Promotion, a right or a privilege?
Promotion can become a very emotional issue in the workplace. Most employees strive for recognition in the form of a promotion and the increase in salary, status and benefits related to such a promotion. It is especially so when that employee has been eagerly awaiting the perceived long overdue promotion, as recognition for years of loyal and hard labouring service. When the employer promotes another employee or an external candidate to the position, he often lands up in the CCMA with an unfair labour practice dispute and a very disgruntled employee. Section 186(2) determines that an "unfair labour practice" is any unfair act or omission by the employer relating to the promotion, 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.
In Department of Justice v CCMA & others (2004) 13 LAC 1.11.6 it was found that the LRA does not create a right to be promoted. Unless there is some agreement or law giving the employee this right, the employee's expectation to be promoted constitutes a dispute of "interest".
However, the employer has the obligation in terms of section 186(2) to act fairly towards the employee in the selection and promotion process, but apart from that, it is the prerogative of the employer whom he intends to appoint. In this sense, because section 186(2) gives a legal right to a fair labour practice, a dispute concerning whether the conduct of an employer relating to promotion is an unfair labour practice or not, is a dispute of right and not a dispute of interest, which can be taken to the CCMA or Bargaining Council. This should however not be confused with the fact that there is no right to be promoted, but only a right to be treated fairly in the process of promoting or appointing employees to a position.
In SAMWU obo Mzamo / City of Cape Town (2009) 18 SALGBC 6.9.8, the applicant claimed that the failure of the respondent to short-list him for a second round of interviews was unfair. He had already been found unsuitable for the position in a first round of interviews.
The Commissioner found that this was not a placement or promotion dispute but simply a complaint about not being short-listed. He found that there was no reason why the employer would have been obliged to shortlist the applicant for the second round of interviews. The applicant had already been assessed and found to be unsuitable, a decision he failed to challenge. The fact that the applicant had been seconded to the position (for a limited duration with no expectations) could not have created an expectation of being short-listed. The applicant's quest for promotion came to an end when he was found unsuitable in the first round of interviews, and there was no further obligation on the employer to again shortlist the applicant.
The applicant had no claim to a legitimate expectation that he should have been short-listed and his application was dismissed.
In NEHAWU obo Mpondo / Department of Arts & Culture (2009) 18 CCMA 6.6.1and  12 BALR 1306 (CCMA), the applicant, applied to the CCMA for the disclosure of the information of the successful incumbent to support his claim of unfair treatment. The employer refused the information on the basis that it is confidential. The Union applied for disclosure of the information in terms of section 16 of the LRA. The commissioner balanced the harm to be suffered by the parties and found that the employee would suffer more as it would be difficult to conduct the case without the information. The employer was ordered to supply the information.
Johanette Rheeder Attorneys