The Labour Court held in a recent judgment Van Dyk v Kouga Municipality that it may be sufficient for the job applicant to have the capacity to achieve the qualification listed in the job advert. Mr Van Dyk, a white male, alleged he was unfairly discriminated against on the basis of sex or race when the Municipality failed to appoint him to the post of platoon officer in the Fire Department.
The advert for the job listed the requirement of a graduate certificate issued by the South African Fire Services Institute. Van Dyk held this certificate and had 6 years' experience as a platoon officer in Uitenhage. He was short listed for the position. The other two candidates shortlisted were Rossouw, a Coloured female and Mintoor, neither of whom had the qualification prescribed by the advert.
The outcome of the interview process was that Rossouw, at the time a senior fireman, scored higher than Van Dyk and was appointed platoon officer. Van Dyk was very disappointed with this result, he had more experience than Rossouw and he had the required qualification. The Municipality justified Rossouw's short listing on the basis that it was believed that she had the capacity to acquire the ability to do the job within a reasonable time. Van Dyk's response was that Rossouw had worked in the Fire Department for several years, so how could it be assumed she would now obtain the certificate within a reasonable time.
There was no legal requirement for this qualification to hold the post of platoon officer, and so the Judge found that Van Dyk's claim of discrimination lacked merit. The Judge accepted that Rossouw's short listing was done on the basis that she had the capacity to acquire the minimum qualification. A surprising judgment which may leave drafters of job specs somewhat confused.
Author: Kate Staude, Associate Partner
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