If the candidate disputes the scores and complains about not being promoted then the candidate is required to show that the process and outcome was unfair.The employer explained that experience was a significant factor that was taken into account in ranking the candidates.
The employee then appealed to the Labour Appeal Court (LAC) arguing that the arbitrator had erred by finding that the employment contract had terminated automatically as the termination provisions in the employment contract were invalid or void for vagueness.
The employee referred an unfair labour practice dispute to the bargaining council.
The arbitrator held that there had been no unfair labour practice.
The employee further argued that he was denied the right to a hearing before the termination clause was invoked.
The LAC held that this was not a matter which involved misconduct that entitled the employee to a hearing.
Van Niekerk J considered the case law and found that this case was distinguishable.
He held that for an employment contract to provide that it is conditional on a positive vetting process and to provide for automatic termination should the outcome of the vetting process not be positive did not deprive an employee of the right to security of employment.
As regards the employee’s argument that he was not given an opportunity to put his version across in respect of the negative information that was disclosed to the employer, Van Niekerk J commented that the employee had had the opportunity to put his version across by making a full disclosure at the time of his appointment.
Van Niekerk J said that the circumstances of this case were similar to a situation where a pilot was required to produce proof of a pilot’s licence.
The employee then took the matter on review to the Labour Court (LC), which found that the employee should have received a score of 18 points as he was in possession of an LLB degree.
The LC did not, however, rule that the employee should have been appointed to the position.