Your legal rights

Rejected Job Applications: The Right to Just Administrative Action and Information

At a point in most people's lives, they find themselves submitting job applications to different potential employers. Some applications might return with a “we regret to inform you that your application was not successful”, while other applications might be met with no response. Either way, this can leave the job applicant wondering what could have been the reason for their application not landing them the position. This article will be looking at whether job applicants have the right to request reasons why their application was not successful. 

What does the law say?

The point of departure in answering this question is the Constitution which provides that:

>    everyone has the right to information held by another (including the State) in as far as it is required to exercise or protect any other right;

>    everyone has the right to administrative action that is fair, reasonable and just; and 

>    everyone has the right to written reasons if any of their rights have been negatively affected by administrative action. 

Therefore, it is a basic human right under the Constitution to ask for information and this right can, in some instances, be used to ask for reasons of a declined job application. However, it is not always as simple and direct as it appears. There are certain procedures and aspects to consider under the Promotion of Access to Information Act 2 of 2000 (“PAIA”) and the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”). 

A person wanting to ask for information must do so by following the procedures set out in what is known as a “PAIA Manual”. This document can usually be found on the relevant entity's website and it will explain the procedure, whether there are any costs involved, as well as include a form that must be completed. 

What should also be noted is that if information is requested from a private entity (such as a company), the request for information must be to exercise or protect any rights. The request should, therefore, indicate the right that is to be protected and an explanation of why the record will be of use in that regard. However, if the request is made to a public entity (such as a governmental department), the reasons why the information required is not relevant for purposes of determining whether or not to grant access to public records, but might help in strengthening your request for the information. 

Must the information always be provided when requested?

Although a person might have followed the correct procedures when requesting information regarding his/her rejected job application, it does not mean that the request must be adhered to. There are various factors involved and one of them is that the entity must refuse access to the information requested if releasing it would violate the privacy of another person. In a legal matter where a person was aggrieved that he was not appointed to a municipal manager position he applied for, he approached the High Court for an order after his attempts to obtain reasons from the municipality were unsuccessful. He had requested the outcome of the interviews, including the scores of all the other candidates. The High Court made an order that he should be given reasons why he was not appointed and the outcome of his assessments, however, he was not entitled to the scores of the other candidates as this would be an unreasonable violation of others' personal information. 

Can the decision to reject a job application be taken on review?

Generally, employers follow the criteria, qualifications and other operational requirements when deciding who the best candidate for a position will be and not every decision made by an employer can be taken on review. There are some exclusions to the general rule, for example, where a rejection was due to unfair discrimination. Section 9 of the Constitution provides everyone with the right to equality and not to be unfairly discriminated against based on their race, gender, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. For example, a female job applicant cannot be refused for a position purely on the basis that she is pregnant. 

In addition to the above, there is a specific remedy applicable in the public sector under PAJA to review and set aside an administrative decision which negatively affects a person's rights. As indicated above, administrative action must be fair, just and reasonable. However, for PAJA to apply, there must have been an administrative decision (this includes failure to take a decision) taken by:

>    an organ of state in exercising its constitutional powers or performing a public function in terms of any other law;

>    a person (natural or juristic) when performing a public function in terms of any empowering provision.

 This means that if an appointment into a position of employment does not amount to the exercise of a public power in terms of a law, a job applicant would not be able to request a review under PAJA even if s/he feels the process was not just, reasonable or fair. For example, if a private company advertised a position for a data capturer and appointed a specific candidate over another, the one whose application was not successful would not be able to apply for review as this is not the performance of a public function. In a matter where an applicant for a vacancy challenged a municipality's decision to appoint a certain candidate and wanted it set aside, the court held that it had jurisdiction to hear such an application for review.

Conclusion

A person may request reasons why his/her job application was unsuccessful, provided they comply with all the requirements of such request. Furthermore, if one is aggrieved by the administrative process which led to the appointment of another candidate, s/he may approach the court for review and setting aside of that appointment, provided the appointment was an exercise of a public power given to the appointing entity by an empowering provision, such as a law.

Did you know…Everyone has the right to written reasons if any of their rights have been negatively affected.