PROMOTIONS AND BENEFITS

1. PROMOTIONS AND BENEFITS

2. Discretion • Act as one sees fit – conduct regulated by ER rules • ‘Gross’ unreasonableness • Wanton disregard for relevant facts or policy or rules

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

4. 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

5. 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

6. 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

7. 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,

8. the CCMA/BC may intervene and find the process unfair. • Decision of panel arbitrary

9. 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

10. appointing the complainant was unfair showed its decision was arbitrary and thus unfair

11. 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

12. 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

13. 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

14. 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

15. 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.

16. The LAC held: • Fairness requires the selection panel to properly assess and compare the respective candidates’ suitability

17. 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

18. Relief (LAC): • Compensation for procedural unfairness in that he was not allowed to compete on equal terms

19. 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

20. 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

21. Process unfair: • ER reliance on otherrequirements, 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

22. 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

23. 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.

24. 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

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

26. 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.

27. 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

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

29. 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

30. 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

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

32. De Nysssen v GPSSBC (2007) 28 ILJ 375 (LC) • Complainant recommended by selection panel • MEC appointed M • MEC does not have unfettered discretion

33. 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

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

35. 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

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

37. 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

38. 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

39. 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

40. 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

41. 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

42. 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

43. 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

44. 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.

45. 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

46. 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

47. 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

48. 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

49. 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

50. Procedure and substance connected • Procedural defects can result in substantively wrong decision • The advertisement must contain accurate information about the minimum and preferred requirements