Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me |
The Labour Relations Act (LRA) allows employees to lodge unfair promotion disputes.
For example, in the case of Dedering vs University of South Africa (CLL Vol. 17 February 2008) the employee applied for promotion to the position of associate professor but was appointed to the position of senior lecturer instead.
Despite the employee’s glowing qualifications and undoubted suitability for the job the employer’s rules prevented him from being granted the promotion. That is, the employer’s rules prohibited ‘rank jumping’.
However, it was found that the university’s budget was big enough to withstand a reasonable amount of rank jumping and that the university may not have done its homework. That is, it appears that the university may have made its decision based on a concern in principle for the budget without doing the necessary calculations. This omission removed the rationality necessary to justify the decision not to grant the associate professorship. As a result the CCMA arbitrator declared the failure to promote the employee an unfair labour practice and ordered the university to promote him to that post.
In addition the employer was ordered to make up the shortfall between the salaries of the two posts and to pay the employee’s legal costs.
The above finding acts as a warning to employers that:
- While the concept of management prerogative still exists, such prerogative is not unfettered. Management decisions that affect employees must not only be legal, they must also be fair.
- In order to be fair they must be justifiable
- In order to be justifiable management decisions must be based on proven facts that are rationally connected to the decisions made.
It is a very common problem that managers struggle to base their decision-making purely on facts and rationality.
The reasons for this may include the facts that:
- Managers’ decisions are often hampered by feelings of anxiety about the employer’s finances. Often these feelings result in irrational reactions instead of in analysis of the facts
- Managers are not properly aware that their management prerogative or right to use management discretion is limited by the law
- Managers sometimes assume that the employees concerned will not dare to question their decisions because ‘might is right’.
The above case and many others like it prove this to be a very mistaken assumption and that employers need to attain objectivity by utilising the services of a reputable labour law expert.