Hiring the best person does not amount to unfairness

You, as an employer, are perfectly entitled to set the educational requirements that you need each position in your company to fulfil. This does not amount to discrimination as is alleged in many cases. The matter of Public Servants Association o.b.o. Thorne v Department of Community Safety (Western Cape) & others provides an example.

The applicant (Ms Thorne) for the job had an Advanced Certificate (NQF level 6). Thus the selection panel recommended that she be appointed to the advertised position.

On future investigations, the department stated that it required a bachelors degree or national diploma – which carries 360 credits – for the advertised position. An Advanced Diploma such as the applicant had only was only valued at 120 credits. Ms Thorne was not appointed as she did not have the requisite qualifications. The department was of the opinion that this was the minimum required for a deputy director’s position, which was the position that Ms Thorne had applied for.

An arbitrator accepted the Department’s evidence that it had always considered a three-year qualification to be appropriate for the position, in line with what was required for comparable positions. The fact that the advertisement had not spelled this out was unfortunate but did not amount to unfair conduct on the employer’s part.

The Labour Court upheld the award on review. On the appeal, the Labour Appeal Court upheld the award. It concluded that the Higher Education Qualifications Framework itself provides for outcomes at NQF level 6, including an Advanced Certificate with 120 credits, and two diplomas with 240 and 360 credits. The statement in the advertisement might have been ambiguous but, technically, it was not inaccurate. The arbitrator did not commit a reviewable irregularity and the case was dismissed.

The court concluded the department is allowed to set an educational standard which it believes is reasonable for the requirements of the post.

Employers may set educational requirements if the jobs that they can justify to be necessary to do such jobs. If educational requirements cannot be justified this may amount to an indirect discrimination.

Jonathan Goldberg is CEO of Global Business Solutions.