Employers must tread carefully when shortlisting employees/candidates for promotional posts and employers must apply the requirements set out for a promotional post consistently.

Recently, the issue and dispute of an employer’s failure to consistently apply the requirements set out in a promotional post advertisement, amounting to an unfair labour practice, was adjudicated upon by the commission once again. In the case of Ngidi v Cape Peninsula University of Technology (2019) 28 CCMA 6.9.4, the employer, Cape Peninsula University of Technology (“CPUT”), advertised a position for a Committee Officer.  

The employee, who was previously employed by the employer on a fixed-term contract, applied for the post of Committee Officer, but was regrettably advised that she has not been shortlisted for this position. Upon the appointment of another candidate to the position of Committee Officer, the employee alleged that CPUT did not follow its policy with regard to the screening and shortlisting of candidates.  As result thereof, the employee lodged a grievance and alleged that failing to shortlist her for the position amounted to an unfair labour practice. CPUT, however, contended that the employee did not meet and satisfy the requirements of the job.

Upon adjudicating the dispute, the commissioner held that arbitrators may interfere with decisions made by employers on whom to appoint or promote only if the employer exercises that discretion capriciously, for insubstantial reasons or in a biased manner and if the exercise of the discretion was unfair to the employee/candidate.

The commissioner, having regard to the employer’s recruitment policy, which, inter alia, specified that advertisements must clearly and unambiguously state the minimum criteria to be used for clearing and shortlisting candidates and all other assessment criteria that must be stipulated in the advertisement, pointed out that the advertisement required three (3) years’ experience in a Secretariat/Committee Services environment or a related environment.

However, it did not specify that it was an inherent requirement that candidates had to perform this function as a primary function. The commissioner held that the decision by the selection committee to accept the requirement of having three (3) years’ experience in a Secretariat/Committee Services environment or related environment as a yardstick, fell outside the requirement set by the advertisement. The employee had performed committee work, albeit not as a core function of the positions she had held previously but was nevertheless fully qualified for the position. The commissioner held that the exclusion of the employee on the basis that she did not perform committee work as a core function, but had performed committee work, constituted unfair conduct on part of the employer.  

The commissioner held that the employee complied with all the requirements of the advertisement and that her exclusion from the shortlisted candidates constituted an unfair labour practice to which the employee was awarded compensation equal to two months’ salary.

Employers must therefore tread carefully when shortlisting employees/candidates for a post/promotional post and should apply the same set of requirements to all employees/candidates, as failing to do this may constitute an unfair labour practice and the employer having to pay compensation to the employee on a promotional post salary scale.  

Author: Gershwin Boonzaaier