Case Number: PSES 744-03/04 KZN
Applicant: J M B MHLAMBI
Respondent: DEPARTMENT OF EDUCATION
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 21 January 2005
Arbitrator: P GOVINDASAMY
IN THE EDUCATION LABOUR RELATIONS COUNCIL
In the matter between:
J M B MHLAMBI (APPLICANT) and DEPARTMENT OF EDUCATION – KWAZULU NATAL (RESPONDENT) A T THELA (JOINDER PARTY)
DETAILS OF HEARING AND REPRESENTATION
The Applicant referred his dispute concerning the failure by the Selection Committee appointed by the Respondent to short list him and to call him for an interview in regard to the post of Chief Education Specialist (Education Conditional Grant) advertised under reference number UL 008 to the Education Labour Relations Council (ELRC) during May 2003. After numerous adjournments and unnecessary delays the matter was set down for arbitration before me on 14th and 15th December 2004.
The Applicant was represented by Mr Y Ramcheron of the SADTU and the Respondent was represented by Mr M L Zulu. The Joinder Party was represented by Mr M V Khoza and Mr D E Mkhize of NATU.
ISSUES TO BE DECIDED
Whether the failure of the Respondent to shortlist and interview the Applicant and subsequent non-appointment of the Applicant to the post UL008 amounts to an unfair labour practice and if so the relief the Applicant is entitled to.
SURVEY OF THE EVIDENCE AND ARGUMENT
It is common cause that:
a) the Applicant applied for the post of Chief Education Specialist: Education Conditional Grant (Financial Management and Quality Enhancement in Education) advertised under reference number UL 008;
b) Applicant completed the required Z83 form and submitted it timeously to the Respondent. The Applicant further complied with the requirements set out in the advertisement;
c) the Applicant was not short listed and interviewed for the post on the grounds that he failed to meet the Interviewing Committees cut-off requirement of 50% and above;
d) The Joinder Party, Mr A S Thela was appointed to the post on 1st October 2003 despite the grievance lodged by the Applicant on 8th September 2003.
The Applicant (MHLAMBI) called Mr Dolan Singh to testify on his behalf. Singh said that he is employed as a Labour Relations Officer with SADTU. His duties, amongst other things, include representing members at disciplinary hearings, conciliations and arbitrations. He also gives advice on a range of labour issues and is in constant communication with other unions, the KwaZulu Natal Department of Education and the ELRC.
He further testified that the Applicant approached him towards the end of October 2003 when he queried whether SADTU was invited to the process in respect of the post for which he applied. He informed the Applicant that SADTU was not invited to the process. In fact he made enquiries from other support staff in his office and they all informed him that no invitation was received from the Respondent or the Interview Committee. He did not see any invitation from the Respondent or the Interview Committee. He pointed out that the issue of invitations to unions is the product of a collective agreement within the ELRC and is based on the notion of observing the process concerning appointments and to ensure that it is fair and transparent. He also said that the onus is on the Respondent to prove that notice was given to the unions.
He further testified that in matters concerning promotions or appointments the Respondent is obliged to keep all documentation including the applications of all Applicants, the curriculum vitae, E C forms, score sheets and the minutes of each sitting of the Interview Committee. Despite the Applicant calling for copies of all these documents which the Respondent undertook to furnish after the pre-arbitration meeting which was facilitated by me, it has failed to do so. No reasonable explanation has been forthcoming from the Respondent as to why the documents has not been furnished to the Applicant.
Neither the Respondent nor the Joinder Party crossed examined the witness, D Singh.
The Applicant testified that he applied for the post in question. He lodged a grievance with the Respondent on 8th September 2003 when he realised that he was not short-listed and interviewed for the post. He said that he was the ideal and best candidate for the post and met all the requirements. He was not only over qualified but he also acted in the post that was created as a result of restructuring. It was the Respondent itself that appointed him as the responsible Manager to run the component, yet the Interview Committee treated him unfairly by not short-listing him. He complained that he was sidelined.
During his testimony his curriculum vita was handed in as evidence. It showed in great detail his extensive qualifications and experience.
After he lodged his grievance, the Respondent wrote to him but he was not satisfied with the explanation as it did not indicate the criteria which was used in the selection procedure. Furthermore the Respondent made the appointment despite him having lodged a grievance timeously.
He also complained that the process of the appointment of the selection panel was not transparent in that Ms A.N. Cele, the Acting Director should have included senior persons from the Directorate on Education Conditional Grants but did not do so. She brought in people from other components. He went on to say that even the Chief Director, Dr Lotter did not have knowledge of the process.
He further stated that the unions including SADTU were not informed of the process and for this reason they did not participate as observers. He made enquiries from the SADTU who told him that they were not invited.
In cross-examination by Mr Zulu, the Applicant conceded that he was not appointed as Acting Chief Education Specialist but for all intents and purposes he did all the work of an Acting Chief Education Specialist. He also conceded that although he was not the only one who qualified for the post from the 16 Applicants who were initially sifted, but due to his excellent credentials he ideally should have been short listed for an interview. He was sidelined.
When he was asked whether he knew any of the 8 short listed Applicant’s who were called for an interview, he said that he did not know any one of them but that he requires the Respondent to produce all the documents including the curriculum vitae and score sheets of the 8 short listed Applicants in order to make a comparison to prove that he did not qualify to be short listed and interviewed.
It was also put to him that he failed to meet the cut-off requirement of 50% when his curriculum vitae was scored. He responded that it was very difficult to dispute this when no documents have been produced. He challenged the Respondent to produce all the documents regarding the post.
He was crossed examined by Mr Khoza who represented the Joinder Party. On the point of being sidelined, he emphasised that he was functioning and executing tasks in the component for 5 months and no other Applicant had this additional experience.
At the end of Applicant’s case, the Respondent was unable to present any evidence because it had no witnesses. The matter was adjourned to enable the Respondent to secure his witnesses.
The next morning Mr Zulu informed the hearing that he had no witnesses to call and therefore closed his case.
The Joinder Party also closed his case without any evidence.
The Applicant argued that the procedure and practice adopted by the Interview Committee was irregular and that the appointment should be set aside on the grounds that:
i) non-invitation of union observers:
In terms of a collective agreement all unions must be invited to the process and in this particular instance neither SADTU nor the other unions were invited.
ii) Composition of selection panel:
The Panel was flawed in that it’s members came from other Directorates. The post is a specialised one and it made sense to acquire its expertise from the Directorate on Educational Conditional Grants.
iii) Bias and prejudice:
The Applicant lodged a grievance on 8th September 2003. The Respondent made the appointment on 1st October 2003 without addressing the grievance. The Respondent only responded to the grievance on 4th December 2003. The Applicant is entitled to fair administrative action which was absent in this case.
iv) Gross unreasonableness:
The Applicant’s curriculum vitae shows that he is more than qualified for the post. The fact that he worked for five (5) months in the post and performed those duties without any problems including handling a budget of R30 million which experience the Applicant’s did not have shows that the Interview Committee acted grossly unreasonably in not short-listing him for an interview.
He further argued that the onus was on the Respondent to rebut the evidence of the Applicant. The Respondent did not lead any evidence in rebuttal. This must weigh heavily in favour of the Applicant. His evidence together with that of his witness has to stand unchallenged.
Apart from suggesting that the appointment be set aside, he argued that the post should be re-advertised and that the whole process should start afresh. In addition he suggested that the Applicant be compensated for the unfair labour practice committed by the Respondent.
The Respondent chose not to present any argument.
The Joinder Party argued that he deserved to be appointed to the post and that it should not be interfered with. There was no evidence to suggest that he is an unsatisfactory appointee or that he was not the best man for the job.
ANALYSIS OF THE EVIDENCE AND LEGAL PRINCIPLES
The onus is upon the Applicant to show that he complied with all the requirements for the Post and that the Respondent committed an unfair labour practice by appointing the Joinder Party to the post.
An important feature of this case is the failure of the Respondent and the Joinder Party to give evidence. It goes without saying that the evidence of the Applicant remains unchallenged. In essence the Applicant complained that he was sidelined for the position on the grounds that:
i. the union observers were not invited to the process of short-listing and interviews;
ii. the selection panel was not properly constituted;
iii. the Respondent was biased and acted to the prejudice of the Applicant;
iv. the Respondent was grossly unreasonable in not interviewing the Applicant.
The clear evidence and argument of the Applicant has supported these four grounds. There is nothing before me that rebuts this evidence. I am obliged therefore to consider only the evidence before me and nothing else. To do otherwise would lead to a gross irregularity.
The Respondent was given ample opportunity to produce all the documents that enabled the Interview Committee to arrive at its recommendations and upon which the Respondent eventually made the appointment. The pre-arbitration meeting which the parties were requested to hold was aborted.
The purpose of a pre-arbitration meeting is to enable the parties to narrow down the issues so that the hearing may take place in an orderly fashion coupled with speed and efficiency. The failure by the parties to do what is required of them has led to unnecessary delays and wastage of monies.
Of great importance in a pre-arbitration meeting is the exchange of documents including the vital documentation and information concerning the curriculum vitae of the initial 16 short-listed Applicants, the E C forms, the criteria used in the short-listing process, the score sheets and the like. Sadly the Respondent failed to produce these documents and information that go to the root of this dispute.
Notwithstanding the undertaking given by the Respondent to produce the documents and information in question at a subsequent pre-arbitration meeting facilitated by me, the Respondent failed to do so. The initial explanation for its failure to do so was that it moved its offices from Ulundi to Pietermaritzburg and that all the documents and information was packed in boxes that could not be located.
The arbitration finally got underway on 14th December 2004 with the leading of evidence. Given the lengthy lapse of time between the move of the Respondent from Ulundi to Pietermaritzburg and 14th December 2004 it appears that the Respondent is hiding something by not divulging the information and documentation. The conduct of the Respondent is unacceptable and is against the grain of what is fair and just. The Respondent by acting evasively has not assisted in an attempt to find the truth and clearly the Applicant has been treated unfairly.
Moreover the Respondent did not offer a reasonable explanation either for its failure to produce the documentation and information or to call witnesses to testify in order to rebut the evidence of the Applicant and in particular to show that it acted fairly in making the appointment of the Joinder Party.
What is equally strange is the failure of the Joinder Party to also give evidence although he was present at the proceedings. A negative inference must be drawn against him.
Turning to the evidence of the Applicant and in the absence of any other evidence to the contrary, it is clear that he was the best candidate for the post. He had the necessary qualifications and experience and on this basis alone he ought to have been appointed to the post.
It is also evident that the Respondent has committed material procedural irregularities by not inviting the Unions to the process as a whole and this tantamounts to an unfair practice. The Respondent by appointing the Joinder Party to the post when it well knew that there was a dispute lodged by the Applicant has acted in bad faith.
Having considered all the evidence and arguments I am of the view that the Applicant has discharged the onus by proving that the Respondent has committed an unfair labour practice in relation to the post in question. The Respondent has failed to show that its conduct was fair in all the circumstances.
The next step is to determine the appropriate relief to be granted to the Applicant. The Applicant submitted that the appointment of the Joinder Party should be set aside and in the alternative claims compensation. I am of the view that the setting aside of the appointment is appropriate in this case.
I make the following award:
1) the dispute lodged with the ELRC by the Applicant is upheld;
2) the appointment of Mr A T Thela (Joinder Party) in respect of the post UL008 is invalid and hereby set aside;
3) the Respondent is ordered to re-advertise the post UL008 in respect of the Chief Education Specialist (Educational Conditional Grant) within thirty (30) days from date hereof and to make a fresh appointment;
4) there is no order as to costs.
EDUCATION LABOUR RELATIONS COUNCIL
CASE NUMBER PSES 744-03/04 KZN
APPLICANT J M B MHLAMBI
RESPONDENT DEPARTMENT OF EDUCATION
JOINDER PARTY A T THELA
ARBITRATOR P GOVINDASAMY
DATE OF ARBITRATION 14 & 15 DECEMBER 2004
APPLICANT MR Y RAMCHERON (SADTU)
RESPONDENT MR M L ZULU
JOINDER PARTY MR D E MKHIZE (NATU)
1 the dispute lodged with the ELRC by the Applicant is upheld;
2 The appointment of Mr A T Thela (Joinder Party) in respect of the post UL008 is invalid and hereby set aside;
3 The Respondent is ordered to re-advertise the post UL008 in respect of the Chief Education Specialist (Educational Conditional Grant) within thirty (30) days from date hereof and to make a fresh appointment;
4 There is no order as to costs.
DATE OF AWARD 21 JANUARY 2005