By Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawvideos.co.za
The Code of Good Practice: Dismissal in Schedule 8 of the LRA explains that warnings are corrective measures for teaching employees the employer’s standards of conduct and work performance and for giving them a chance to improve. Employers too often misuse disciplinary warnings or avoid using them at all because they are unsure of what the law sees as appropriate.
When candidates are considered for promotion it is essential that they are all scored on the same fair basis. Where an applicant is refused promotion based on a faulty scoring system this will be found to be unfair.
The courts are not impressed by reasons for refusing promotions that stem merely from bureaucratic rules or arbitrary methods for assessing the candidates.
It is a very common problem that managers struggle to base their decision-making purely on facts and rationality. The reasons for this may include the facts that:
- Managers are not properly aware that their management prerogative or right to use management discretion is limited by the law
- Managers sometimes assume that the employees concerned will not dare to question their decisions because ‘might is right’
- Managers dislike the candidate and find a spurious reason for excluding the employee
- The employer fails to assess all applicants consistently.
In the case of Hendricks vs Northern Cape Gambling Board (Lex Info 11 August 2025. Labour Court case number C533/2022) Hendricks applied internally for one of six Compliance Inspector posts. One of the 6 panel members recused himself because he knew Hendricks personally. As a result Hendricks was given the promotion assessment scores of the other 5 panel members plus an averaged score in lieu of the 6th member who had recused himself. However, the said average score he was given was 1.2 instead of 20; and he was therefore rejected by the panel.
At Labour Court, where the case went on review after arbitration, the employer was unable to explain how they arrived at the grossly incorrect average score of 1.2. The court found that, had the employee been given the correctly calculated average score of 20 in lieu of the recused panellist, he would have scored a close second to the top scorer. As there had been 6 vacancies he would have been promoted.
Despite the employee having explained the gross incorrectness of the average score calculation the employer opposed the Labour Court review application.
The Court found the employer’s case so weak that it required the Gambling Board to pay all the employee’s costs. The employer was also ordered to promote Hendricks and to pay him the difference between his old remuneration and the remuneration he should have received in the new job between the date on which he should have been promoted in 2016 to the date of the award. My calculation of this backpay of 114 months comes to R1 447 847.
Thus, the employer had to pay the employee nearly 1.5 million rand, plus his legal costs and to promote him because:
- It had used the wrong basis for calculating the employee’s assessment score; and
- It ignored the explanation of the gross and obvious inaccuracy of the calculation; and
- It failed to explain to the Court how it arrived at its preposterous average figure of 1.2.
This hugely expensive outcome makes it clear that those responsible for promotion decisions must be trained on how to calculate candidate assessment scores fairly and correctly, and on the employer’s obligation to explain why the employer’s calculations were fair.
The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve labour law knowhow at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.
A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.
This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss.
To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za or contact Ivan on ivan@labourlawadvice.co.za
