I have received a query from a reader who has worked as a trainee supervisor for the last five years, but is functioning as a lower level supervisor at his company.
A programme was introduced in 2004 to allow group/team leaders to develop themselves to become supervisors. The reader initially failed his assessment, but passed it last year.
According to him, he was supposed to be appointed as an entry level supervisor as from December 1 last year, but because the upgrading/promotions deadline was on November 19, he could not be upgraded.
He states that he was appointed by both his manager and senior manager, but did not receive a formal letter of appointment.
Since January this year the company have indicated that they are investigating his situation. Now they say he requires a tertiary qualification, which he does not have, but is studying towards.
During the period when increases were implemented, he was told that his salary had been adjusted to that of the entry level of supervisor, but he is still on his previous level.
He states that his contract makes no provision for tertiary qualifications as a prerequisite for upgradings.
The company policy only states that if he completed the programme successfully, met all the requirements, management was satisfied with his performance and there was a vacancy, then he would be appointed to the entry level.
He is currently performing as a supervisor in a vacant position.
In essence, the reader is dissatisfied that he has not been promoted to a position for which he feels he qualifies and is entitled to.
This situation is covered in the second section of Chapter VIII, section 185, of the Labour Relations Act, which has entrenched the “right of every employee not to be subjected to unfair labour practices”.
The onus, however, is upon the employee to prove the alleged unfair labour practice.
Section 186(2) defines unfair labour practices as: “Any unfair act or omission that arises between an employer and an employee involving –
• unfair conduct of the employer relating to promotion/demotion, probation (excluding dismissals relating to probation), training and provision of benefits;
• unfair suspension or any other unfair disciplinary action short of dismissal;
• failure or refusal to re-instate or re-employ a former employee in terms of any agreement;
• an occupational detriment, other than dismissal, in contravention of the Protected Disclosures Act, 2000, on account of the employee having made a protected disclosure”.
In regards to this specific case, it may amount to unfair conduct relating to promotion. The concept of promotion includes factors such as differences in status, fringe benefits, reporting structures, remuneration, levels of responsibility, etc.
Although management has a prerogative in promoting employees, in order to avoid any act of unfair labour practice, it is essential to ensure that a policy and procedure is in place to guide the process of promotion and that this process and procedure is applied with consistency.
Should the reader be able to prove that the company failed to adhere to their own policies and procedures with regard to promotion or that they have applied it inconsistently, he may very well have been subjected to an unfair labour practice.
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Robert Niemand from LabourNet in Port Elizabeth is a labour law consultant. He is also a part-time commissioner at the CCMA, a labour law and labour relations lecturer and a contributor to various publications.
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