The recruitment and selection processes are critical operational aspects of any organisation. Although employers generally have complete discretion in determining whom to appoint for a respective position, there are exceptions to how this discretion can be implemented. If a prospective candidate is not appointed due to unfair or irrational reasons, there may be adverse legal implications.

South African labour law, specifically the Employment Equity Act (EEA), protects prospective employees by promoting equal opportunities and fair treatment in employment. Employers are obligated to take steps to promote equal opportunities in the workplace by eliminating unfair discrimination in any employment policy or practice. This obligation is also incumbent on recruitment processes. Therefore, employers must be wary of the potential consequences of unfair and irrational recruitment processes.

While there are numerous reasons to justify the non-appointment of a candidate, the following examples may lead to a valid cause of action by an unsuccessful candidate against the company:

1. If a candidate believes they were unsuccessful in their job application due to being unfairly discriminated against, they may refer a dispute for discrimination to the Commission for Conciliation, Mediation and Arbitration (CCMA) or Labour Court. Section 6(1) of the EEA prohibits employers from discriminating against employees on several grounds, as listed in this section. 

2. If a verbal or written job offer was made and subsequently withdrawn without a valid reason, the candidate may have a claim for breach of contract.

In the Labour Court case of the Department of Rural Development and Agrarian Reform v General Public Service Sectoral Bargaining Council and others [2020] 4 BLLR 353 (LAC), the Court provided valuable insights into the legal considerations surrounding the failure to appoint a prospective employee. In this case, the Court found that the employer’s delay in filling a vacant position was patently capricious and unfair despite having a suitable candidate. The employer’s reasons for not appointing the candidate were deemed unreasonable. The Court emphasised that while employers have discretion in appointment decisions, these decisions must be fair and reasonable.

This view was confirmed in the recent case of Booysen v Beaufort West Municipality and another [2024] 6 BLLR 593 (LC).   The Applicant challenged the decision taken to appoint an employee who was rated below him during the second round of interviews as he deemed it irrational. This contention relied on the legal principles set out in the above case of the Department of Rural Development. The Court distinguished the set of facts between the two cases and found that the Applicant failed to prove that he was entitled to be appointed in this case. The Court considered that the Applicant had initially applied for the Director of Community Services post and was ranked first among other candidates. Still, the selection panel decided not to fill the vacancy; instead, the vacancy was re-advertised. That decision led to the Applicant reapplying for the post and undergoing another round of interviews. Still, this time, he was rated second out of the three short-listed candidates, and the panel decided to appoint the third-rated candidate. 

The Court found that the subsequent events that had taken place would render an order reviewing and setting aside the Respondent’s first decision unenforceable. The Court also determined that there was no rationale for the Council’s decision to vote for the appointment of either the first-rated or the third-rated candidate and overlooking the Applicant. However, it found that the Applicant could only be entitled to the appointment if the first-rated candidate had declined the offer of appointment. There was never an offer of appointment made to the first-rated candidate to accept or reject, and he did not contest his non-appointment; he effectively accepted the Respondent’s decision. Therefore, even though the Respondent acted irrationally, the employee could not prove that he would have definitively been appointed.

This case, with its unique circumstances, provides an important keynote in that our Courts will determine each case on its own merits. The test remains whether an employer’s discretion to appoint a candidate is justified based on the reasonableness and fairness of its decision. A failure by the employer to appoint candidates on fair and reasonable grounds can result in adverse consequences, as the disgruntled candidates may exercise their right of recourse by referring a dispute to the CCMA. Employers can minimise the risk of unsuccessful candidates referring legal disputes by understanding the legal framework and implementing fair recruitment practices. If employers face a situation involving the failure to appoint a prospective employee, it is essential to seek legal advice to understand their rights and obligations.

Written by Chris Pio, Dispute Resolution Official, CEO SA