Hi Wouter

Section 186(2)(a) of the Labor Relations Act (LRA) provides that an "unfair labour practice" means any unfair act or omission that arises between an employer and an employee, involving unfair conduct by the employer relating to promotion. This section makes it clear that when an employer acts unfairly in relation to the promotion or non-promotion of an employee, such conduct or omission will amount to an unfair labor practice.

Section 23 of the Constitution guarantees the right of every employee and employer to fair labor practices.

The question of when is the employer's conduct relating to a promotion considered to be unfair has led to much legal debate and consideration by the Labor Court and forums established in terms of LRA.

In Mashegoane & another v University of the North the Labor Court described promotion as "being elevated or appointed to a position that carries greater authority and status than the current position that the employee was in".

The court extended the definition of promotion to include the non-appointment of employees to newly created posts, provided the appointment to such a new post would have elevated the employee's status.

The general rule in employment in law is that the employer has the right to appoint or promote employees it considers best or most suitable for a particular position. CCMA arbitrators have shown a reluctance to interfere with the employer's discretion on whether or not to promote an employee.

The courts have held that though it may not be easy to justify preferring one candidate over another, the employer is expected to at least state his reasons for promoting preference decision.

In SA Municipal Workers Union obo Damon v Cape Metropolitan Council the court held that the process of selection inevitably results in a candidate being appointed and the unsuccessful candidates being disappointed, and that it was not unfair to do so.

The question whether an employee has a legitimate expectation to be promoted was the central issue in Mogorosi v South African Reserve Bank. In this case the employee had requested promotion by the employer for a number of years, without success. Finally tired of this, he filed a grievance and thereafter referred the dispute to the CCMA, claiming that the employer was guilty of an unfair labor practice, because he had a reasonable expectation of promotion, which had unreasonably been frustrated by the employer. The commissioner found that before an employee can claim to have a legitimate expectation to be promoted, he must prove that he was given a categorical assurance by the employer that he would be promoted.

In the circumstances if an employee wants to prove that he has a legitimate expectation to be promoted he must convince a decision maker that the employer among other things assured him that he would be promoted. In this context legitimate expectation means that an employee is only entitled to a hearing and does not guarantee that he will be the promoted.

My view is that you will have justified grounds to approach the Labour Court in this regard. You have a very strong case on the merits.

Regards

Johann