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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article which looks at 'the award of costs against employees of the losing party'. We also discuss three new cases, all in some way connected to the appointment process: The first case considers the scope of an arbitrator to interfere in the decision of a selection committee. The second case is about the legal consequences of an offer of employment made conditional on the results of a security check. The third case dealt with two applications in terms of the Promotion of Access to Information Act for information relating to the selection process.

This public newsletter is a free edited version of the subscriber newsletter.


Challenging an appointment

Perhaps one of the most demoralising events in an employees' career is when told that they have been unsuccessful in their applications for promotion AND the person selected for promotion is, in their assessment, less deserving than they are. The instinctive thing to do is to challenge the decision. That is what many in the public sector do, although less common in the private sector.

One of the problems faced by the unsuccessful applicant is that the arbitrator who hears the dispute was not on the selection panel and so has no sense of comparative applicants, or a nuanced understanding of the sort of person the employer was looking for. What then can an arbitrator do? In a recent case the LAC had to consider whether an arbitrator acted properly in declining to change the interview scores of the unsuccessful applicant.

The employee applied for promotion to the post of Captain in the SAPS. During interviews SAPS used a scoring system based on three criteria - (a) competency (based on the interview questions and answers), (b) prior learning, training and development and (c) a record of previous experience. On (b) there were points for matric and other subsequent qualifications. Another candidate was recommended and appointed. The employee challenged the decision in arbitration, where the arbitrator paid attention to the requirements for promotion including experience. He was satisfied that the employee had a fair opportunity to compete for the post and that any errors were not such as to vitiate the process. He was satisfied that the appointment of the successful applicant was rationally justifiable, and he held that no unfair labour practice had been committed.

On review, the Labour Court awarded the employee an extra point for prior learning (it said that the applicant's LLB degree had not been scored correctly) but although unhappy with the score awarded by the panel for experience, awarded him compensation and not 'protective promotion' (ie the benefits but not the status of the new post). The LC did not rule that the employee should have been appointed.

On appeal, in Ncane v Lyster NO and Others (2017) 38 ILJ 907 (LAC); [2017] 4 BLLR 350 (LAC), the employee argued that as the procedure had been ruled unfair, he should have been granted 'protective promotion'. In the course of its judgment the LAC said that in the interests of good labour relations, employers must when considering candidates for promotion adhere to the law and apply objective criteria in accordance with a fair procedure. When it comes to evaluating the suitability of a candidate for promotion, an employer must act fairly. But the LAC also acknowledged that this is not a mechanical process and that there is a justifiable element of subjectivity or discretion involved. It is for this reason that the discretion of an arbitrator to interfere with an employer's substantive decision to promote a certain person is limited, and an arbitrator may only interfere where the decision is irrational, grossly unreasonable or mala fides.

But the LAC did qualify this by saying that where an employer provides that certain rules apply to the decision to promote or to recommend a candidate for promotion (eg in this case, the employer's rules said the candidate who scores the most points must be recommended by the panel), an employer will be held to this. A failure to comply with the rules may result in substantive unfairness. Applied to this case, the apparent error in scoring could have resulted in unfairness, but the LAC pointed out that as the degree completed by the employee was at an undergraduate level, he had in fact been scored correctly. The LAC held that the decision reached by the arbitrator was a reasonable one, and the appeal was dismissed with costs.

This was an unhappy ending for the unsuccessful candidate. But the case is a warning to others aggrieved by a promotion decision. The arbitrator cannot take over the selection panel's role and rescore the candidates. The principle is clear: An arbitrator's right to interfere with an employer's substantive decision to promote a certain person is limited to where the decision is irrational, grossly unreasonable or mala fides. This principle, together with the court's endorsement that there is a justifiable element of subjectivity or discretion, may make it difficult for unsuccessful candidates to persuade an arbitrator to set aside an appointment.

Employment conditional on a security check

Ideally security and other checks should be done before interviews, but many employers wait until after interviews to see if it is necessary to go through what is a rather laborious and time consuming process. These days it is routine for checks to be done on the criminal record, debt situation, valid qualifications and previous work experience of a candidate. In addition some employers check the Facebook entries of an applicant to learn more about the person.

This trend to only do the various checks after the interview can lead to a conditional offer - "we offer you the job on condition your checks are satisfactory". If the employee accepts a conditional offer, what is being accepted? And if the offer is withdrawn because of unsatisfactory check results, is this a dismissal? These issues arose in a recent case.

After being interviewed for an advertised post, the appellant accepted a written offer of appointment as protection officer on a three-year fixed-term contract with a six month probation period. The offer was subject to a "vetting and screening process" then being conducted by the municipality, and stipulated that the contract would be "automatically terminated" if the outcome was negative.

After the contract was concluded, the employee was informed that it had been established that information relating to him, supplied by his former employer, the SA Police Service, had "displayed dishonesty". As a result, his contract was terminated.

The employee claimed that he had been unfairly dismissed. A bargaining council arbitrator ruled that the appellant had not been dismissed, and that ruling was upheld on review by the Labour Court. The employee contended that the arbitrator had erred by finding that his contract had terminated automatically and that this did not constitute a dismissal.

On appeal at the LAC, in Nogcantsi v Mnquma Local Municipality and others [2017] 4 BLLR 358 (LAC), it was noted that it was correct that the Labour Court had in previous cases ruled that employers may not "contract out" of the unfair dismissal provisions of the LRA. But in this case it was not the act of the municipality which triggered the negative vetting result; it was the negative information provided by the SAPS. The LAC concluded that this case was distinguishable from others, because the municipality had not caused the dismissal. The employee argued that the termination clause was invalid because he was denied the right to a hearing before the termination clause was invoked. The LAC did not agree, pointing out that this was not a case of a breach of the employment contract because of misconduct.

The LAC put it like this: A condition is not a term of a contract: it is an external fact on which the existence of the contract depends. A conditional contract of employment is a commercial reality, and is not in conflict with the LRA - there is no contract if the condition is not fulfilled. What matters, the LAC said, is whether the employee is denied a right conferred by the LRA, and that was not the case here. The employee's argument that a hearing might have revealed that the termination clause was invoked for ulterior purposes, was purely speculative. If the employee had disclosed the information contained in the SAPS report at the time of his interview, he could have tried to explain it away. But he chose not to do so. Instead, he had freely and voluntarily agreed to the vetting process. The commissioner could not be said to have erred by finding that he had not been dismissed. The LAC accordingly dismissed the appeal with costs.

Rights of an unsuccessful job applicant

Consider two scenarios:

  1. You've applied for a job and have heard nothing. The job advert in fact said that if you haven't heard from the employer within 4 weeks you must assume that you've been unsuccessful. You are disappointed because you don't have a clue why you weren't even short-listed. You think you met all the requirements for the job: what can you do?
  2. You've been shortlisted for a job but unsuccessful after the interview stage. When you discover who was appointed you are convinced that the decision was wrong. Again, what can you do?

These two scenarios arose in a recent High Court case where the court decided to handle them both in the same judgment, providing useful guidelines on the limitations of the Promotion of Access to Information Act 2 of 2000 (PAIA) to obtain information about the selection processes. In Belwana and Another v Eastern Cape MEC for Education and Another (306/16, 349/16) [2017] ZAECBHC 3 (18 May 2017) the High Court distinguished between the two applicants: one was not shortlisted, but the other was and participated in the interview process.

The first applicant who was not shortlisted had requested in terms of PAIA to be furnished with the score-sheets, minutes and the deliberations of an interview panel presiding. She was refused access to the interview records because she was not a participant. The court said that there is no valid reason why an unsuccessful applicant for a job should be entitled to information in terms of the PAI Act regarding a process that she was not shortlisted for or a part of. Where an unsuccessful applicant has not distinguished her position in any way from other unsuccessful candidates there is no obligation to provide the applicant with information of the process.

Even if the applicant had requested documentation relating to the short listing decision, we do not think the Court would have required this. The Court put the PAIA request into this context: "Vacant posts are advertised on a daily basis. With the rate of unemployment in this country, posts are hungrily applied for, often when the applicants do not even meet the criteria. The applications of those who do meet the substantive criteria are often rejected on procedural or other grounds at the outset. This is bound to happen. Employers cannot possibly interview every candidate for every job."

The second applicant was granted access by the High Court to specific documents in terms of PAIA. Distinguishing her situation from the first applicant, the court noted that she was interviewed for the position, provided evidence on the suspect circumstances of the interviewing process (which she had complained of even before the final decision was made), and made a case of why the information she requested would assist her in assessing if the decision was irrational or male fides.


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Bruce Robertson
June 2017
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