Presentation on theme: "When is the employer’s decision about promotion reviewable?"— Presentation transcript:
1 When is the employer’s decision about promotion reviewable? Rethinking the Noonan judgment
2 S 186 (2)“unfair labour practice” means any act or omission that arises between an employer and an employee involving ... unfair conduct by the employer relating to the promotion ... of an employee“Arbitrators should be slow to intervene too readily in disputes relating to promotion and should be sensitive to the operational requirements, as they may be perceived by the employer, unless bad faith or improper motives are present.”
3 EMPLOYEE FACES TWO HURDLES Unfair conduct relating to a promotionWhat constitutes a promotion?When is conduct unfair?
4 What constitutes a promotion? A promotion is about an employee moving between different jobs or grade levels(1) “Employee” : employment relationship(2) A move between jobs or grades that constitutes an advancement
5 (1) “Employee” : employment relationship Appointment to an advertised post in the same department?Department of Justice v CCMA 2004 : LACo/oh PSA v Northern Cape Provincial Administration 1997 : CCMAAppointment to an advertised post in another department?PSA obo Jordaan & Gtng Dpt of Transport & Public Works 2003 :GPSSBCApplying for a position after merger / restructuring exercise?City of Cape Town v SAMWU obo Jacobs & Others 2009 : LACNOTE:- unfairness must be committed by employerReddy v KZN Dept of Education & Culture 2003 : LAC
6 (2) different jobs or grade levels Regular evaluation and level progressionOther forms of promotion include an advancement in:Remuneration levelsFringe benefitsLevels of responsibility / authority / power / job securityStatus : De Villiers v SAPS 2002 : BCWhat about:A mentoring program? Pillay v Dept of Education 2003 :GPSSBCIncorrect grading? PSA obo Holl & SARS 2010 : CCMA
7 When is conduct unfair? ‘Unfairness’ for ULP’s not defined in the LRA As with dismissals, may be categorised as:Procedural fairnessSubstantive fairnessNB distinction : unlawful conduct or otherwise unfair conductDifferent standards of scrutiny are used depending on the underlying cause of action (unlawful or unfair)Less deference should be required in the case of conduct that is unlawful – ie no requirement of bad faithThe importance of how the dispute is pleaded
8 In context: unlawful or unfair conduct The shrinking space for challenges in common-law (unlawful)‘Promotion’ is not administrative actionGcaba v Minister for Safety & Security 2009 ILJ 2623 (CC)Mkumatela v NMMMunicipality 2010 ILJ 76 (SCA)Implied term (in common law) of ‘fair dealing’?SA Maritime Safety Authority v McKenzie 2010 ILJ 529 (SCA)(But note: Murray v Minister of Defence 2008 ILJ 1369 (SCA) implied term of mutual trust and confidence [Gumbi & Boxer Superstores])Desirability of a ‘one stop shop’ for employment-related disputesTherefore the CCMA / LC standard of scrutiny should not be higher than the common law courts would be
9 Unlawfulness Fault is generally not required to prove unlawfulness Breach of a contractual right to a promotion is unlawfulAn employment practice that is discriminatory is unlawfulSolidarity obo Barnard v SAPS 2010 : LCMashamba v Netcare 2010
10 Procedural defectsProcedural defects can be either unlawful or otherwise unfairApplicants have a right to be consideredNot adhering to contract, policy or procedureGeorge v Liberty Life Assoc of Africa Ltd 1996 : ICElement of bad faith not a requirementRecruitment and promotions in the public sectorPublic Service Act & the Public Service RegulationsSAPS Act, Regulations & National Instruction 1/2004
11 Defects and irregularities Promotion without advertisingMthembu & Another / SAPS & Another 2010 : BCAAppointing a person without the minimum qualificationsMEC, Department of Education, KZN v Khumalo 2010:LCProcedural irregularities in the interview processMinister of Safety & Security v S&SSBC 2010:LCLegitimate expectation – SAPS v S & SSBC 2010:LC
12 Unfairness Unfairness toward acting employees De Nysschen v GPSSBC 2007 ILJ 375 (LC)Is it unfair to appoint an inferior candidate?Minister of Safety & Security v S & SSBC (2009 : LC)
13 Who bears the onus of proof? How was the case pleaded?In a s 186 case: the employee bears the onus to prove the unfairnessIn an EEA case: the employer must show that discrimination is fairAffirmative actionInherent requirements
14 What are the remedies?Generally no right to a promotion but a right to be considered fairlyRemittal back to employerActual promotionwould have been promoted ‘but for’ the ULPProtected promotionNot appropriate on denial of opportunity to competeIssue of proportionality (harm / benefits)DamagesKwaDukuza Municipality v SALGBC 2009 ILJ 356 (LC) : contrary to a collective agreement, a post was not advertised as required and the prospective applicant did not apply. LC awarded a solatiumAn interdict?
15 Does a claim prescribe?‘No’ – it’s an ongoing ULP’ SABC v CCMA (2009 LAC)‘Yes’ – prescription runs Fredericks v Grobler (2010 : LC)What if an employee resigns before alleging a dispute?Velinov v University of Natal & Others 2006 ILJ 177 (LC) – employee can still refer a ULP disputeMashinini & SA Civil Aviation Authority 2010: CCMA - ULP relating to benefits says not : use another forum
16 SAPS v SSSBC, ROBERTSON NO AND NOONAN NOONAN CASE STUDYSAPSvSSSBC, ROBERTSON NO AND NOONAN
17 THE FACTS Post: Section Head: Evaluation Services (level 9 post) Blind evaluation by selection panel:Did candidates meet requirementsScoring: competence, prior learning, experience, EE, performance, suitability and conductNoonan was number 2 of three recommended candidatesNational Commissioner approved appointment of number 1 on the list, Superintendent Matshaya.
18 THE ISSUESMtshaya had failed to disclose previous disciplinary record which would have disqualified him (condoned by Commissioner in terms of SAPS Instruction)Panel erred in scoring Noonan (not disputed by SAPS)But for these errors, Noonan would have been scored first and would have been promoted
19 TASKDid the failure to promote Noonan amount to a ULP relating to a promotion?How should correctness of a decision to promote be assessed?Strict: best candidate should get the jobMore flexible: Management prerogative UNLESS really arbitrary or for unacceptable reasonIf unfair, what remedy?Set aside and start again, protected promotion, actual promotion or compensation
20 THE FINDINGNo right to a promotion except in terms of statutory/contractual right to promotionOnly a right to compete therefore ULP to deny a fair opportunity to competeOnly grounds for scrutiny is to determine whether appointment was arbitrary or motivated by an unacceptable reasonAs long as decision rationally justified, mistakes in evaluation process do not amount to unfairness justifying an interference with the decision to appoint
21 THE FINDINGNo right to promote therefore appropriate remedy is not to appoint the applicant or to grant compensation, but is to set aside the decision and refer it back.EXCEPT:In cases of victimisation or discriminationIf applicant can prove that but for the unfair conduct, she would have been appointed.
22 CONCLUSION Were the mistakes so serious as to nullify the selection? Process was rational despite the mistakes madeNo evidence that the process was rigged or motivated by improper considerationsNoonan not denied fair opportunity to competeNon-disclosure of disciplinary record: not material enough to nullify appointment (SAPS Instruction did not require withdrawal of promotion)
23 CONCLUSION Would Noonan have been appointed? Noonan would probably have been first on the listBut that did not mean he would be appointedCommissioner not obliged to choose first person on the list, could appoint another person or recommend that post be re-advertisedFirst person had no right to or legitimate expectation of appointmentNo evidence of practice to appoint first person on list
24 CONCLUDING REMARKS Prof Cheadle: Delete ‘promotion’ from s 186Amend the Public Service Act to provide for a judicial or administrative remedy for corrupt or inept appointmentsDevelop our law on the implied term of mutual trust and confidenceClarify the CCMA jurisdiction over contractual terms