When is the employer’s decision about promotion reviewable?

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 promotion • What 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 : LAC • o/oh PSA v Northern Cape Provincial Administration 1997 : CCMA • Appointment to an advertised post in another department? • PSA obo Jordaan & Gtng Dpt of Transport & Public Works 2003 :GPSSBC • Applying for a position after merger / restructuring exercise? • City of Cape Town v SAMWU obo Jacobs & Others 2009 : LAC • NOTE:- unfairness must be committed by employer • Reddy v KZN Dept of Education & Culture 2003 : LAC

6. (2) different jobs or grade levels • Regular evaluation and level progression • Other forms of promotion include an advancement in: • Remuneration levels • Fringe benefits • Levels of responsibility / authority / power / job security • Status : De Villiers v SAPS 2002 : BC • What about: • A mentoring program? Pillay v Dept of Education 2003 :GPSSBC • Incorrect 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 fairness • Substantive fairness • NB distinction : unlawful conduct or otherwise unfair conduct • Different 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 faith • The 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 action • Gcaba v Minister for Safety & Security 2009 ILJ 2623 (CC) • Mkumatela v NMMMunicipality2010 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 disputes • Therefore 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 unlawful • An employment practice that is discriminatory is unlawful • Solidarity obo Barnard v SAPS 2010 : LC • Mashamba v Netcare 2010

10. Procedural defects • Procedural defects can be either unlawful or otherwise unfair • Applicants have a right to be considered • Not adhering to contract, policy or procedure • George v Liberty Life Assoc of Africa Ltd 1996 : IC • Element of bad faith not a requirement • Recruitment and promotions in the public sector • Public Service Act & the Public Service Regulations • SAPS Act, Regulations & National Instruction 1/2004

11. Defects and irregularities • Promotion without advertising • Mthembu & Another / SAPS & Another 2010 : BCA • Appointing a person without the minimum qualifications • MEC, Department of Education, KZN v Khumalo 2010:LC • Procedural irregularities in the interview process • Minister of Safety & Security v S&SSBC 2010:LC • Legitimate 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 unfairness • In an EEA case: the employer must show that discrimination is fair • Affirmative action • Inherent requirements

14. What are the remedies? • Generally no right to a promotion but a right to be considered fairly • Remittal back to employer • Actual promotion • would have been promoted ‘but for’ the ULP • Protected promotion • Not appropriate on denial of opportunity to compete • Issue of proportionality (harm / benefits) • Damages • KwaDukuza 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 solatium • An 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 dispute • Mashinini & SA Civil Aviation Authority 2010: CCMA ­- ULP relating to benefits says not : use another forum

16. NOONAN CASE STUDY SAPS v SSSBC, ROBERTSON NO AND NOONAN

17. THE FACTS • Post: Section Head: Evaluation Services (level 9 post) • Blind evaluation by selection panel: • Did candidates meet requirements • Scoring: competence, prior learning, experience, EE, performance, suitability and conduct • Noonan was number 2 of three recommended candidates • National Commissioner approved appointment of number 1 on the list, Superintendent Matshaya.

18. THE ISSUES • Mtshaya 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. TASK • Did 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 job • More flexible: Management prerogative UNLESS really arbitrary or for unacceptable reason • If unfair, what remedy? • Set aside and start again, protected promotion, actual promotion or compensation

20. THE FINDING • No right to a promotion except in terms of statutory/contractual right to promotion • Only a right to compete therefore ULP to deny a fair opportunity to compete • Only grounds for scrutiny is to determine whether appointment was arbitrary or motivated by an unacceptable reason • As long as decision rationally justified, mistakes in evaluation process do not amount to unfairness justifying an interference with the decision to appoint

21. THE FINDING • No 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 discrimination • If 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 made • No evidence that the process was rigged or motivated by improper considerations • Noonan not denied fair opportunity to compete • Non-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 list • But that did not mean he would be appointed • Commissioner not obliged to choose first person on the list, could appoint another person or recommend that post be re-advertised • First person had no right to or legitimate expectation of appointment • No evidence of practice to appoint first person on list

24. CONCLUDING REMARKS • Prof Cheadle: • Delete ‘promotion’ from s 186 • Amend the Public Service Act to provide for a judicial or administrative remedy for corrupt or inept appointments • Develop our law on the implied term of mutual trust and confidence • Clarify the CCMA jurisdiction over contractual terms