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Article 20/2022

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

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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?

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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?

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