Previous articles focussed on the principle that the assessment criteria for appointment in a restructured position are not equivalent to selection criteria envisaged by s189 and s189A of the LRA [e.g. Article 16/2022].
What are the principles extracted from Telkom SA Soc Ltd v Van Staden (2021) 32 SALLR 8 (LAC); (2021) 42 ILJ 869 (LAC), SA Breweries (Pty) Ltd v Louw (2017) 28 SALLR 71 (LAC) and Pratten v Afrisun KZN (Pty) Ltd (2020) 31 SALLR 159 (LC) that govern such process?
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- it is not unfair to require employees to compete in a placement process as part of the restructuring exercise entailing organisational structure changes, adjusting and streamlining roles and positions, etc
- when competing for such positions, the employer is entitled to take into account both technical competencies and behavioural competencies and the criteria to determine such competencies are not selection criteria in terms of s189(2)(b) read with s189(7) of the LRA
- however, the entire process, even though not constituting selection criteria, is subject to judicial scrutiny, which entails, inter alia, the following:
- the labour court is entitled to scrutinise the entire placement process and decisions to determine if they are fair
- the labour court, however, is not entitled to decide (i) what process it would have adopted and (ii) what placement decisions it would have preferred
- the labour court is entitled to determine whether the process was subjective or not, arbitrary, capricious or inconsistent
- when an employee is not placed on a competitive basis, only then do selection criteria for dismissal in terms of s189(7) of the LRA ‘kick in’, which must either be agreed upon or fair and objective
