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Article 18/2022

In Pratten v Afrisun KZN (Pty) Ltd (2020) 31 SALLR 159 (LC), the applicant’s case was as follows: ‘It is fundamentally unfair for an employer, such as the respondent, to use psychometric tests as an elimination tool in the context of a retrenchment exercise where a number of employees are vying or competing for appointment for a limited number of posts’.

What are some of the principles established or confirmed by the labour court in rejecting the applicant’s case?

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The following principles can be identified when analysing such judgment:

  • neither the assessment of technical competencies nor psychometric testing, assessing behavioural competencies, should serve as the only criteria – a successful candidate had to succeed at both stages in order to secure a position
  • obviously, there will be a direct causal link between poor psychometric test results and the non-selection for appointment since a higher score would secure a position
  • it is not a requirement that psychometric tests need to be certified in terms of s8(d) of the EEA (Association of Test Publishers of SA v President of the Republic of SA (2017) 38 ILJ 2253 (GP)
  • results obtained from psychometric testing cannot be used without reference to technical competencies and psychometric testing results cannot be used as the sole criteria – every employer who wants to stay in business will satisfy itself as to the technical competencies of a candidate and will not solely rely on psychometric assessments of behavioural competencies.  For example, if only behavioural competencies are tested for the position of a pilot and technical competencies are totally ignored, the result could be as follows: your test candidate would be a really clever, very stable person with a sound personality who would get on with everyone but who would have an accident immediately when he tries to fly the plane, because technical competencies will indicate whether he can fly or not
  • psychometric testing does not measure whether people are qualified or not – they also do not measure whether people are good enough or not for a position but simply compare the one candidate to the other: ‘We ranked them in terms of their scores, on their competencies, that mattered for the job.  So if you scored higher, you should perform better.  If you scored lower, you wouldn’t have performed as well and we didn’t know what point in the scale was a cut off.’
  • to combine psychometric test results with other criteria, such as years of service, would dilute the objectivity of the ranking process, instead of improving it
July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?