The applicant referred an unfair labour practice dispute to the MEIBC, claiming that a legitimate expectation had been created that he would be appointed to the position for which he applied and in which he had been acting. He had accumulated immense experience over the 30 years and there was a duty on the company to recognise this.

The respondent submitted that the employee had not acted in the position, that no expectation was created, that a fair selection procedure was followed in that all candidates were subjected to the same scrutiny and the applicant was found not to be competent.

Commissioner Bracks noted that as a rule employees generally have no right to promotion and the employer has the right to appoint or promote employees whom it considers to be the most suitable.  Turning to people in acting capacities the commissioner further noted that it is trite that employees who act in these higher positions are not automatically entitled to be appointed to such a post. Even where the doctrine of legitimate expectation is raised, the outcome may not be favourable.  What should be taken into consideration, is whether the employer acted unfairly.

The applicant had been found to be incompetent for the position and could not prove that the respondent had acted unfairly in coming to this conclusion.The applicant’s case was based on a legitimate expectation which the company had created and the fact that he had worked himself up through the ranks.  However, he did not convince the commissioner that at the interview he was found by the panel to be competent for the position he was applying for.

The applicant failed to discharge the onus that the failure of the respondent to promote him was unfair.

By Advocate Nicolene Erasmus: nicolene@labourguide.co.za or visit www.labourguide.co.za