some ulterior or illegal motive. Perhaps the employer didn't follow a fair procedure - or its own internal policies and procedures - when making the decision not to promote (procedural unfairness).
Arbitrators will generally not interfere with an employer’s reasons for appointing one person instead of another, but they will almost certainly do so if an applicant for a promotional post can prove:
- that he or she was promised a promotion by a superior who appeared to the employee to have the authority to make such a promise;
- that subjective and unsubstantiated criteria were used to exclude a person, e.g. unproven allegations of poor performance; or
- that the decision not to promote a particular person was based on discriminatory criteria.
By far the biggest problem is likely to be managers who fail to comply with their organisation’s own procedures and policies relating to promotion. For example, if a procedure requires that vacancies must be first filled internally before considering external applications, this should be adhered to and external recruitment should be done only if there is no suitable internal candidate available. In the case of uncertainty, the best policy is to continue to advertise internally even while recruiting externally for other suitable persons. Internal candidates therefore still have a chance to apply.
How can one prevent unfair labour practice claims relating to promotion from succeeding? Employers should –
- develop guidelines regarding promotions and how candidates for promotion will be selected;
- make sure these guidelines complement their career and skills development plans;
- communicate the guidelines to all managers responsible for promotional decisions;
- apply the guidelines consistently; and
- always base promotional decisions on the actual requirements of the position and the competencies of the employee.
Barney Jordaan of Maserumule Employment Consultancy for www.labourwise.co.za
Labourwise is an on-line labour relations service aimed at assisting employers
with the implementation of effective labour relations. They can be contacted
via www.labourwise.co.za or info@labourwise.co.za