Van Dyk v Kouga Municipality (LC P476/09 10 April 2012)

Principle:

The failure to appoint the best qualified candidate will not be unfair where short-listing is done on the basis that the appointee in a designated group has the capacity to acquire the minimum qualification within a reasonable time, unless the qualification is a legal pre-requisite.

If the deviation in the interview scores between candidates is not pronounced, it cannot be said that racial bias is self evident.

Facts:

The applicant, a white male, had been employed by the municipality in the fire department from 1989 to 2003. At the time of his resignation he had been promoted to platoon officer. When the same post as platoon officer became vacant in 2009 he applied for the position. The post was first advertised internally but no appointment was made. The post was then advertised externally but no one was appointed. When it was advertised externally for the second time the applicant was allegedly informed by the respondent's HR manager that he would have to be appointed as he was the only person with the necessary qualifications.

When he went for an interview he discovered that two other persons had been short-listed, including a coloured woman employed by as a senior fireman. She however did not have a certificate issued by the SA Fire Services Institute; of the candidates, only the applicant had this qualification, a requirement for the job. There were three panellists who scored the candidates, the applicant coming second after the coloured woman who was appointed. Aggrieved by this decision, the applicant claimed that he was unfairly discriminated against and claimed that only one of the panellists was qualified to assess the candidates' skills and that his scoring should have been decisive. He contended further that the fact that the successful candidate did not meet the requirements for the post she should not have been short-listed.

The court held that it often happened that an interview panel would not consist only of specialists in the relevant field of expertise. Whist appropriate expertise was vitally important, other factors such as interpersonal relationships might also play a role. On the face of it, the experienced panellist did not think that the successful candidate could not do the job. As to the short-listing, the court held that this had been done on the basis that she had the capacity to acquire the minimum qualification and she was not regarded as unsuitable merely on this basis. The reason for her short-listing was in terms of the criteria under s 20(3)(b), (c) and (d) of the Employment Equity Act and this was legitimate in the absence of any legal pre-requisite that she had to have the certificate to perform the platoon officer's job. The claim was dismissed.

Extract from the judgment:

[13]   Obviously, the applicant is correct that if the other two candidates had not been short-listed, in all probability he would have been appointed. The respondent's explanation for short-listing the other two candidates was that in terms of clause 4.4 of its Recruitment Selection and Retention Policy of June 2008, the provisions of section 20 (3) of the Employment Equity Act 55 of 1998 ('the EEA') should be taken into account when the recruitment and selection process is undertaken. Section 20 (3) of the EEA states:

"20(3) For purposes of this Act, a person may be suitably qualified for a job as a result of any one of, or any combination of that person's-
  1. formal qualifications;
  2. prior learning;
  3. relevant experience; or
  4. capacity to acquire, within a reasonable time, the ability to do thejob."
[14]   Accordingly, the respondent's explanation for short listing Rossouw was that even though she did not hold the graduate certificate qualification required by the post it was believed that she had the capacity to acquire the ability to do the job within a reasonable time. According to the evidence of Baartman, Rossouw has obtained the graduate certificate since her appointment.

[15]   Although the respondent relied on employment equity considerations in drawing up a short-list of candidates, it maintains that when it came to the assessment of the short-listed candidates by the interview panel, the recommendation was made purely on the basis of the overall score achieved by the three candidates. Hence, Rossouw was recommended for appointment not because of affirmative action considerations but because she was found to be the best candidate by the panel from amongst the short-listed candidates. The applicant queried the short-listing of Rossouw on the basis of her potential to be able to do the job at the time of the interviews. He reasoned that since she had been working in the fire department for several years without obtaining the certificate qualification, there was no reason to suppose at the time of the short-listing that she would do so within a reasonable time if she was appointed.

[16]   However, an implication of following the provisions of section 20 (3)(b),(c) and (d) of the EEA, was that the selectors compiling the short-list only needed to be satisfied that the candidates had the capacity to acquire the ability to do the job, which does not necessarily mean attaining a formal qualification. In a case where the post in question, by definition, requires a candidate to have a particular qualification, then the employer's reliance on the provisions of section 20(b)-(d) to short-list a candidate would probably not be possible, for example, in the case of filling of a doctor's post. However, in this instance, although the qualification was listed as one of the requirements of the post, I was not referred to any legal requirements stating that a person may only be appointed to a platoon officer's post if they already have the graduate certificate qualification.

[17]   The applicant argued that because Barnard was the only person qualified to assess the candidates' skills and capability, his scoring should have been accepted. However, it will probably happen more often than not that an interview panel will not consist only of specialists in the relevant field of expertise. It cannot be expected that every interview outcome will only be determined by persons who have the same or greater level of specialist knowledge and expertise required of the candidate. It may be advisable that a specialist's knowledge would be given more weight particularly in relation to the minimum competencies a candidate must demonstrate, but the views of non-experts on an interview panel are not irrelevant. Appropriate expertise is vitally important, but other factors such as interpersonal and communication abilities may also play a roll in selecting the most appropriate candidate. If Barnard's scoring of Rossouw is considered, it is clear that despite her lack of a graduate certificate, he rated her highly relative to Van Dyk. On the face of it, it cannot be said that Barnard thought she could not do the job.

[18]   If the deviation in the scoring between the candidates was much more pronounced and if the pattern of scoring on individual questions was more uniform it might be possible to infer some bias in operation, but it cannot be said on the scores obtained in this case that racial bias is self evident, or that the pattern is so clear that a good explanation would be required to dispel the appearance of bias. I certainly cannot be confident that the applicant has established a prima facie case of differential treatment based on race or sex.

[19]   In so far as the applicant tendered evidence of the improper motives of Baartman, I am unable to say he tendered sufficient evidence to persuade me that his version was more probably true than Baartman's. Moreover, his belated reference to Baartman's alleged comments about Barnard raises a doubt about the authenticity of his evidence about Baartman's alleged utterances.

[20]   It is true that Rossouw would not have been appointed if she had not been short-listed. It is also true that, at the time of the interviews, the applicant was the best qualified candidate. However, Rossouw's short-listing was done on the basis that she had the capacity to acquire the minimum qualification, and in the interviews even Barnard clearly did not regard her as unsuitable. The reason for her short-listing in terms of the criteria under section 20 (3)(b),(c) and (d) of the EEA was legitimate, in the absence of any legal pre-requisite that she had to have the graduation certificate to perform the platoon officer's job.

[21]   In the circumstances, I am not satisfied that the applicant has succeeded in establishing a prima facie case of unfair discrimination based on race or sex arising from the respondent failing to employ him as a platoon officer and appointing Rossouw instead.