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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
August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

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

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

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?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?