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Article 19/2022

What was the scoring approach adopted by the employer, when it utilised psychometric testing, in Pratten v Afrisun KZN (Pty) Ltd (2020) 31 SALLR 159 (LC)?

In what sequence should technical and behavioural competencies be assessed?

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The labour court adopted the following process:

  • there is no requirement that technical and behavioural competencies should be considered in a specific order, as long as the technical competencies and the behavioural competencies were evaluated, the order in which this was done does not matter
  • the results of behavioural competencies so achieved by means of psychometric testing should not be interpreted with any other criteria, such as long service, qualification, experience, etc – a mechanical and not a clinical data combination process should be adopted.  Evidence was led that, even if done by experts, if such other factors are taken into account, more than 50% loss in validity is to be experienced
  • the process of calculating the scores, once the psychometric questionnaires were completed by pencil, was executed by Psytech South Africa, which entailed the use of an optical scanner to scan the questionnaires so as to avoid human error
  • scores were produced by a computer without any human intervention in the entire process
  • Psytech South African provided the industrial psychologist with percentile scores (scores out of 100 for each construct), which scores he inserted into a programme that computed the ranking required, again without any human intervention
  • in executing the psychometric testing, the industrial psychologist applied synthetic validity, entailing making sure that every step in the process is valid – for example, ensuring that the administration component of the test is validly executed and not proceeding further unless such objective was achieved
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)?