The Department of Health’s Eastern Cape office advertised a newly-created post of Deputy-Director: Clinical Support Services. Among other requirements was that the job applicants must have “current registration with the Health Professions Council of South Africa (HPCSA)”. The second and third appellants were both registered with the HPCSA and applied for the position, but were unsuccessful. The fourth respondent was the successful candidate, albeit that she was not registered with the HPCSA but with the South African Nursing Council (SANC).
The second and third appellants’ main contention was that the fourth respondent did not satisfy the requirements for the position as advertised and in addition, as allied workers, this was the only position to which they could be promoted. The second and third appellants expressed that there would be no issue had the advertisement specified that the applicant should be registered with either the HPCSA or the SANC, but it had not done so. During the shortlisting process, the Department of Health widened the scope of the requirements to include candidates registered with other professional bodies apart from the HPCSA, although the advertisement had not reflected this.
The arbitrator from the Public Health & Social Development Sectoral Bargaining Council (PHSDSBC), where the dispute was referred, ruled that appointing a candidate who had not been registered with the HPCSA as per the advertisement, meant that the Department of Health had deviated from the requirements set out in its own advertisement and could not justify the deviation made during the shortlisting process. Thus the position had to be re-advertised per the arbitrator’s ruling. The arbitrator’s finding was taken on review.
At the Labour Court, the arbitrator’s ruling was set aside and it was held that the arbitrator did not give sufficient reasons for being satisfied that the appellants had discharged the onus of proving an unfair labour practice as they had alleged that that was the result of the Department of Health’s deviation from its own requirements.
The matter was taken on appeal to the Labour Appeal Court where it was determined that the Department of Health had not justified why the job requirements were changed, put differently:
“the Department failed to discharge the evidentiary burden that had shifted to it to justify the departure from the requirements set for the position”.
The Labour Appeal Court conceded that the arbitrator’s conclusion, to the effect that the second and third appellants discharged the onus to prove their unfair labour practice, was not “comprehensive and appear[ed] to be terse”, however it held that it could not be said that the arbitrator did not provide adequate reasons for her decision. The Labour Appeal Court quoted the Constitutional Court judgment of Khumalo & another v Member of the Executive Council for Education: KwaZulu-Natal which was critical of the practice of setting requirements for appointment and departing therefrom when making the appointment.
It was held that the decision reached by the arbitrator that the post be re-advertised was justifiable on the facts and the Labour Appeal Court was satisfied that the award of the arbitrator fell within the band of reasonableness expected of reasonable decision makers.
In light of the foregoing, it is imperative that employers adhere to their own selection requirements when selecting prospective candidates in relevant advertised posts, failing which humble pie will be the order of the day as the advertisement and selection process may have to be revisited afresh.
Written by Fiona Leppan and David Pule