Promotions may mean sulks, but the law is on boss’s side

Many arguments arise in the workplace regarding promotion. Most employees are of the opinion that, because they are already employed by that company, or have a number of years' experience in the job just below the vacant post, they are entitled to be promoted, or that they are entitled to receive preference above any other applicants. This is not so. An employee does not have any legal entitlement to be promoted to a higher post — unless there are conditions contained in the employment contract regulating promotion.

Employers are perfectly free to choose who they want to fill any vacant post, whether it is a promotion or not. This, however, does not negate the normal requirements of recruitment and selection and, very importantly, the requirement of fairness and objectivity. Promotion means an elevation to a higher post, usually with an attendant increase in salary and benefits, and probably an increase in duty and responsibility as well. An elevation in status may also be included.

Therefore, the so-called "lateral transfer" is not a promotion. One must also note that a failure or refusal by the employer to promote an employee into a higher post may constitute an unfair action by the employer. But, if the employer can show that the selection was made fairly, reasonably and lawfully, then there cannot be a dispute of unfair labour practice.

Often, there are several applicants for the post from employees within the organisation. The employer must make a decision, in terms of the requirements of the job, about the necessary qualifications and prior experience. Obviously, when considering the applications from existing employees, the employer will also take into consideration other factors, such as the applicant's attendance record or disciplinary record, past loyalty to the company and efforts to contribute value to the growth of the company and so on.

Although generally an employer would not be able to measure such criteria when considering an outsider, it would be natural for the employer to consider such criteria for existing employees. The consideration of such criteria would in fact count in favour of internal applicants for the post and it would be ludicrous to suggest that the employer may not consider such factors in his deliberations on deciding who is the most suitably qualified applicant for the job.

But disputes will arise, because all applicants for the job consider themselves to be the best qualified. All applicants consider that they can do the job better than anybody else and therefore the referral of disputes from those applicants or existing employees who were not appointed are inevitable.