PROMOTIONS AND BENEFITS

• Discretion• Act as one sees fit – conduct regulated by ER

rules• ‘Gross’ unreasonableness• Wanton disregard for relevant facts or policy or

rules

• Mala fide (bad faith)• Dishonest; intended to cheat (fraudulent) • Malice• Reckless; intended to hurt• Capricious • Subject to whim; impulsive; unpredictable

• Arbitrary • The absence of reason; has not considered all

relevant facts; inconsistent with no good reason • Objective• Decision based on relevant, provable

facts/criteria; not on personal feelings

• Goliath; Bikwani; Arries; Noonan • Conduct unfair only if the EE can show

that:• He was denied an opportunity to

compete for the post• The decision was so grossly

unreasonable that the court infers malice or bad faith or improper motive

• As long as the decision can be rationally justified, mistakes in the process do not constitute unfairness

• Arbitrators / courts have moved away from these strict tests

• City of Tshwane Metro v SALGBC [2011] 12 BLLR 1176 (LC)

• Where the panel chooses a candidate that lacks the required qualifications and experience [and thus fails to apply the required criteria] and fail to provide good reasons for overlooking a very good candidate,

• the CCMA/BC may intervene and find the process unfair.

• Decision of panel arbitrary

• City of CT v SAMWU obo Slyvster [2013] 3 BLLR 267 (LC)

• Complainant acted in disputed post for 5 years and continued acting after refused promotion

• In these circumstances the ER’s failure to provide a compelling reason for not

• appointing the complainant was unfair showed its decision was arbitrary and thus unfair

• Summary

• Impressive candidate [prima facie good reasons to appoint the candidate] - weak successful candidate - no compelling reason for rejecting good candidate - decision arbitrary - acted unfairly

• Noonan v SSSBC [2012] 9 BLLR 876 (LAC)

• The policy obliged candidates to disclose adverse disciplinary records and required the ER to verify the information in the application forms

• Complainant applied for post of superintendent and ranked 2nd

• Candidate M was rated 1st and appointed but it later transpired that, unknown to the selection panel, he had not disclosed his adverse disciplinary record

• Complainant: M’s non-disclosure resulted in the SP not being able to apply its mind to the suitability of M

• The LC held:

• There is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post

• If an EE is not denied the opportunity of competing for the post and the decision can be rationally justified, mistakes in the process do not constitute unfairness

• Although the mistake led to the disputed ranking, the actual process was rational. There is no evidence that it was rigged or motivated by improper consideration.

• The LAC held:

• Fairness requires the selection panel to properly assess and compare the respective candidates’ suitability

• The effect of M’s non-disclosure and the failure of the ER to properly verify the information in the application form meant that the selection panel was unable to do this

• M’s non-disclosure and the ER’s negligence led to an unfair process

• Relief (LAC):

• Compensation for procedural unfairness in that he was not allowed to compete on equal terms

• Popcru obo Dhanarajan v SAPS (2013) 34 ILJ 235 (BCA): Lyster

• Complainant: met all requirements and scored well in the practical and theory tests, but K and P appointed

• K did not meet minimum requirements and failed theory test

• Reason for K’s appointment: he scored well at the interview and had management skills

• P met the minimum requirements but was never practically assessed

• Process unfair:

• ER reliance on other requirements, rather than advertised minimum requirements, unfair

• The successful candidate has to be competent in the core functions of the posts and K did not meet these requirements

• The ER’s reliance on only interview performance to make final decision

• It is incorrect to use the application forms/CVs for only shortlisting and thereafter treat all the shortlisted candidates as being on an equal footing

• The ER must take into account the candidates’ application form (CV) throughout the evaluation process

• The national instruction required the panel to take into account the candidates’ experience, past performance record, positions held and track record.

• The best way to do this was refer to the candidates’ CV and application form; not just his interview performance

• Process: substantively and procedurally unfair

• Relief

• Protected promotion because the evidence showed that but for the employer’s unfair conduct, the complainant would have been promoted

• SAPU obo Buckus v SAPS (2012) 33 ILJ 2755 (BCA)

• Panel entitled to take into account other considerations, such as knowledge of the environment and service delivery.

• Sedibeng District Municipality v SALGBC [2012] 9 BLLLR 923 (LC)

• Not every consideration that is taken into account needs to appear in the advertisement, although it is preferable to state a factor that might completely disqualify a candidate

• Polygraph testing may be used as a legitimate assessment tool in considering promotions

• However, the real issue was whether the ER was entitled to rely on the polygraph results to disqualify the EEs for appointment in circumstances where they would otherwise have been promoted based on their competency tests and interview scores

• Considering the controversy surrounding the reliability of polygraphs, the exclusive reliance on polygraph test results to eliminate candidates for appointment in the absence of any other information placing a question mark over their integrity, was unfair

• Relief

• Compensation – difference between their salaries and the salaries they would have received had they been promoted.

• De Nysssen v GPSSBC (2007) 28 ILJ 375 (LC)

• Complainant recommended by selection panel

• MEC appointed M

• MEC does not have unfettered discretion

• MEC must have good reason and follow proper procedure when deviating from recommendation

• No proper reason given for deviation• No evidence that M was the more

suitable candidate• Accordingly, the appointment was the

result of arbitrary reasoning

• Relief

• ER directed to remunerate complainant as if she had been appointed (protected promotion)

• Peteni and SAPS (2013) 34 ILJ 228 (BCA): Lyster

• Complainant recommended for promotion by selection panel

• The national commissioner however directed the panel to revisit their recommendations to achieve 50% female representivity per level

• As a result the panel recommended K, a coloured female who had not been recommended for promotion in the earlier promotion process.

• Process found unfair for the ff reasons

• Clause 12(g) of the national instruction gave the national commissioner only 2 choices if he was not satisfied with a recommendation – he could promote someone of his choice from the recommended list or order that the post be re-advertised

• K had not been on the recommended list

• The national instruction did not contain a provision permitting the national commissioner to order the provincial panel to review or amend its decision

• No evidence was led to prove the national commissioner had consulted with the relevant head of the component or the panel as required by the national instruction

• The panel had been instructed to rely on a process that did not apply at the time of the interviews

• The panel had relied on an equity model which provided for a 70/30 gender ratio and was told to review its decision on a totally different ratio of 50/50

• No basis had been offered for the apparent arbitrary change from 70/30 to 50/50

• There was no provision in the EEA or the regulations which empowered the national commissioner to accelerate or fast-track the process in the manner in which he had directed

• Conclusion

• The ER’s conduct was not permitted by its own policies and was thus arbitrary and therefore unfair

• The process was procedurally and substantively unfair

• Relief

• Protected promotion because, on the evidence, it was evident that the complainant would have been promoted had it not been for the unfair conduct

• Dumisa v University of Durban-Westville

• ER did not promote complainant on the basis that he did not meet the criteria laid down by the ER’s promotional policy.

• CCMA ordered the ER to consider the complainant for promotion because the ER had promised to consider him for promotion thereby giving him a legitimate expectation

• Clearly incorrect: even if the person who gave this promise was a person of authority, the fact that the ER has a promotional policy with criteria etc should not give rise a reasonable expectation of promotion where the complainant knows he does not meet the criteria

• Other factors and existing employees• When considering applications from

existing EEs, the ER may take into a/c other factors such as their attendance record, disciplinary record, management skills if management position, years of service, efforts to contribute to the value of the company

• These considerations could in fact count in favour of the existing EE

• It is not unfair to appoint a person with a view not only to immediate needs, but also with a view to future development. To hold otherwise would place unreasonable restraints upon ER prerogative to manage its business

• Fairness guidelines

• Arbitrator does not ‘re-sit’ as the SP and decide who is the best candidate

• Function: determine whether the ER acted fairly in the process

• May examine the procedure of reaching a decision and the decision itself

• Procedure and substance connected

• Procedural defects can result in substantively wrong decision

• The advertisement must contain accurate information about the minimum and preferred requirements

• Assessment of the candidates must relate only to the competencies required for the post, even at interview

• Necessary requirements for the post may not be changed after the advert

• The successful candidate should ordinarily be the person who scores the highest in the assessment

• If there is a deviation from the highest scored candidate, there must be a sound reason, either operationally or for employment equity, to justify this

• If there is a deviation from the highest scored candidate, the successful candidate must possess the competencies needed for the job

• The ER must be able to articulate the reasons why a particular candidate was unsuccessful

• [Rycroft ‘Rethinking the requirements of a fair appointment (2007) ILJ]

• Relief in unfair promotions

• Minister of S & S v SSSBC [2010] 31 ILJ 2680 (LC)

• Protected promotion

• The protected promotion awarded by the arbitrator does not interfere with the promotion of the incumbent to the post.

• It does not usurp the decision of the ER: his decision to promote the X remains intact. What it does is provide an equitable remedy for the EE whose appointment was thwarted as a result of the way the appointment process was conducted.

• The prejudice to the ER of the relief granted is primarily that it imposes additional salary expenditure on it. On the other hand, the prejudice to the complainant of not receiving the tangible and quantifiable benefits of a promotion he described are properly compensated for

• City of Tshwane Metro v SALGBC [2011] 12 BLLR 1176 (LC)

• An order directing the ER to appoint the complainant would have entailed removing the successful candidate from the post he had held for 3 yrs. In these circumstances, the proper remedy was “protected promotion”.

• Substituted order: ER directed to pay the EE the difference between the salary he would have earned from the date he should have been promoted, and the salary he actually earned.

• SAPS v Solidarity/Bernard [2013] 1 BLLLR 1 [LAC]

• The failure by the SAPS to appoint a recommended white female candidate did not constitute UD where white females were over-represented in the level of the advertised post and the failure to appoint was in line with a

• rational, coherent employment equity plan intended to redress inequitable representation in the workplace and the where the ER is answerable for the failure to meet targets set by the equity plan

• In context of the representivity in the SAPS, the ff constitutes a rational connection between the SAPS’s transformational goals and the means to achieve those goals:

• A national instruction regulating ‘fast tracked’ promotions; stating that candidates who obtain the highest ratings and were recommended do not acquire a right to be promoted; that the National Commissioner was not obliged to fill advertised posts.

• Rigid targets: rigid or not, the targets represent a rational programme aimed at achieving demographic representivity required by the plan.

• A plan and national instruction that essentially reserves posts for black appointments: neither the plan nor the instruction sought the appointment of black candidates irrespective of other criteria: they both specifically required that candidates be ‘suitable”.

• As the accounting officer, the NCM is the only person answerable for service delivery. It is not open to the court to “second guess” a decision by him that not filling a post will not compromise service delivery. Such decisions are his prerogative and he is accountable to the Minister & parliament.

• PSA v MEC [Agriculture] [2012] 8 BLLR 805 (LC)

• MEC appointed a female on grounds of AA over the highest rated candidate

• MEC had not acted rationally because the “affirmed” candidate lacked the essential requirements for the job.

• Relief:

• Since the complainant was later appointed to the post, court granted compensation in the amount he would have received had his promotion not been unfairly delayed.

• Munsamy v SAPS 2013 (LC)

• An ER may not reject an EE from a designated group on the basis of AA unless the AA measure relied upon to do so is contained in and permitted by a properly consulted AA plan

• When disputes relating to ‘benefits’ are actionable under s186 (2)(a)

• Prior jurisdictional focus

• On the technical definition of a benefit

• Remuneration distinguished from benefits

• Even where the advantage claimed fell within the technical definition, the EE had to show a pre-existing entitlement to the benefit in contract, specific legislation or judicial ruling [Hospersa LAC]

• Disputes of right concern infringement of existing rights / entitlements embodied in contract or statute

New approach/jurisdictional focus

• Dept of Justice/Protekon/Verster/ Apollo

• “unfair” and “practice” denote:

• a distinct statutory right not contingent on the existence of some other entitlement in contract or statute

• ULP provision designed for situations where the EE has no remedy in contract or common law

The ULP provision comes into play where the ER provided / provides a benefit, but the ER exercises power over the benefit in that the provision of the benefit is regulated by the ER’s rules and discretion and not by legislation or contract.

• The ULP provision comes into play where the ER provided/provides a benefit, but the ER exercises power over the benefit in that the provision of the benefit is regulated by the ER’s rules and discretion; not by legislation or agreement [terms in the employment contract or CA]

• The purpose of the ULP is to regulate the discretionary power of ERs.

• Arbitrators may intervene where the ER exercises that power unfairly.

• IMATU/Verster v Umhlathuze Municipality (2011) (LC)

• “[21] The term ‘benefit’ was intended to refer to advantages conferred on EEs which did not originate from contract or statute but which have been granted at the employer’s discretion.”

• Meaning of ‘benefit’ = an advantage conferred on the EE

• An advantage that does not have its origin in either the contract of employment or a collective agreement

• The advantage conferred on the EE is granted at the discretion of the ER

• The focus in an ULP claim falls on the ER’s exercising its discretion one way or another; and not on the enforcement of contractual rights.

• An ULP dispute about acting allowances would only arise [come into existence] if the EE could make out a case that:

• acting allowances were previously paid to other EEs in similar situations, but not to him; or

• an acting allowance was previously paid to him but the ER is now refusing to pay him in a similar situation.

• the dispute must be that the ER exercised its discretion to pay an acting allowance in an allegedly unfair manner.

• Apollo Tyres v CCMA 2013 (LAC)

• The distinction that the Courts sought to draw betw remuneration and benefits is artificial and unsustainable. The definition of remuneration in the Act is wide enough to include wages and most, if not all. extras or benefits

• The LAC rejected the approach that the EE must show a contractual, legislative or judicially created right to the benefit.

• The better approach would be to interpret the term benefit to include an advantage or privilege which has been offered or granted to an EE in terms of a policy or practice subject to the ER’s discretion.

• Benefit’ means an existing advantage or privilege to which an EE is entitled as a right or granted in terms of a policy or practice subject to the ER’s discretion.”

• Unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended.”

• Conclusion

• To succeed in a claim the EE need simply show that:

• The disputed payment or practice exists in the workplace via a contract, legislation, judicial ruling or as a discretionary advantage or privilege; and

• The payment/practice is unfairly being denied to him

• Exists: there is a formal policy; the ER has provided it in the past

• If the payment or practice does not in fact exist in the workplace, theoretically or in practice, and the EE is, in effect, trying to create such an advantage afresh or reinstate an advantage that no longer exists, then this is an interest dispute and the CCMA/BC lacks jurisdiction

• A claim to make the benefit obligatory in the future also amounts to an interest dispute. Can’t use ULP provision to establish new or additional terms of employment / contractual terms

• Roscher / Industrial Development Corp of Sa Ltd (2011)

• The EE’s contract of employment provided for a performance bonus. In the past she was paid such a bonus but in this case the ER did not pay the bonus since her performance was rated “below” standard.

• Arbitrator found that the dispute related to remuneration, not a benefit, because it it was subject to her work performance and payment for services rendered.

• In the contract of employment the bonus was dealt with under remuneration so the parties had essentially agreed that the bonus was nothing more than additional remuneration that would be paid dependent on performance