What is ‘protected promotion’?
AS A general rule of thumb, being promoted is not a right. It’s a privilege that is based on a variety of factors such as performance. As such, if an employee is not promoted, this cannot be challenged. However, under a certain set of facts not receiving a promotion may be challenged based on the fact that non-promotion is an unfair labour practice.
In MEC, Department of Education, EC Province & others v Education Labour Relations Council & others (Case No: PR 206/14, 19 January 2018):
● The issue before the Labour Court (LC) was that an educator claimed that he should have been appointed to the post of head of department for which he had applied. However, someone else was appointed. According to the employee, the appointment was unfair because he was the best-suited candidate in terms of the job requirements as stated in the advertisement.
● The employee submitted the appointed candidate lacked some of the required qualifications (such as the ability to coach rugby) and what tipped the scales in her favour was her proficiency in information technology. It was contended information technology requirements were not mentioned in the advertisement but were added by the principal “later as he wanted the school to be a leader in the field of computer-based/assisted learning”.
● The LC found the Commission for Conciliation, Mediation and Arbitration (CCMA) was correct that the changing of the job requirements was unfair. The CCMA had found that the employees should have been appointed and therefore awarded “protected promotion” which happens where an employee who has been denied promotion unfairly is, by way of compensation, awarded the salary and benefits that go with the post to which theywould most probably have been promoted but for the unfairness.
● The LC did not agree with the CCMA’s remedy and held that the arbitrator lacked the power to order a protective promotion. The LC therefore set the award aside and ordered compensation equal to 12 months’ remuneration. (The case law is not clear on whether an arbitrator and a court has that power. Some cases have found they do and others – like this one – do not).
Jonathan Goldberg – CEO of Global Business Solutions. In this weekly column, labour lawyer Goldberg looks at various aspects of labour law. E-mail questions to news@dispatch.co.za.