Have you been overlooked for promotion?

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In 1978 many observers considered Ford Motor president Lee Iacocca to be the obvious candidate for the CEO position that Henry Ford II would shortly vacate. That was not to be. Iacocca not only didn’t get the position — he was also fired! In explaining why he took that decision on Iacocca, Ford famously remarked: “Sometimes you just don’t like somebody.” Sounds familiar, doesn’t it?

The criteria for promotion are often fuzzy, intuitive and unwritten in most organisations. In practice, those responsible for making promotion decisions may be influenced as much by gut feelings and emotions as they are by business logic. Sometimes an outsider is hired even when you thought there was a suitable and aspiring internal candidate. If you have an eye on a senior post you will certainly be angry, frustrated, and unsure of how to get ahead. Promotion decisions seem arbitrary and political, don’t they?

This article unravels the legal implications surrounding an employer’s decision to promote or not to promote an employee. The general rule in employment law is that the employer has the right to appoint or promote employees it considers best or most suitable for a particular position. In most instances, courts and arbitrators have shown a reluctance to interfere with this discretion.

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 as to 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 entails the elevation or appointment of an individual to a position that carries greater authority and status than the current position the current position that an employee is in. 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.

Promotion can become a very sensitive issue in the workplace, especially so when there is more than one aspiring candidates. 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.

In the case of Mogorosi v South African Reserve Bank (case number GAPT 6982/06) heard before the Commission for Conciliation, Mediation and Arbitration (CCMA), an employee had unsuccessfully requested promotion by his employer for a number of years. He eventually resigned and thereafter referred the matter to the CCMA, claiming that the employer was guilty of an unfair labour practice by stifling his career prospects. He based his claim on the fact that he had remained at the same level after nine years of employment. The CCMA dismissed the claim, holding that before an employee can claim to have a legitimate expectation to be promoted, they must prove that they were categorically assured by the employer that they would be promoted.

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 v Bowring and Associates (case number SC 80/87). 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. His dismissal was upheld by the Supreme Court.

It is also wrong to believe that receiving an excellent appraisal rating 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/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 its own agreed promotion policies and procedures. The burden of proof rests on the aggrieved employee to prove the unfairness. The court’s role becomes that of determining whether the employer’s 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 is not enough 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 employer’s 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.

The legal position is, therefore, that no worker has a right to promotion. They only have the right to be considered for promotion. Employers must, however, not use discriminatory criteria in making promotion decisions as this is unlawful.

l Isaac Mazanhi is a labour analyst. He writes in his personal capacity. He can be contacted on email: imazanhi@hotmail.com