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CASE LAW: Be careful when dealing with acting appointments

by , 08 June 2016
CASE LAW: Be careful when dealing with acting appointmentsIf an employee, who occupies a very important position within your company, decides to leave you, you don't have to feel crippled.

You can make use of 'acting appointments'.

These are when you temporarily hire an employee to fill a higher-level position, until you can find someone, with all the necessary skills, to fill it permanently.

It sounds easy enough, but the truth is that it's not! It can get complicated.

You see, when you hire an employee temporarily, you must allow them to apply for the permanent position as well. You can't just exclude them, as this can lead to dire consequences for you.

To prove my point, here's a case which shows what will happen if you don't allow an acting employee to apply for the permanent position.

Keep reading to find out what it is...


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Molifi / Maquassi Hills Local Municipality and another - (2015) 24 SALGBC 6.9.27

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The advertisement was then withdrawn and replaced by another one, this time adding the requirement of four-years' experience – something which the applicant didn't have.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…       

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What was decided?

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?

1. An applicant can challenge the decision of the employer to not appoint him if he believes that the decision is unreasonable;

2. Employers who don't comply with their employment policies run the risk of being unfair in their practices; and

3. 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.

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