Transcript SASLAW presentation Alan Rycroft

“Asking questions at a job
interview: discrimination, privacy
and other landmines”
It has been said that whilst interviews are
the most popular form of selection in
organizations, they also enjoy the lowest
levels of validity and reliability.
How can interviews be turned into a
more reliable indicator of the suitable
candidate?
Competency-based recruitment
• The concept of competency-based
recruitment is derived from Richard Boyatzis’
book The Competent Manager: A Model for
Effective Performance (1982). He adopts this
understanding of a competence:
an underlying characteristic of a person
which results in effective and / or superior
performance in a job.
Competency-based recruitment
• Competency-based assessment involves the
identification and measurement of the critical
performance criteria (competencies) which are
necessary for performance excellence in a particular job.
• Competencies can be any one or a combination of the
following characteristics:
a. Bodies of knowledge
b. Cognitive and behavioural skills
c. Attitudes and Values
d. Traits
e. Motives
f. Self-image
g. Social roles
Targeted Selection: Using a Grid
Assessment System
• To ensure that all competencies are covered in the
interview, many interview guides include what has been
called a Dimension Coverage Grid, which can show at a
glance how the candidates rate against one another.
• Each person on the selection committee should complete
the grid, without consultation or discussion with others.
The importance of this stage is to prevent any one
committee member from dominating or swaying the
committee.
• Can be kept as a record of the way in which the committee
came to its decision.
Targeted selection
Agree the competencies required for the
job
Advert lists the required competencies
Interview questions designed to test the
agreed competencies
Score candidates on the basis of
responses to questions
Select the best candidate
Relevant Questions
• The best indicator of future behaviour is past
behaviour.
• In drafting the questions you should match a
competency with a question that requires the
candidate to reflect backwards.
Employment Equity Act 55 of 1998
• No person may unfairly discriminate, directly or
indirectly, against an employee, in any
employment policy or practice, on one or more
grounds, including race, gender, sex, pregnancy,
marital status, family responsibility, ethnic or
social origin, colour, sexual orientation, age,
disability.
• When the Act uses the word "employee" in
sections 6, 7 and 8, it includes an applicant for
employment.
Landmines
Landmines
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Marital status
Child-bearing possibilities
Sexual orientation
Age
Disability
Criminal record
Non-disclosure by the applicant
• Pregnancy (Swart v Greenmachine
Horticultural Services (2010) 31 ILJ 180 (LC) )
• Impending sex change (Atkins v Datacentrix
(Pty) Ltd (2010) 31 ILJ 1130 (LC))
• Employment of wife at competitor (Jeffrey v
Perstel (Pty) Ltd (1996) 17 ILJ 388 (IC)
Elements of a Fair Appointment
• Fair Procedure
• Non Discriminatory
• Appointments must not be grossly
unreasonable (?)
A rethink on promotion law
SAPS v Safety and Security
Bargaining Council & others (LC Case
no: P426/08; judgment date
27/10/2010)
The facts of the case:
• In terms of the panel’s scores, Noonan was second on the
recommended list of three candidates.
• The recommendations were submitted to the National
Commissioner and he approved the recommendation in
respect of the first person on the list, Matshaya.
• Noonan challenged on two grounds. Firstly, Matshaya
should not have been on the list because he had not met a
threshold requirement for consideration by the evaluation
panel, namely the failure to disclose his previous
disciplinary record. Secondly, he had been incorrectly
scored which lead to his being placed second rather than
first on the list.
• Had the evaluation committee not placed Matshaya on the
list or had they placed him second and Noonan first,
Noonan’s promotion would have been approved.
The arbitrator held:
• The arbitrator found that the evaluation panel erred in a
number of ways in their scoring of the candidates
• The panel had a wrong impression regarding Matshaya in
recommending him as first choice
• On the balance of probabilities the panel would have
recommended Noonan as first on the list and that,
accordingly, the national commissioner would have appointed
him to the post.
[Par 26] The jurisprudence that the arbitrators and
judges have developed can be summarised as follows:
• It is not sufficient for a candidate for promotion to claim that
she was better qualified or more suitable than the successful
candidate.
• The candidate must show that the decision to appoint
another was unfair.
How does a candidate do this?
Jurisprudence / continued
• If the decision of the employer to appoint one in preference
to the other is rational no question of unfairness can arise.
How does the employer prove it was rational?
• The corollary of this principle is that a comparison of the
relative strengths and weaknesses of the candidates are only
relevant if they suggest that the selection was arbitrary or
motivated by an unacceptable reason.
Does this mean arbitrators have been getting
it wrong all along?
Jurisprudence / continued
• The reasons for promotion or non-promotion are only
relevant insofar as they shed light on the fairness of the
process of selection.
• As a corollary, arbitrators should avoid if possible making a
decision on the merits of an appointment.
How does one establish that a decision is
rational without interrogating the reasons?
Jurisprudence / continued
• Arbitrators should be slow to intervene too readily in disputes
relating to promotion and should be sensitive to the
operational requirements, as they may be perceived by the
employer, unless bad faith or improper motives are present.
If you were an employee how would you
establish bad faith or improper motive?
Jurisprudence / continued
• The employer’s failure to comply with its promotion policies
and procedures can constitute an unfair labour practice if the
failure is such that the complainant was denied the
opportunity of being considered for the post.
What are the biggest dangers in noncompliance with promotion procedures?
Jurisprudence / continued
• The promotion-related unfair labour practice does not confer
a right to be promoted and the statutory remedies do not
provide for a preferred remedy of appointing the claimant to
the position.
What are the dangers of an arbitrator
appointing a grievant to the position?
These principles are incorrect:
• The successful candidate should ordinarily be the person
who scores the highest.
• If there is deviation from the highest scored candidate,
there must be a sound operational or employment equity
reason for doing so.
“The problem with these criteria is that they assume that the
decision is an objective one and that qualitative
differences can be accurately quantified. ..It follows then
that there should be no preference rule that the highest
scorer gets the appointment or that there has to be an
operational or employment equity basis for not appointing
the highest scorer.” (par 28)
• The focus is not so much on the quality of the employer’s
reasoning, though obviously that constitutes an element, but
on the fairness of the practice [pa 36].
• An employee’s interest is to have a fair opportunity for
personal development through advancement when vacancies
arise. That interest in self-realization is an amalgam of a
number of constitutional values such as dignity, equality and
fairness.
• The employer’s interest is to appoint employees that it
considers meets its operational requirements and who would
best serve them - an assessment that the employer is best
placed to determine [par 37].
• How is the balance between these interests to be struck? It
suggests that a fair opportunity means being allowed to
apply and be considered in an open and rational process.
That means that unless the process is rigged or arbitrary
the arbitrator ought not to intervene.
• By rigged I mean motivated by improper considerations
such as discrimination, victimisation and corruption.
• By arbitrary I mean that the decision to promote has no or
little rational basis.
• The object of scrutinizing the decision to promote is not to
determine whether the correct decision was made but
whether the process was conducted in such a manner that
the candidate had a fair opportunity to compete for the
post. That is, in my view, the proper focus of the enquiry
[par 38].
• Accordingly, it is not every mistake in an assessment that
amounts to such unfairness.
• If a candidate is one of a list of recommended candidates
albeit second or third on the list, a mistake in scoring which
may have the effect of altering the candidate’s relative
position should not constitute unfairness in the sense that the
employee has been denied a fair opportunity to compete for
the post.
• A mistake however that denies a candidate a fair opportunity
to compete may constitute such unfairness as to justify the
setting aside of the order. [par 39]
[par 41] In summary, it seems that the following
principles ought to be applied when determining an
unfair labour practice concerning unfair conduct
relating to promotion:
• There is no right to promotion in the ordinary course only a
right to be given a fair opportunity to compete for a post.
• The exceptions are when there is a contractual or statutory
right to promotion.
Principles / continued
• Any conduct that denies an employee a fair opportunity to
compete for a post constitutes an unfair labour practice.
• If the employee is not denied the opportunity of competing
for a post, the only justification for scrutinising the selection
process is to determine whether the appointment was
arbitrary or motivated by an unacceptable reason.
• The corollary of this principle is that as long as the decision
can be rationally justified, mistakes in the process of
evaluation do not constitute unfairness justifying an
interference with the decision to appoint.
Principles / continued
• Because there is no right to promotion in the ordinary
course, the appropriate remedy, as a general rule, is to
set aside the decision and refer it back with or without
instructions to ensure that a fair opportunity is given.
• Since the interest is the fair opportunity to compete, it
follows that that should be the appropriate remedy
rather than appointing the applicant to the post (or to
a post on equivalent terms) or to compensate (there
being no loss).
• There are two exceptions. This principle does not apply
to discrimination or victimisation cases in respect of
which different and compelling constitutional interests
are at stake. It also does not apply if the applicant
proves that but for the unfair conduct, she would have
been appointed.