Cases listed under subject matter

Apointments and the selection process

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Alexandre v Provincial Administration of the Western Cape Department of Health (2005) 26 ILJ 765 (LC)

Reliance on the race of an applicant for employment is legitimate and does not amount to racial discrimination. It is in accordance with section 6(2)(a) of the EEA and is not unfair discrimination.

Bensch v Phalaborwa Transitional Local Council [1997] 9 BLLR 1163 (LC)

If an advertisement is placed for an existing post filled by an employee, it may be an unfair labour practice.

Department of Justice v CCMA & others [2004] 4 BLLR 297 (LAC)

If an employee's appointment to a post amounts to that employee being appointed to a higher rank or position, that is promotion.

Du Preez v Minister of Justice and Constitutional Development & others [2006] 8 BLLR 767 (SE)

Where affirmative action has the effect of the absolute inclusion of designated group members to the absolute exclusion of the non-designated group, this does not meet the constitutional requirements of fairness and proportionality.

Ekurhuleni Metropolitan Municipality v Mabusela N.O. and Others (JA 56/21) [2022] ZALAC 112 (13 October 2022)

If a power that was given to be exercised by a particular official was exercised by another official, who was not authorised by law to do so, such exercise would be illegal or unlawful.

Ethekwini Metropolitan Municipality: Durban Metropolitan Police Services v Khanya and Others (DA9/2012) [2014] ZALAC 48 (18 September 2014)

It is the employer's prerogative to set the inherent requirements for a job, but these may not conflict with the LRA or Constitution.

G4S Secure Solutions (SA) (Pty) Ltd v Ruggiero N.O. and Others (CA2/2015) [2016] ZALAC 55 (25 November 2016)

An employer is entitled to full disclosure of all relevant information by a prospective employee in a position of trust. Dismissal is fair even where the misrepresentation is discovered after 14 years and a good service record.

Henn v SA Technical (Pty) Ltd (2006) 27 ILJ 2617 (LC)

It is not unfair discrimination to differentiate between groups within the designated groups, and to implement an affirmative action policy.

Magistrates Commission and Others v Lawrence (388/2020) [2021] ZASCA 165 (2 December 2021)

At the shortlisting stage of an appointment process, legislation does not permit a targeted group approach. A process which is inflexible and quota-driven and mechanistic excludes one group, amounts to not considering an application at all.

Mashegoane & another v University of the North [1998] 1 BLLR 73 (LC)

A position that has real meaning and power attached to it and is of a higher status with more responsibilities, amounts to a promotion.

McPherson v UKZN & another [2007] JOL 20803 (LC)

It may be unfair discrimination to limit the eligibility for a post to existing permanent staff.

Ndlovu v CCMA & others [2000] 12 BLLR 1462 (LC)

It is insufficient for purposes of an unfair labour practice, to show an employee was sufficiently qualified. The employee must show that the employer's decision to appoint somebody else was unfair.

Newcastle Municipality v Nzimande and others [2021] 1 BLLR 94 (LC)

Where an appointment covered by the Municipal Systems Act 3 of 2000 is made irregularly, it may be declared invalid and set aside.

NUTESA v Technikon Northern Transvaal [1997] 4 BLLR 467 (CCMA)
  1. If a promotion is unfair, an arbitrator may only set aside the appointment if the person appointed is a party to the arbitration.

  2. If an appointing body intends to deviate from any material requirement appearing in an advert, the position should be readvertised
Reynhardt v University of South Africa (2008) 29 ILJ 725 (LC)

Where an affirmative action policy provides that once equity targets have been met, merit shall be the sole criterion, it will be unfair discrimination to continue to use race or gender as a criterion for appointment.

Public Servants Association obo Thorne v Department of Community Safety (Western Cape) and Others (CA07/2017) [2018] ZALAC 24 (8 June 2018)

In setting appointment criteria for a post, an employer is allowed to set educational standards which it believes are reasonable.

Sedibeng District Municipality v South African Local Governing Bargaining Council and Others (JR 1559/09) [2012] ZALCJHB 45 (31 May 2012)

Not every consideration in the selection of a candidate for employment or promotion needs to appear in the advertisement. The exclusive reliance on polygraph test results, in the absence of any other information placing a question mark over integrity, is unfair.

South African Post Office Ltd v Commission for Conciliation Mediation and Arbitration and Others [2011] ZALAC 16; JA 56/06 (03 August 2011)

An arbitrator may not disregard the requirements of an advertised post or the fact that an applicant has provided false information which renders the minimum requirement for the post irrelevant.

Willemse v Patelia NO & others (2007) 28 ILJ 428 (LC)

Affirmative action measures should not be applied in an arbitrary or unfair manner. Employers should consider factors such as skills and efficiency, and not just past disadvantage. The failure to consider disability may render the appointment unfair.