Case Number: PSES127-12/13 KZN
Applicant: NATU obo B.G. Nxumalo
Respondent: Department of Education, KwaZulu-Natal
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 12 March 2013
Arbitrator: SN Pillay
IN THE EDUCATION LABOUR RELATIONS COUNCIL
Case No.: PSES127-12/13 KZN
Date: 12 March 2013
In the ARBITRATION between
NATU obo B.G. Nxumalo
Department of Education – KwaZulu-Natal
Mr. SGE Mdunge –Union Official
Mr. D.N. Dube
DETAILS OF HEARING AND REPRESENTATION
 This arbitration hearing was set down for hearing on the 26th of February 2013 at the respondent’s District Office in Vryheid. The hearing was concluded on the same day and although parties did present oral closing arguments, at their request, they were given 7 days to make supplementary closing arguments in writing.
 The applicant was represented by Mr. SGE Mdunge, an official of NATU, the trade union to which the applicant was a member. The respondent was represented by Mr. D.N. Dube, an employee of the respondent.
 The citation of the applicant was corrected to B.G. Nxumalo and not BB Nxumalo, as indicated on the notice.
 The applicant party indicated that they had requested from the respondent a copy of the minutes of the short-listing committee meeting but the minutes were not forwarded to the applicant. The applicant indicated that the minutes were crucial and they were not able to proceed. An application for postponement was made.
 The respondent indicated that they would be able to obtain the minutes and that the minutes were not lengthy.
 I stood the matter down for approximately 15 minutes and noting that the minutes were very brief (2 pages), the applicant was given 30 minutes to study the document and it was agreed that the arbitration would proceed thereafter. The applicant party was happy to proceed.
 The respondent thereafter advised me that the post in dispute was already filled and the successful candidate had to be joined to the process. After communicating telephonically with the ELRC’s case management officer, Romilla Nunoo, I was informed that the successful candidate was joined to the process and was notified of the proceedings. An email confirming same was sent to me and I informed parties that I would proceed on the basis of the email, and if an affidavit was required, Romilla Nunoo would be required to provide such an affidavit.
BACKGROUND TO THE ISSUE & FACTS THAT ARE COMMON CAUSE OR UNDUSPUTED
 The applicant applied for the post number DoE/1006/11 which was advertised in HRM Vacancy Circular No. 01 of 2011. The post was that of Superintendent for Education Management (Ward Manager) in the Vryheid District.
 There were 117 applications for the post and the short-listing committee agreed that they would do the short-listing in 2 phases. In the first phase they would assess the applications by scoring candidates on only 2 of the 4 categories on which candidates were to be scored. This was category 1 and 3, which carried the greatest weight, ie. 67% of the total score. These categories were:
· Category 1 related to Leadership: Administrative and Management Experience.
· Category 3 related to Professional Development, Educational Experience and Insight.
 The 10 highest scoring applications were selected and were subjected to phase 2 of the short-listing process, ie categories 2 and 4 were assessed. These categories were:
· Category 2: Organisational Experience and Ability ; and
· Category 4: Leadership: Community Involvement.
The scores were added to the prior scores received during phase one and the five applications that received the highest scores were selected for interviews.
 It is the applicant’s case that, in terms of the applicable procedures as agreed in Collective Agreement Number 1 of 2010 (KZN Chamber of the ELRC), all applications should have been considered in terms of all four categories. The failure of the respondent to do so amounted to an unfair labour practice against the applicant.
 It was the respondents case that there was no unfair labour practice against the applicant because:
· the categories for short-listing outlined in the Collective Agreement were guidelines and therefore the Interview Committee was not required to adhere so strictly to the guidelines that every application had to be measured against all four categories outlined in Annexure A of the Collective Agreement.
· The short-listing was done on merit and on rational grounds.
· The applicant’s application was treated in the same manner as all other applications in Phase one of the short-listing.
· The applicant did not provide any evidence to prove that if his application was assessed on all 4 categories, he would have been short-listed, and possibly promoted to the post.
· The applicant’s representative, Mr. Mdunge, was present as an observer at the short-listing meeting where the decision to engage in the 2-phase process was taken. As a representative of NATU, he did not object to the process or state at that stage, that the process was unfair, which he was entitled to do in terms of the procedure . Therefore, NATU, cannot argue at this stage that the process was unfair.
Survey of Evidence and Arguments
 Parties provided a common bundle of documents paginated from page 1 to page 42. The documents were not disputed between the parties and are therefore accepted.
 In addition to the oral arguments, the parties submitted detailed written arguments for consideration. I do not believe it is necessary for me to repeat the entire argument in this award as it forms part of the record of proceedings.
ANALYSIS OF EVIDENCE AND ARGUMENT
 The first issue for determination is whether or not the Interview Committee acted unfairly in engaging in a 2-phase process for short-listing, thereby assessing the applicant’s application on the strength of categories 1 and 3 only. It must be noted that all applications were scored in the same manner in Phase 1.
 It is accepted that Annexure A of the Collective Agreement provides guidelines for short-listing. Clause 1.2 states that:
“The guidelines, reflected in No.2, must however be followed.”
Although the word “must” is used, guideline by their very nature, provide a guide, and are not intended to be mandatory such that no deviation would be permissible. Deviations from guidelines are permissible in appropriate circumstances.
 In this case, there were 117 applications for the position and I would imagine that the rationale for assessing only categories 1 & 3 was too reduce the number of applications such that those that were less meritorious in the highest scoring categories, would be eliminated as their chances of being appointed would be minimal or remote. In this way the short-listing would be completed in approximately half the time.
 There could well have been in excess of 1000 applications and if, following the applicant’s argument, every application had to be assessed in terms of every criteria in each of the four categories, short-listing could take an inordinate amount of time and it just would not be practical.
 The same argument could be applied to this matter where there were 117 applications. As 67% (in terms of score value) of each application was considered before deciding the 10 that would proceed to phase 2, it cannot be suggested that the applicant’s application was arbitrarily excluded, or that the criteria used to exclude his application was not rational.
 Although it could be argued that that subjecting only 10 applications to all 4 categories of assessment, was too few, I do not believe that the method used by the Interview Committee was unfair to the applicant. The union that the applicant was a member of, was present at the short-listing meeting and did not object to the process. There is no evidence of any mala fides, in the exclusion of the applicant’s application. On the contrary, the names of applicants were omitted when the assessments were done ensuring that the assessment was based solely on the content of the application.
 The applicant failed to prove that, had all 4 categories been scored, he would quite likely have been one of the top 5 candidates. If he was not one of the top 10, in the assessment of 67% of the application, it is unlikely that he would be one of the top 5 when the score for the other 33% of the application is added to the scores.
 As stated in OBSERVATORY GIRLS PRIMARY SCHOOL AND ANOTHER v HEAD OF DEPARTMENT OF EDUCATION, GAUTENG 2003 (4) SA 246 (W) 2003 (4) SA p246
Accepting, for present purposes, that the prescribed procedure is peremptory, I am satisfied that strict compliance is not necessary: all that is called for is substantial compliance. See also: Douglas Hoërskool en 'n Ander v Premier, Noord-Kaap, en 'n Ander 1999 (4) SA 1131 (NC) at 11441 - 11451. ................................................
The purpose of the legislation is to ensure that there is a fair and transparent procedure in place for appointing teachers to fill vacancies. Nepotism and the like are to be eschewed. I am satisfied that the procedure that the school followed fully achieved the purpose of the legislation. To hold otherwise would be to elevate form above substance.
 Although the current case relates to office-based posts, the same principles apply and I am satisfied that the purpose of the legislation and the collective agreement was achieved.
 I find therefore, that the applicant has failed to discharge the onus of proving, on a balance of probability, that the decision not to shortlist him as one of the five candidates, constituted an unfair labour practice towards the applicant.
 In the circumstance, I make the following award:
52.1 The application is dismissed.
52.1 There is no order as to costs.