Case Number: PSES 32-10/11NW
Province: North West
Applicant: SADTU OBO John Ramohale Nkutshweu
Respondent: Department of Education - North West
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 27 March 2011
Arbitrator: E. Maree
Panellist : E. MAREE
Case Number : PSES32-10/11NW
Date of Award : 27 MARCH 2011
In the ARBITRATION between
SADTU OBO JOHN RAMOHALE NKUTSHWEU
DEPARTMENT OF EDUCATION – NORTH WEST
Applicant’s representative Mr. T. Phorabatho
Applicant’s address Fax 086656 7259
1st Respondent’s representative Ms. L. Lejaka
1stRespondent’s address Fax  388 1703
2nd Respondent’s representative Mr. L. Tsajwe
2nd Respondent’s address Fax 086 565 5383
DETAILS OF HEARING AND REPRESENTATION
1. The matter commenced on the 27th of January 2011 and was concluded on the 15th of March 2011 at Crocodile Street, Brits.
2. The applicant was represented by Mr. T. Phorabatho an official from SADTU, while the 1st respondent was represented by Ms. L. Lejaka an official from Employment Relations and the 2nd respondent by Mr. L. Tsajwe an official from SADTU.
3. A pre-arbitration was held as per rule 19 and recorded in writing.
4. Bundle ‘A’ was submitted on behalf of the applicant and bundles ‘B’ was submitted on behalf of the respondent. The respondent disputed the unsigned minutes of meetings contained in bundle ‘A’.
ISSUES TO BE DECIDED
5. As per the pre-arbitration minutes I have to determine the following:
‘’ Alleged unfair labour practice relating to promotion. The applicant alleges that the SGB failed to make recommendations to the Head of Department and that the Head of Department, in effecting the appointment of the joinder party, acted in an arbitrary way’’
6. In the event that the respondent indeed committed an unfair labour practice, I have to determine appropriate relief which in casu is the promotion of the applicant to the post of Principal.
SURVEY OF EVIDENCE AND ARGUMENT
THE APPLICANTS EVIDENCE
7. The applicant, RAMOHALE JOHN NKUTSHWEU, under oath testified that:
a] He applied for the position of Principal as he ‘worked with kids and had a good feeling with kids’.
b] He had been part of management at the school as was acting as Principal when the position was advertised;
c] He received a letter from Ms. Mangwane who was at the SGB and who later also phoned him and invited him to an interview;
d] He attended the interview on the 16th of December 2009 with 3 other candidates;
e] On the 30th of April 2010 he received the outcome from the Circuit Manager. However, before receiving the outcome he had heard that the 2nd respondent, Ms Ntlatleng did ‘not talk well with the SGB’’ and he also heard that she ‘was giving the impression that she already got the post’’;
f] He heard that Mr. Tshotlhang was number 1, Ms. Ntlatleng was number 2, he was number 3 and Ms. Sedisa was number 4;
g] The SGB recommended Mr. Tshotlhang but SADTU lodged a dispute and said that he ‘’did not answer the questions well’;
h] The SGB then recommended that Mr. Tshotlhang be candidate number 1 and that he must be number 2 and if he is not appointed that the interview process must be restarted;
i] The SGB ‘said’ he was to be candidate number 2 for the post as he had acted as Principal and they [SGB] thus knew his track record as they had worked together for a long time;
j] All these issues were raised at the interview panel;
k] He also informed the respondent of his concerns and wrote a letter to the Circuit Manager, the union, the ELRC and SADTU’s National office;
l] He ‘hoped’ the respondent would follow the request of the SGB;
m] As he is acting in the best interest of the learners he is claiming that the process was not fair.
n] The union never responded to his letters;
8. On behalf of the applicant, SUZAN MOGOLATSI, under oath testified that:
a] She is a member of the SGB;
b] She was at the short listing and interview of the Principal position as the chairperson;
c] During the short listing ‘everything was okay’;
‘d] Onica, the representative from SADTU, told them that they must not short list Mr. Sefolo as he had been short listed for another position. They ‘liked’ Mr. Sefolo and did not know’ that they ‘to refuse Onica’s request regarding the short listing’;
e] Onica also told them to appoint the 2nd respondent after the short listing. The SGB however, ‘wanted Mr. Sefolo and liked him as he was the Principal and had the qualities the SGB wanted’;
f] After the interview there was an argument and they told us that they as the SGB must say who they wanted.
g] During the interview the 1st candidate did not answer questions 7 & 9 and they wrote a grievance letter indicating that if candidate 1 or 3 was not appointed the position must be re-advertised’
h] They handed this letter to Mr. Takanyane who she ‘thinks’ is at the Circuit office but she is not sure;
i] They waited for a call from the circuit office but received nothing;
j] They were informed that Mr. Tshotlhang had been appointed in another position and that the 2nd respondent was appointed as Principal;
k] On the 20th of January 2010 a meeting of the review panel was held [bundle ‘B’ page 15] which she attended but she ‘cannot recall’ what happened. The meeting was held as the union lodged a grievance;
l] She recalls bundle ‘B’ page 10 but she did not complete it as the document she completed shows Mr. Tshtolhang as number 1, the applicant as number 2 and the 2nd respondent as number 3;
m] She ‘cannot recall the score’ but at the interview Mr. Tshotlhang was number 1, the 2nd respondent was number 2 and the applicant was number 3;
n] She knows bundle ‘B’, page 12 which she signed on behalf of the SGB.
o] She was the chairperson of the panel and did not tell Dorcas to complete or sign bundle ‘B’ page 11, and she ‘does not know’ who signed as chairperson of the panel;
p] She knows the letter in bundle ‘A’ page 21 – 23 as this is a letter signed by herself and Dorcas;
q] After Mr. Mokoena introduced the 2nd respondent as the Principal they were ‘not happy’ and therefore wrote the letter;
r] The SGB did not sign the ‘assumption of duty’ of the 2nd respondent.
THE RESPONDENTS EVIDENCE
9. On behalf of the respondent THABO MASETE under oath testified that:
a] He is the secretary of the Madiba branch in the Eastern Region;
b] SADTU did not interfere with the selection process, short listing or appointment process;
c] SADTU only ‘played its role’ and did not influence the results of the process;
d] Bundle ‘B’ page 4 ‘is not true’ as the secretary of SADTU was not instrumental in the appointment of the 2nd respondent and was not present during the process as he represented SADTU;
10. On behalf of the respondent AARON PASWANA under oath testified that:
a] He is at NAPTOSA and acted during the interview for the Principal position as ‘active observer’ which was also attended by SADTU;
b] The unions did not interfere in the process;
c] They looked at the candidates for the position and as unions had to observe and had to ensure that the process if fair;
d] He was not present when the SGB wrote page 10 bundle ‘B’ as the union had by then left the process;
SURVEY OF ARGUMENTS
THE APPLICANT’S ARGUMENT
11. It was argued on behalf of the applicant that:
a] They had proven their allegations as the SGB were not involved in the process;
b] The SGB was not in agreement and objected to the selection;
c] The union interfered in the process and the person who signed the preference list was not at the arbitration;
d] The respondent appointed the 2nd respondent unilaterally;
e] SADTU lodged a grievance to show the process was unfair;
THE 1st & 2nd RESPONDENTS’ ARGUMENTS
12. On behalf of the 1st & 2nd respondent, it was argued that:
a] The applicant failed to prove the existence of an unfair labour practise;
b] The evidence of the applicant’s witness ‘proved nothing’ and her evidence as to her position was conflicting. She also had ‘no idea’ regarding the qualifications and background of the 2nd respondent. She also had no idea of her role at the short list or interview process;
c] The failed to proof that he was the best candidate and had to be appointed, as he was not even under the 1st three candidates;
d] The union was fair and objective and it is clear that there was a ploy against the 2nd respondent;
e] The number 1 candidate was appointed elsewhere and as a result the 2nd respondent who was candidate number 2 was appointed;
ANALYSIS OF EVIDENCE AND ARGUMENT
13. Section 186 [a] of the Labour Relations Act 66 of 1995 defines an unfair labour practice as follows:
 Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving –
[a] Unfair conduct by the employer relating to the promotion, demotion, probation [excluding disputes about dismissal for a reason relating to probation] or training an employee or relating to the provision of benefits to an employee’’
14. The applicant had the onus to prove that the decision of the 1st respondent not to promote him but the 2nd respondent amounted to an unfair labour practice.
15. This he dismally failed to do.
16. The evidence submitted by the applicant and his witness, Ms. Mogolatsi fell short of proving an unfair labour practise and consisted mostly of conjecture and hearsay.
17. The essence of the applicant’s evidence was that after being interviewed for the Principal position at Relebogile Primary School, Mr. Tshotlhang was recommended as number one by the SGB. SADTU however, then lodged a dispute about this apparently as Mr. Tshotlhang ‘did not answer the questions well’ .The SGB then indicated that if Mr. Tshotlhang is not appointed, he [applicant] must be appointed and if not, the interview process must be ‘restarted’.
18. According to the applicant the SGB listed him as the second candidate for the post, and not the 2nd respondent, as he had been acting as Principal and the SGB thus knew his ‘track record’.
19. During his evidence in chief the applicant referred to no documents to substantiate his evidence that he was indeed the 2nd candidate on the preference list or that if he was not appointed the interview process must be redone.
20. When cross-examined on this aspect the applicant admitted that he was told this by the SGB who wanted him due to this ‘track record’. The applicant admitted that page 10 bundle ‘B’ shows that the 1st candidate is Mr. Tshotlhang, the second candidate Ms. Ntlatleng [the 2nd respondent] and the third candidate Ms. Sedisa.
21. The applicant claimed further during cross-examination [and in this regard referred to unsigned and disputed minutes contained in bundle ‘A’ page 9] as reflecting that he was the 2nd candidate thus disputing page 10 bundle ‘B’.
22. The applicant was asked during cross-examination why the 2nd respondent could not have been appointed and in response said ‘I don’t know’. It was pointed out to the applicant that in terms of the scores obtained the 2nd respondent was placed second on the list and was thus better than him. Again in answering this the applicant said ‘I don’t know’ and admitted that the 2nd respondent had a higher score than his own.
23. The applicant’s witness, Ms. Mogolatse did no better during her evidence in supporting the applicant’s claim that the respondent committed an unfair labour practise against him.
24. According to Ms. Mogolatse who initially claimed she was the chairperson during the short listing and interview process, they wanted to short list the applicant for the position as they ‘liked him’ but was told by Onica a represented from SADTU not to short list him but to appointed the 2nd respondent.
25. Ms. Mogolatse submitted that they wrote a letter to the Circuit Manager indicating that if the 1st candidate or the applicant is not appointed, there must be a re-interview.
26. It was further submitted by Ms. Mogolatse that she did not complete page 10 bundle ‘B’ as it differed from the one she had completed that listed the applicant as number 2. Ms. Mogolatse testified that although she cannot recall the scores she remembers that after the interview the applicant was scored as candidate number 3.
27. With reference to page 12 bundle ‘B’ Ms. Mogolatse indicated that she signed the document on behalf of the SGB.
28. This document clearly shows that Mr. Tshotlhang is recommended as candidate number 1 by the SGB and the interview panel. It also reflects that the review panel had adjudicated the recommendation and recommended that Ms. Ntlatleng, the 2nd respondent be appointed.
29. If therefore, Ms. Mogolatse admitting signing this on behalf of the SGB it is clear that the applicant never was recommended for this position. Her own evidence that the applicant was number 3 in terms of the scores and number 2 on her document is once again not supported by any documentation and flies in the face of her admission regarding page 12 bundle ‘B’ that in no way shows the applicant as preferred candidate.
30. During cross-examination Ms. Mogolatse was extensively questioned regarding her evidence to such an extent that she made numerous contradictory statements and at some point indicated that she no longer wishes to answer questions!. Later on when cornered regarding her contradiction she would say ‘let’s leave that question’ or would claim not to understand the question.
31. All these contradictions and failure to provide satisfactory answers did not to aid the applicant’s already weak case. Cross-examination further pointed out that Ms. Mogolatse was not who she claimed to be [chairperson of the interview and short listing process] nor had she any idea of the applicable criteria for the post or the qualification or experience of the applicant or 2nd respondent.
32. When asked if the 2nd respondent impressed the interview panel Ms. Mogolatse stated that ‘The way I hear her she showed no capabilities’. However, when asked what the requirements were for a Principal, Ms. Mogolatse stated she ‘could not recall’.
33. In furtherance of this line of questioning Ms. Mogolatse was asked why the 2nd respondent was not the right person for the position of Principal. This question was not answered by Ms. Mogolatse and later on when asked why they did not want the 2nd respondent as Principal, Ms. Mogolatse said ‘’I cannot answer that’’.
34. Later during cross-examination Ms. Mogolatse also became confused regarding her position during the process and at the school. Initially she testified that she was the chairperson of the short listing and interview panel. Later she however, stated during cross-examination that she was the chairperson of the SGB and was present as at the interview panel as member. However, late during cross-examination, Mogolatse stated that she was not the chairperson of the SGB but that she was the secretary of the SGB and acted as chairperson of the SGB during the interview. This was however, not the end of this as Ms. Mogolatse later admitted that she was only an additional member of the SGB.
35. The applicant failed to show that he was a more suitable candidate than the 2nd respondent and that in not promoting him to the position of Principal.
36. The evidence on the applicant in no way shows that he had objectively speaking better attributes than the 2nd respondent and that the respondent failed to explain why he had not been promoted.
37. The evidence clearly shows that the applicant had not been listed as one of the first 4 candidates for the position as per the respondent’s bundle. The applicant’s evidence that he was the preferred candidate was not supported by documentary or other evidence and the unsigned documents he referred to carries no weight.
38. The decision of the respondent to promote will not easily be interfered with unless when doing so the respondent was influenced by considerations that are expressly prohibited by legislation or similar thereto.
39. I have not evidence that the decision to promote the 2nd respondent was based on any such factors and indeed was effected in accordance with the recommendations from the relevant panels.
40. It has never been the intention that arbitrators determining promotional disputes must concern themselves so much with the reason for the for the respondent’s decision to promote as with the procedure that led to the decision not to promote.
41. The reasons are only relevant in sofar as they indicate that the process was conducted in bad faith.
42. Once again, the applicant presented no evidence that the process was conducted in bad faith.
43. The applicant failed to prove that the 1st respondent in appointing the 2nd respondent committed an unfair labour practice.
44. The existence of an unfair labour practise relating to the fact that the applicant had not been promoted to the position of Principal had not been proven.
45. The dispute is subsequently dismissed.
DATED AT PRETORIA ON THIS 27th DAY OF MARCH 2011