Transcript Document

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
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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 DurbanWestville
• 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