Introduction
When an expected promotion does not materialize, especially when another employee or an external candidate is selected, it can lead to significant disappointment and a sense of injustice among employees. This situation is not uncommon in workplaces where promotions are highly valued as recognition of an employee’s loyalty, hard work, and contributions. The emotional impact of being passed over for a promotion can be profound, often resulting in feelings of resentment, demotivation, and even betrayal, particularly if the employee believes that they were the most qualified or deserving candidate.
From the perspective of the employee, the anticipation of a promotion is often tied to more than just an increase in salary or benefits. It represents a validation of their efforts, skills, and dedication to the company. When this recognition does not occur, the employee may feel undervalued, questioning their future within the organization and their career trajectory. This can lead to decreased morale, reduced productivity, and in some cases, a decision to leave the company altogether in search of better opportunities elsewhere.
The Law
The legal framework surrounding promotions adds another layer of complexity to this issue. In South Africa, for instance, the Labour Relations Act (LRA) provides a degree of protection for employees through Section 186(2), which defines an “unfair labour practice” as any unfair act or omission by an employer relating to promotion, demotion, probation, or the provision of benefits. However, it is crucial to understand that the LRA does not grant employees an inherent right to be promoted. The law requires that the promotion process be conducted fairly, but it does not guarantee that an employee will receive the promotion they expect.
Case Law
The case of Department of Justice v CCMA and Others underscores this point. The court in this case clarified that unless there is a specific agreement or legal provision granting the employee the right to a promotion, an employee’s expectation of being promoted is considered a “dispute of interest” rather than a “dispute of right.” In other words, while employees may desire a promotion and believe they deserve it, this expectation alone does not constitute a legal right.
However, the employer’s obligation to ensure fairness in the promotion process is critical. An unfair labour practice, as defined by Section 186(2), occurs when the employer fails to act fairly in promoting or selecting candidates for a position. This means that any perceived unfairness in the process, such as favouritism, bias, or a lack of transparency, can be challenged by the employee through legal channels like the Commission for Conciliation, Mediation, and Arbitration (CCMA) or a Bargaining Council.
A notable example of this is the case SAMWU obo Mzamo / City of Cape Town (2009) 18 SALGBC 6.9.8, where the applicant argued that it was unfair for the employer not to shortlist him for a second round of interviews after he had been found unsuitable in the first round. The Commissioner ruled against the applicant, stating that the employer had no obligation to reconsider him after he had already been deemed unsuitable. The ruling highlighted that an employee’s dissatisfaction with not being promoted does not automatically translate into unfair labour practice unless there is evidence of unfair treatment during the promotion process.
Conclusion
While the desire for promotion is a natural and legitimate aspiration for many employees, the legal framework emphasises fairness in the process rather than the outcome. Employees have a right to be treated fairly, but this does not equate to a guaranteed promotion. Employers, on the other hand, must ensure that their promotion processes are transparent, unbiased, and conducted with integrity to avoid disputes and maintain a positive workplace environment.
