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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
November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?