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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
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But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

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If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

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