Molifi / Maquassi Hills Local Municipality and another - (2015) 24 SALGBC 6.9.27
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In this case, the employer failed to appoint the applicant to the position of Divisional Head: Public Safety.
This was a position the applicant had acted in for two years.
What had happened was that the employer had an advertisement for the position, to which the applicant applied.
The advertisement was then withdrawn and replaced by another one, this time adding the requirement of four-years' experience – something which the applicant didn't have.
What was said?
It was stated that the right of an employer to appoint who they wanted to could be challenged when the appointment is believed to be very unreasonable so as to conclude that the employer was not applying his mind.
The employer had an employment policy, and it was stated that failure to comply with it would amount to unfairness.
It was discovered that the true reason behind the change in the advertisement was to merely exclude the applicant, and it was decided that the acting experience of the applicant did in fact qualify him for consideration.
Keep Reading to find out what was decided…
What was decided?
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It was found that the employer failed to comply with its employment policy by not at least shortlisting the applicant.
Therefore, the appointment process was considered to be unfair and the employer had to pay the applicant for the post, as if he'd been appointed.
What can you learn from this case?
An applicant can challenge the decision of the employer to not appoint him if he believes that the decision is unreasonable;
Employers who don't comply with their employment policies run the risk of being unfair in their practices; and
Excluding applicants, who would have qualified for consideration, puts an employer at risk of unfair labour practices.
*To learn more on acting appointments, page over to Chapter R 02
in your Labour Law for Managers
handbook. Alternatively, click here.