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Case Law: Failure to appoint a qualifying applicant could create problems for you

by , 06 December 2015
In this case, a job applicant (applicant) challenged the failure of the employer (respondent) to appoint him in a position he applied for.

Read on to see what happened...

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

The employer didn't hire the applicant to the position of Divisional Head: Public Safety. This was a position the applicant had acted in for 2 years.

What had happened was that the respondent, namely the employer, had an advertisement for the position, to which the applicant applied.

The advert was then withdrawn and replaced by another one, this time adding the requirement of 4-years' experience – something which the applicant didn't have.

What was said?

It was said that the right of an employer to appoint who they wanted to could be challenged, especially when the appointment is believed to be unreasonable.

The employer had an employment policy, and it said that not complying with with it would amount to unfairness.

It was discovered that the true reason behind the change in the ad was to merely exclude the applicant. And it was decided that the acting experience of the applicant qualified him for consideration.

Read on to see what the Court decided…


The A-Z of legal recruitment
Did you know there are 11 legal requirements for recruitment?
Do you know how the Employment Equity Act affects your job advertisement?
Do you know what checks you can legally conduct on an applicant?
Are you sure your employment contract includes the 16 clauses the law says you must have?
If you don't have all of these aspects correct, you'll be on the wrong side of the law when it comes to your recruitment process.

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Article continued…

What did the Court decide?

It was found the employer didn't comply with its employment policy by not at least shortlisting the applicant.

So, the appointment process was unfair and the respondent (employer) had to pay the applicant, in retrospect, for the post as if he had been appointed.

What can you learn from this case?

1. An applicant can challenge the decision of an employer who doesn't appoint him if he believes the decision is unreasonable.

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

3. If you exclude applicants, who would've qualified for the position, puts you at risk of unfair labour practices. 

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