The courts do not normally interfere with an employer’s decisions relating to appointment of applicants to positions. However, exceptions to this norm might be made where the appointment constitutes a promotion of an internal applicant or where the employer has broken its own rules pertaining to applicant appointment.

Employers too often make appointment decisions based on private agendas instead of on the basis of employment policy and fairness to the applicants. This raises the question as to how employers justify to themselves their right to flout policy and the principles of fairness. Often, this misguided self-justification stems from the employer’s belief in its own management prerogative.

While the right of management prerogative does exist, it is tempered by the principles of reasonableness and fairness. In order to be fair management decisions must be justifiable in the face of proven facts that are rationally connected to the decisions made.

It is a very common problem that managers struggle to base their decision-making purely on facts and rationality. This might occur because managers are not properly aware that their management prerogative is limited by the law, and/or because the employer has a hidden agenda. Such agendas could include bias in favour of a particular applicant or bias against a particular applicant.

When candidates are considered for appointments it is essential that they are all assessed on a fair basis. For example, where an employer’s appointment assessment process is based on a numerical scoring system the candidate with the best score must get the job unless there is a very strong and objective reason for rejecting the candidate’s score. Management prerogative cannot override proper and accurate assessment scores.

In the case of Booysen vs Beaufort West Municipality (Lex Info 19 August 2025. Labour Appeal Court case number PA 15/24) Mr Booysen applied for the post of Director of Community Services together with three other candidates, and was given the highest score by the selection panel. One of the panellists was a Mr Prince who was an ANC town councillor. Despite the fact that the employer did not claim that Booysen was unsuited to the position the municipality rejected all the candidates and readvertised the post. This time, Mr Prince resigned as a councillor and applied for the post; and Mr Booysen applied for the post again. Despite the fact that Mr Prince received the fourth highest score he was appointed to the position.

Booysen’s dispute against this decision failed in the Labour Court and he appealed to the Labour Appeal Court. The Court found that the municipality’s decision not to appoint Booysen was arbitrary, irrational and capricious (impulsive). The Court therefore ordered the employer to appoint Booysen to the post retrospectively to the date on which Prince had been appointed. The Court also ordered the municipality to pay Booysen’s legal costs.

In the light of this costly finding employers should ensure that those responsible for making employment decisions are properly trained in the laws of fairness and in the limitations of management prerogative.

The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve necessary knowhow at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.

A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.

This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss. 

Written by Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za  

To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za or contact Ivan on ivan@labourlawadvice.co.za