FAIRNESS IN APPOINTMENT, PROMOTION AND PROBATION

Brenda Grant, UKZN (PMB)

1. APPOINTMENT

* Atkins v Datacentrix (Pty)

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offered employment after interview

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after acceptance of employment, he disclosed that he planned to undergo a sex change operation

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employer terminated on the basis of non-disclosure (dishonesty)

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held: no legal duty on employee to disclose that he would undergo gender re-assignment surgery

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conduct of employer constitutes unfair discrimination on the basis of sexual orientation

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awarded close to 5 months compensation

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employer ordered to take steps to prevent discrimination

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Issue: When does a legal duty to disclose arise?

* Mashava v Cuzens & Woods

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candidate attorney has no duty to disclose pregnancy for articles of clerkship

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unfair discrimination on the basis of pregnancy

(b) when is refusal to appoint arbitrary?

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if there is evidence of unfair discrimination

* NUTESA v Technikon Northern Transvaal

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appointment of candidate who does not meet min. advertised qualifications

2. Promotion

Criteria for fairness: (a) The advertisement must contain accurate information about both minimum requirements and preferred experience/competencies, and these must be necessary for the job.

(b) The assessment of the candidates at the interview must relate only to the competencies required for the job.

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Du Preez v Min of Justice

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appointment based on additional scores given to designated persons (race and gender)

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held: irrational criteria which defeats efficiency

(c) The necessary qualifications or inherent requirements for the job may not be changed after the advertisement. (d) The successful candidate should ordinarily be the person who not only meets the minimum requirements, but who scores highest in the assessment.

* Minister of Safety and Security v Safety and Security Sectoral Bargaining Council and Others

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applicant had achieved a higher scores than person appointed

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held: failure to promoted was unfair – there was on evidence or reason to give person with lower score the job.

(e) If there is deviation from the highest scored candidate, there must be a sound reason, either operationally or for employment equity, to justify this.

* Solidarity obo Barnard v SAPS

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WF applied for promotion & received the highest score in the skills test

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panel recommended her for appointment, but the National Commissioner refused to appoint her on the basis that she was white

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post was kept vacant and re-advertised

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applied again, got the highest score again and was recommended by the panel

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National Commissioner refused to appoint her again basis that the appointment should `reflect representitvity.’

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held: (1) that numerical AA goals must not be applied rigidly – employers to take into account all relevant facts, including the applicants for the post

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(2) an `overrepresented group’ cannot be denied promotion if the post is not filled by a `underrepresented group’ - Commissioner can only deny her the appointment if he had appointed a suitable person from a designated group

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(3) If the candidates from the designated group were unsuitable, then she should have been appointed

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at para 43.5: `It is not apparent that consideration was given to the Applicant’s right to equality and dignity. There appears to have been no consideration for her personal work history and circumstances.’

(f) If there is deviation from the highest scored candidate, the successful candidate must possess the competencies needed for the job.

* FAGWUSA v Hibiscus Coast Municipality

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employer not simply required to appoint person because from designated group qualifications, experience are important

(g) The employer must be able to articulate the reason (s) why a particular candidate is unsuccessful.

* Coetzer v Min of Safety & Security

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W police officers not given promotion posts even though no designated persons applied

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held: unfair discrimination - efficiency must be balanced with AA measures

3. PROBATION Item 8 of Code of Good Practice: dismissal

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the employee’s performance must be assessed

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employer must advise, train, guide and counsel the employee.

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period may be extended

* Boss Logistics v Phopi

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employee misrepresented qualifications at interview

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dismissed for poor work performance and dishonesty

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argued that not given sufficient training (2 weeks)

held: (1) no obligation to given training if misrepresented qualifications;

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(2) instruction and guidance may not apply to senior management