1. FAIRNESS IN APPOINTMENT, PROMOTION AND PROBATION
Brenda Grant, UKZN (PMB)

2. 1. APPOINTMENT * Atkins v Datacentrix (Pty)
offered employment after interview
after acceptance of employment, he disclosed that he planned to undergo a sex change operation
employer terminated on the basis of non-disclosure (dishonesty)
[2010] 4 BLLR 351 (LC)

3. held: no legal duty on employee to disclose that he would undergo gender re-assignment surgery
conduct of employer constitutes unfair discrimination on the basis of sexual orientation
awarded close to 5 months compensation
employer ordered to take steps to prevent discrimination

4. Issue: When does a legal duty to disclose arise?
* Mashava v Cuzens & Woods
candidate attorney has no duty to disclose pregnancy for articles of clerkship
unfair discrimination on the basis of pregnancy
[2000] 6 BLLR 691 (LC).

5. (b) when is refusal to appoint arbitrary?
if there is evidence of unfair discrimination
* NUTESA v Technikon Northern Transvaal
appointment of candidate who does not meet min. advertised qualifications
[1997] 4 BLLR 467 (CCMA)

6. 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.
A Rycroft `Rethinking the requirements for a fair appointment or promotion: Arries v CCMA & other (2006) 27 ILJ 2324 (LC)’ in (2007) 28 ILJ 2189

7. * Du Preez v Min of Justice
The assessment of the candidates at the interview must relate only to the competencies required for the job.
* Du Preez v Min of Justice
appointment based on additional scores given to designated persons (race and gender)
held: irrational criteria which defeats efficiency
[2006] 8 BLLR 765 (LC)

8. 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.
(2007) 28 ILJ 375 (LC)

9. applicant had achieved a higher scores than person appointed
* Minister of Safety and Security v Safety and Security Sectoral Bargaining Council and Others
applicant had achieved a higher scores than person appointed
held: failure to promoted was unfair – there was on evidence or reason to give person with lower score the job.
[2010] 4 BLLR 428 (LC)

10. * Solidarity obo Barnard v SAPS
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
WF applied for promotion & received the highest score in the skills test
panel recommended her for appointment, but the National Commissioner refused to appoint her on the basis that she was white
[2010] 5 BLLR 561 (LC)

11. post was kept vacant and re-advertised
applied again, got the highest score again and was recommended by the panel
National Commissioner refused to appoint her again - basis that the appointment should `reflect representitvity.’
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

12. (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

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

14. * FAGWUSA v Hibiscus Coast Municipality
(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
employer not simply required to appoint person because from designated group
qualifications, experience are important
(2003) 24 ILJ 1976 (LC)

15. * Coetzer v Min of Safety & Security
The employer must be able to articulate the reason (s) why a particular candidate is unsuccessful.
* Coetzer v Min of Safety & Security
W police officers not given promotion posts even though no designated persons applied
held: unfair discrimination - efficiency must be balanced with AA measures
(2003) 24 ILJ 163 (LC)

16. Item 8 of Code of Good Practice: dismissal
3. PROBATION
Item 8 of Code of Good Practice: dismissal
the employee’s performance must be assessed
employer must advise, train, guide and counsel the employee.
period may be extended

17. * Boss Logistics v Phopi
employee misrepresented qualifications at interview
dismissed for poor work performance and dishonesty
argued that not given sufficient training (2 weeks)
[2010] 5 BLLR 525 (LC)

18. held:
(1) no obligation to given training if misrepresented qualifications;
(2) instruction and guidance may not apply to senior management