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(a) has been scientifically shown to be valid and reliable;
(b) can be applied fairly to all employees;
(c) is not biased against any employee or group; and
(d) has been certified by the Health Professions Council of South Africa
established by section 2 of the Health Professions Act, 1974 (Act 56 of 1974),
or any other body which may be authorised by law to certify those tests
or assessments.”

In the recent decision of Association of Test Publishers of South Africa v President
of the Republic of South Africa, the proclamation that added the additional
requirement that psychometric tests be certified by the Health Professions
Council of South Africa was determined to be null and void and of no force and
effect. Accordingly, Section 8(d) is no longer a requirement for the valid use of
a psychometric test. The other requirements in Section 8 however still apply and
would need to be met for the psychometric test to be validly used.

Before finalising a decision to use a specific psychometric test, discuss the
requirements of Section 8(a)-(c) with the provider of the test to establish whether
the test meets these criteria and consult with a labour specialist to help guide
you on how to correctly implement the use of such tests within your business. Labour
Remember that the criteria listed in section 8 are cumulative and the onus
would lie with you as employer to prove that any test used meets these criteria.

Must costs follow the result in Labour Court
disputes?

Tata Mokwayi
January 2018

“I’m unemployed because my fixed-term contract was not renewed by my
employer. I referred a dispute to the CCMA but was unsuccessful there. My
attorney does feel there is merits in taking the matter on review to the Labour
Court, but has warned me that it may be expensive and there is no guarantee
that even if I win my case, that my legal costs will be paid by the employer. Is
this really correct? I always thought that the unsuccessful party must pay the
successful party’s costs?”

To clarify the rule of practice that ‘cost orders follow the result’, or plainly put, that
the unsuccessful party must pay the costs of litigation, our Constitutional Court
recently reviewed this rule of practice in the context of labour matters heard in
the Labour Court and Labour Appeal Court.

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