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

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.