On an almost daily basis, vacant posts arise in an organisation due to expansion of the business, death of an employee, transfer, retirement, resignation, dismissal and so on.
Such openings are usually filled in by promoting qualified candidates from within the organisation.
In the absence of suitable internal persons, the organisation has to cast its net wider into the external labour market through the use of employment agencies, headhunting and advertising among other means.
Promotion entails moving an individual to a higher level job in an organisation.
Such elevation usually brings with it an increase in salary and perks, higher status, a greater demand of skills, abilities and responsibilities.
The most common criteria for promotion used by employers include seniority of an employee based on length of service or performance ratings.
The question which seems to vex most employers and employees alike is whether promotion is a legal right.
Generally, contracts of employment do not include the right to be promoted or appointed to the next higher grade.
The Labour Act is also silent on that aspect.
Cases decided in South Africa and elsewhere indicate that it remains the prerogative of the employer whom he intends to appoint to a higher post.
It must be pointed out, however, that the employer is obliged to act fairly towards every employee in the selection and promotion process.
In the absence of bad faith or where the decision relating to the promotion is fundamentally flawed, the law will not interfere with the exercise of the discretion.
Otherwise the employee’s expectation to be promoted constitutes a dispute of interest as opposed to a dispute of right.
In terms of our law, a dispute of interest arises when an employee desires something but is not (yet) legally entitled to it.
Promotion can become a very sensitive issue in the workplace, especially so when there is more than one eligible candidate for consideration.
There are cases where an employee has eagerly awaited the perceived long overdue promotion, as recognition for years of loyal service.
When another person is appointed to the post, the employee becomes aggrieved.
Some employees wrongly believe that because they are already employed in a particular department, or have acted in a post for such and such a period, they have an automatic right to be promoted, ahead of other applicants.
This is not so. A relevant and interesting case in Zimbabwe is the Supreme Court case of Matereke versus Bowring and Associates (case number 80 of 1987).
Matereke believed he had been overlooked for promotion to a particular post.
In order to enforce his “rights”, he simply took up the post and moved into the office.
When it was explained to him that he was not eligible for the position, and that he should vacate the office within a stated time period, he refused to budge.
He was dismissed by his employer for refusing to obey a lawful order. The Supreme Court upheld his dismissal.
It is also wrong to believe that receiving excellent ratings in a performance appraisal or successfully completing a professional qualification will entitle one to an automatic promotion.
At best, it only increases one’s chances of promotion.
Other factors may be considered, such as the applicant’s attendance record, disciplinary record, or whether one has the right attitude.
Zimbabwean labour law makes it clear that in instances where candidates have the same qualifications, skills, knowledge and abilities, they should be treated equally irrespective of colour, political opinion, gender, place of origin, HIV and Aids status and so on.
To successfully challenge a promotion decision, the aggrieved employee has to show that they were overlooked for promotion on the basis of unacceptable, irrelevant and discriminatory criteria or that the employer is reneging on his/her own agreed promotion policies and procedures.
The burden of proof rests on the aggrieved employee to prove the unfairness.
The courts’ role becomes that of determining whether the employers’ exercise of discretion was made in compliance with the anti-discrimination laws or the policies and procedures it established for handling such matters.
When an employee feels discriminated against, it does not suffice to simply state that he or she is qualified for the job.
They should go further to prove that they have the necessary skills, qualifications and experience, in comparison to the individual who was appointed for the job.
They will also have to prove that the decision not to appoint them was unfair, unreasonable or unwarranted and the employers’ actions were frivolous and arbitrary.
An aggrieved person who feels they have been unfairly discriminated against by an employer in relation to a promotion decision may seek recourse from the law.
In terms of section 5 of the Labour Act, where the employer is found guilty, the courts may order payment of damages to the employee for any loss caused directly or indirectly as a result of the employers’ actions or omission.
The employer may also be ordered to appoint the employee to the post in dispute irrespective of the fact the post has already been filled.
This will be costly to the employer especially where two people end up in the same post and the employer has to terminate the services of one of them.
In a nutshell, a worker has no right to promotion but employers must not use discriminatory criteria in making promotion decisions as this will be unlawful.
l Isaac Mazanhi is a labour analyst. He writes in his personal capacity. He can be contacted on e-mail:
email@example.com or cell: 0773 063 653