South African Psychiatry - November 2020

PERSPECTIVE - LEGAL
CAN PSYCHOMETRIC
ASSESSMENT
RESULTS BE USED AS A
SELECTION CRITERION DURING
RETRENCHMENTS?
Mpumelelo Nxumalo, Joani van Vuuren, Shane Johnson
In a judgment* delivered earlier this year,
the Labour Court considered the question
of whether psychometric assessment results
can be used as a selection criterion during a
retrenchment process. The Labour Court found that
psychometric tests can be used as assessment
criteria for filling vacant positions during a
retrenchment process.
FACTS
At the time of his dismissal, Mr Wayne Pratten (the
employee) was employed by Afrizun (the employer)
as its Deputy Tables Manager at the employer's
Sibaya branch. During February 2014, the employer
commenced with a retrenchment process under
section 189 and 189A of the Labour Relations Act 66
of 1995 (LRA). The employer engaged employees
on the retrenchment process through various
meetings, presentations and letters. Affected
employees were later advised of the proposed
selection criteria to be adopted by the employer as
follows -
"4.1. Employees employed in positions which
would become redundant as a result of
the restructure, would be informed of the
new positions for which they qualified to
apply, and would be invited to apply for
appointment to such positions;
4.2. Employees then employed in certain job
categories would be selected on the basis
of psychometric testing…"
The employee was one of the employees
affected by the restructuring process and he was
required to apply for a new position. During the
consultation process, the employee was provided
with information on the new restructured positions
and the minimum criteria for each position. The
employee could apply for certain categories of
positions. The employee applied for the positions
for which he qualified to apply. The employee was
required to complete various psychometric tests.
ALTHOUGH THE EMPLOYEE COMPLIED
WITH THE MINIMUM REQUIREMENTS
OF THE POSITIONS, HE WAS NOT
OFFERED ANY OF THE POSITIONS DUE
TO THE RESULTS OF HIS PSYCHOMETRIC
ASSESSMENTS.
During the period between November and
December 2014, the employer and employee
engaged in correspondence where the employee
raised certain concerns regarding his unsuccessful
application. The employee particularly raised
a concern relating to the role the results of his
psychometric tests played in him failing to secure
a position. The employer subsequently offered the
employee similar positions at different branches.
The employee declined the offers as his wife was
employed at the Sibaya branch and accepting any
of the positions would adversely affect his family
location.
The employee was ultimately retrenched. The
employee only challenged the substantive fairness
of his dismissal at the Labour Court.
The question before the Labour Court was whether
the employer's failure to appoint the employee
* Pratten v Afrizun KZN (Pty) Ltd (D439/15) [2020] ZALCD 9 (17 April 2020)
SOUTH AFRICAN PSYCHIATRY ISSUE 25 2020 * 91