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Small Business South Africa - Labour Related Issues for Small Business South Africa

From time to time employees are asked to act in vacant roles while suitable candidates are sought to fill them. It is a common and legitimate business practice. However, some employees in these acting roles may feel that they deserve to be appointed or promoted into the positions in which they act, especially where the positions are senior. After all, their employers would have shown confidence in their ability to perform the functions of the positions, which they may even perform quite satisfactorily too. So what happens if an employee does not get appointed or promoted into a senior position in which he/she acted? What if another employee gets appointed into the position? Is this unfair?

Section 186(2) of the LRA recognises that an employer’s conduct relating to the promotion of an employee may amount to an unfair labour practice. In other words, if an employer without any good reason fails to promote a deserving employee, the employee may rightly complain of an unfair labour practice. But it is not that simple.

The fact that an employee is asked to act in a position does not automatically entitle the employee to be appointed or promoted into the position. When there is a gap, an employer will naturally seek to appoint someone to perform the functions while it searches for a suitable candidate to fill that gap. The acting employee may or may not be the right person for the job. Only a fair selection process may determine this.

An employee who is acting in a position only has a right to be considered, along with other suitable candidates, when the employer seeks to fill the position. If another candidate is more suitable for the job, it would not be unfair for the employer to appoint or promote such suitable candidate over the acting employee. Of course, if the acting employee has a legitimate expectation that the employer will appoint or promote him/her into the position, and the employer fails to do so, there may be grounds for an unfair labour practice claim. A legitimate expectation may exist where, for example, the employer has made promises to the acting employee that he/she would be appointed or promoted, or where the employer has an established practice of appointing or promoting acting employees into the positions in which they act.

An acting role should also be temporary. Where an employee is asked or allowed to act in a position for a very long time, it may be unfair to suddenly remove him/her and then appoint or promote someone else into the position. Put differently, acting in a position for a long time may create a legitimate expectation in the mind of the employee that he/she will be appointed or promoted into the position.

Viewed correctly, acting in a role only allows the acting employee a chance, even an expectation, to be considered for the role, but it does not shield the employee from competition from other contenders for the role.

Acting in a role does not guarantee appointment or promotion into that role.

Information provided by Kaizer Moyane,  Chief Consultant: Labour Relations, Sanlam

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