Failure to promote: What are your options?

Recently, a client came to us for advice regarding her Employer’s failure to promote her to a position she felt was rightly hers. Our client was for some time acting in that positon while her Employer sought to find someone to do the job. The client went for an interview amongst other candidates and was thereafter rated according to a certain criteria set by the Employer for e.g. what is required of the job and any past experience the candidate has. The client did not receive the promotion even though she was the most successful candidate out of all three as she had scored the highest ranking, especially considering that she had been acting in that position for 6 months prior to the interview. We advised and assisted our client in following the correct internal grievance procedures however it did not return a successful outcome as the Employer did offer to pay a part of our client’s acting allowance, but our client feels entitled to full payment and the promotion. We thereafter assisted the client in submitting a dispute referral to the relevant council and are now awaiting the outcome certificate from the Conciliation that took place.

General:

Usually applicants for a job consider themselves to be the best qualified and believe they can do the job better than anybody else, thus the referral of disputes from those applicants or existing employees who failed to be given the post are inevitable. When a person feels aggrieved about not receiving a promotion they feel was due to them, such person needs to follow the correct process in order for the dispute to be resolved effectively. The aggrieved person must have proof that they were the most successful or even ranked higher than the person who did receive the promotion. Thereafter the aggrieved should first refer their dispute internally, if such procedures apply, before referring it externally. If the dispute is not resolved internally then they may refer to the relevant council, such as the CCMA. One must take note that the referral to the CCMA needs be sent within the 90 day time period that is set for Unfair Labour Practice disputes. One must also note that a failure or refusal by the employer to promote an employee into a higher post must constitute an unfair action by the employer, thus the term “unfair labour practice”. If you fail to submit your referral within the time limit, you will have to apply for Condonation and this might complicate your case. We therefore advise that if you, as an Employee, feel aggrieved by your Employer’s failure to promote, you should act swiftly and ensure that you follow all the necessary steps so that you have the best chance at success.

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