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

Principle:

In the setting of appointment criteria in relation to the requirements of a post, an employer is allowed to set an educational standard which it believes is reasonable for the requirements of the post.

Facts:

The Department of Community Safety (Western Cape) advertised the post of Deputy Director: Security Support Services, Strategic Planning and Knowledge Management. The job advertisement stipulated three minimum requirements: (i) an appropriate tertiary qualification at NQF level 6; (ii) a minimum of three years' management experience; and (iii) a valid driver's licence.

Ms Thorne, an Assistant Director: Security Support Services in the Department applied for the post. She had acted in the post for 7 years and thus in effect sought promotion to the post she had occupied in an acting capacity for an extensive period.

Ms Thorne was shortlisted and then interviewed for the post by the Department's selection panel. Subsequent to scoring, Ms Thorne was nominated as the preferred candidate. It later emerged that Ms Thorne had not met the requirements of the post. Ms Thorne's Advanced Certificate qualification at NQF level 6 comprised only 120 credits. The Department maintained that her qualification fell below the minimum of 360 credits required for the post.

Ms Thorne referred the dispute to arbitration. The arbitrator found that the Department had not committed an unfair labour practice. His essential reasoning was that (a) it was never in dispute that the Applicant had the ability to perform the duties of the advertised position; (b) the employer also trusted her to act in this position for several years and nominated her for appointment; (c) acting in a position does not create an automatic right to be appointed; (d) the only reason for non-appointment was because she did not meet their minimum qualification requirements for appointment as Deputy Director.

As regards the different interpretations of what an appropriate tertiary qualification at NQF level 6 is, the arbitrator accepted that the employer always considered the minimum qualification requirement for appointment to this position being a three-year qualification with 360 NQF credits and not a one-year qualification worth 120 NQF credits. The fact that the advertisement did not clearly state a three-year tertiary qualification did not mean that the employer amended the qualification criteria or acted dishonestly or unethically in the process. The arbitrator found that government must be allowed to set reasonable minimum academic qualifications for appointment into certain senior positions, and did not believe it was possible to intervene when an employer has set reasonable minimum academic requirements for appointment. On review, the Labour Court held that the decision of the arbitrator was reasonable and not vitiated by a gross error of law.

On appeal, the LAC held that in setting appointment criteria, the Department is allowed to set an educational standard which it believes is reasonable for the requirements of the post. The goal of professional merit in the public service confers a managerial prerogative to require a three-year or 360 credits qualification at NQF Level 6 for the post of a Deputy Director; and hence it may reasonably be held, as the arbitrator did, that this is what the Department meant in the job advertisement by an appropriate tertiary qualification at NQF Level 6. There was accordingly no merit in the appellant's submission that the Department amended the advertised criteria. The Labour Court judgment's was upheld and the appeal dismissed.

This case is a reminder that in the setting of appointment criteria in relation to the requirements of a post, an employer has a prerogative to set an educational standard which it believes is reasonable for the requirements of the post. But we do think an employer must be able to substantiate a rational link between the required qualification and the inherent requirements of a job.

Extract from the judgment:

(Murphy,AJA:)

24.   In the setting of appointment criteria in relation to the requirements of a post, the Department is allowed to set an educational standard which it believes is reasonable for the requirements of the post. The appellant's argument attaches insufficient significance to the number of credits assigned to a qualification. The goal of professional merit in the public service confers a managerial prerogative to require a three-year or 360 credits qualification at NQF Level 6 for the post of a Deputy Director; and hence it may reasonably be held, as the arbitrator did, that this is what the Department meant in the job advertisement by an appropriate tertiary qualification at NQF Level 6." [para 24]