You've placed a job advert up for a position within your company, and you're on the lookout for the right person for the job.
You sift through the candidates' applications, and begin short-listing them before making a final decision, when all of a sudden you get a notification that you're being challenged for an unfair labour practice by none other than one of the applicants!
How can this be? And if it can happen, how can you protect yourself?
To help you understand this more, and shed some light on what you can do to protect yourself, take a look at the following case...
Job applicants can take you to the CCMA for not hiring them! Here's how to protect yourself
***** ADVERTISEMENT *****
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.
In the case of Molifi / Maquassi Hills Local Municipality and another - (2015)24 SALGBC 6.9.27)
, the employer failed to appoint the applicant to the position of Divisional Head: Public Safety,
it was a position the applicant had acted in for two years.
What happened was that the respondent (employer) put up an advertisement for the position, to which the applicant, who qualified for the post, applied.
But all of a sudden, the advertisement was taken down and replaced by another one, this time adding the requirement of four years' experience. And the applicant didn't have this.
The applicant saw this as a deliberate unfairness and challenged the employer.
The court confirmed the right of an employer to appoint who they wanted to could in fact be challenged when the appointment was believed to have been very unreasonable.
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 qualified him for consideration. What's more is that the employer was found to unfair in that it didn't follow its own employment policy, I that it didn't even shortlist the applicant at least.
Overall, the appointment process was considered to be unfair and the respondent (employer) had to pay the applicant, in retrospect, for the post as if he had been appointed.
Keep reading to see what you can do to protect yourself…
So what can you do to protect yourself from this happening to you?
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You need to ensure the following two things to protect yourself…
Ensure that you're following your employment policies through and through, because employers who don't comply with their employment policies run the risk of being unfair in their labour practices, including appointments; and
You should include applicants who qualify for consideration, because excluding them will definitely put you at risk of unfair labour practices.
*Do you want to learn more on recruiting people correctly and legally? Then page over to Chapter R 18: Recruitment
in your Labour Law for Managers
If you don't already have a copy, simply click here.