Case Number: ELRC 22-14/15WC
Province: Western Cape
Applicant: Vincent Valentino Parry
Respondent: South Cape FET College
Venue: District office of the Department of Education in George
Award Date: 27 April 2015
Arbitrator: Jonathan Gruss
Panellist/s: Jonathan Gruss
Case No.: ELRC 22-14/15WC
Date of Award: 27 April 2015
In the ARBITRATION between:
VINCENT VALENTINO PARRY
SOUTH CAPE FET COLLEGE
Applicant’s representative: In person
Applicant’s address: 18 Bailie Street, Lavalia
Respondent’s representative: Mr Majola / Ms Tyler
Respondent’s address: 25 Mitchell Street
Telephone: (044) 8840359
Telefax: (044) 8840361
DETAILS OF HEARING AND REPRESENTATION
1. The dispute was referred for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The hearing was held at the District Offices of the West Cape Department of Education in George on 13 February 2015 and at the Offices of the South Cape FET College in George on 16 April 2015 and 17 April 2015. The proceedings were electronically recorded. The Applicant, Vincent Valentino Parry appeared in person and conducted his own representation. The Respondent, South Cape FET College was represented by Mr Majola, the acting deputy principal corporate services and Ms Tyler, the acting assistant director Human Resources.
ISSUE TO BE DECIDED
2. I am required to determine whether the Respondent, South Cape FET College committed an unfair labour practice as contemplated in terms of Section 186(2) of the LRA in not appointing and promoting the Applicant to the advertised post of Programme Manager: National Certificate Vocational Safety & Security. .
3. At the commencement of the arbitration hearing, the parties agreed that the following were accepted as common cause facts, namely:
3.1 The Applicant initially commenced employment with the Respondent during 2009 / 2010 as a Senior Lecturer, Programme Management Safety in Security.
3.2 The post of Programme Manager: National Certificate Vocational Safety & Security was advertised by the Respondent internally. The closing date for the submission applications for the post was on 14 December 2012 and the salary scale of the advertise post was R218 388.00 per annum that excluded a 37% service benefits allowance. The position advertised was for a three year fixed term period.
3.3 The Applicant was short listed and on 30 January 2013 interviewed for the post. .
3.4 The interview panel comprised of Mr Tiyo the chairperson, Mr Coerecius and Ms Habelgaarn.
3.5 On 9 May 2013, the Applicant was notified that he was not successful in his application to be appointed to the aforesaid advertised post.
3.6 The Respondent thereafter decided to redo the process in that, the Deputy Chief Executive officer corporate services Mr Dyabaza, did not recommend the appointment of the recommended candidate. The interview panel recommended Ms Van Der Laan to be appointed. The recommended candidate, Ms Van Der Laan in terms of the advertisement did not have the appropriate training as educator and did not possess three years teaching experience in the field of safety in society. The Applicant also did not, according to the advertisement, have the appropriate training as an educator. The Applicant after the interviews complained to management that he had a problem with Mr Coerecius and Ms Habelgaarn’s participation in the interview panel in that he had previously experienced problems with them.
3.7 On 25 January 2012 he lodged a complaint with Mr Dyabaza in that his Head of Department, Ms Habelgaarn was about to appoint Ms Van der Laan as the acting Programme Manager. As a consequence to the complaints he lodged with Mr Dyabaza the acting appointment of Ms Van der Laan was withdrawn.
3.8 It was further decided to externally advertise the position in order to increase the pool of candidates.
3.9 On 12 June 2013, the Applicant after been shortlisted was interviewed. The second interview panel on 14 June 2013 recommended as first choice Ms Van Der Laan, as second choice Ms Stemmet and third choice the Applicant.
3.10 Ms Stemmet was shortlisted on both occasions but only invited for the second interview. The second interview panel comprised of Mr Tiyo, an Assistant Director Corporate Services as the chairperson, Ms Snyders, a Head of Department: Tourism / Hospitality and Mr Van Eck, an internal Councillor.
3.11 On 19 June 2013, the Deputy Chief Executive Officer: Corporate Services Mr Dyabaza again did not recommend Ms Van Der Laan’s appointment in that she was not appropriately qualified. He pointed out to the Chief Executive Officer that the suitable candidate was Ms Stemmet.
3.12 On 12 August 2013, the Chief Executive Officer Mr Ngubelanga decided not to make an appointment and commented that the process had been done twice already by different panels. Both panels shortlisted and nominated Ms Van Der Laan. Noting that she was not appropriately qualified when checked against the advertisement but remained the best when compared through the process with other candidates he decided that the Respondent appoints Ms Van Der Laan on an acting capacity for six months period and that the post thereafter be re-advertised.
3.13 On 15 August 2013, Ms Van Der Laan was appointed as the acting Programme Manager: Safety in Society. PL2 at the Oudtshoorn Campus for six months period commencing on 19 August 2013 and ending on 31 December 2013.
3.14 After Ms Van Der Laan was appointed to act in the post, the Applicant purportedly became ill and thereafter failed to tender his services. During March 2014 the applicant was dismissed on the grounds of absconding. He did not challenge his dismissal by referring an unfair dismissal dispute. The Applicant concedes that as far as he was concerned he was Ms Van Der Laan senior and therefore he was not prepared to subject himself to her supervision and control. He felt that he should have been appointed to act in the post instead of Ms Van der Laan.
3.15 The position of Programme Manager: Safety in Society was again advertised during February 2015 this time as a permanent post.
4. The Applicant claims that the Respondent committed a procedural irregularity in the appointment process and the panellists were biased towards him. He was the best candidate having better qualifications than Ms Van der Laan and had more experience than her. He had been performing the duties of a manager in the Safety in Society department. Considering his experience and superiority he should have been appointed to act in the position. He seeks compensation as relief. The Respondent submitted that the decision not to appoint Ms Van der Laan in the advertised post but to appoint her to temporarily act in the position was intended to afford Ms Van der Laan an opportunity to obtain the required education qualifications.
SURVEY OF EVIDENCE AND ARGUMENT
5. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
ANALY SIS OF EVIDENCE AND ARGUMENT
6. It has become trite law that there are three basic requirements for a fair appointment or promotion. The procedure must have been fair, there must have been no discrimination, and the decision must not have been grossly unreasonable.
7. The principles which determine promotion disputes are summarised by Commissioner Rycroft in Dlamini v Toyota SA Manufacturing (2004) 25 ILJ 1513 (CCMA) at 1517 where he is reported as follows:
“The principles which must determine this dispute are, in my view, the following:
1. In the area of appointments and promotions, in the absence of gross unreasonableness which leads the Court or the CCMA to draw an inference of mala fides, the CCMA or Court should be hesitant to interfere with the exercise of management’s discretion.
2. In drafting the unfair labour practice provision, the legislature did not intend to require arbitrating Commissioners to assume the roles of employment agencies. The Commissioner’s function is not to ensure that employers choose the best or most worthy candidates for promotion, but to ensure that, when selecting employees for promotion, employers do not act unfairly towards candidates.
3. The relative inferiority of a successful candidate is only relevant if it suggests that the superior candidate was overlooked for some unacceptable reason, such as those listed in section 6 of the EEA (Employment Equity Act 55 of 1998).
4. The division of the unfair labour practice jurisdiction between the Labour Court and the CCMA indicates that the legislature did not intend Commissioners to concern themselves when deciding disputes relating to promotion with the reasons why the employer declined to promote the applicant employee, but rather with the process which led to the decision not to promote the employee when selecting a candidate for promotion are relevant only insofar as they shed light on the fairness of the process.”
See also Cullen and Distell (Pty) Ltd  8 BALR 834 (CCMA).”
8. In Goliath v Medscheme (Pty) Limited (1996) 17 ILJ 760 (IC)1 at 768 the Industrial Court is reported as follows:
“Inevitably, in evaluating various potential candidates for a certain position, the management of an organisation must exercise a discretion and form an impression of those candidates. Unavoidably this process is not a mechanical or mathematical one where a given result automatically and objectively flows from the available pieces of information. It is quite possible that the assessment of the candidates and the resultant appointment will not always be the correct one. However, in the absence of gross unreasonableness which leads the Court to draw the inference of mala fides, this Court should be hesitant to interfere with the exercise of management’s discretion.” See also Dumisa v University of Durban-Westville & others  7 BALR 753 (CCMA) especially at 760.
9. In the case of Mbatha v Durban Institute of Technology (2005) 26 ILJ 2454 (CCMA) Commissioner Maloney is reported as follows: “A candidate has ‘no right to promotion but only to be fairly considered for promotion.”
10. As was said in Public Servants Association obo Dalton & Another v Department of Public Works  9 BALR 1177 (CCMA) at 118 F–G, an employee will only be considered for promotion by the CCMA, or for that matter by an arbitrator, if he or she shows both unfair conduct on the part of the employer as well as that he or she would have been promoted, but for that unfair conduct. There must be a causal connection between the unfair conduct proved and the failure to promote the employee (see also Garbers, Contemporary Labour Law, Vol 9, No 3 of October 1999 at p30 and the cases cited there.)
11. Quoting Professor PAK Le Roux writing in Cheadle Landman Le Roux and Thompson Current Labour Law 1991/1992 at 17: ‘The court should be careful not to intervene too readily in disputes regarding promotion, especially to senior management positions, and should regard this as an area where managerial prerogative should be respected unless bad faith or improper motives such as discrimination are present.’
12. There exists no real factual dispute except whether the Applicant should have been recommended and appointed to the advertised post. The appointment (promotion) processes was fraught with the irregularities, Ms Stemmet was shortlisted but not interviewed when the post was initially advertised and therefore as far it relates to her, she was denied a fair opportunity to be considered and compete with other candidates in the first interview. The Applicant submitted that he had a problem with two panelists of the first interview panel, namely Mr Coerecius and Ms Habelgaarn in that he had previously lodged a complaint concerning them attempting to appoint Ms Van der Laan. The Respondent decided to re-advertise the post and redo the appointment process and the Applicant was invited to a second interview and was interviewed. Therefore any irregularity that may have occurred during the first process was remedied by the Respondent redoing the process. As it relates to the second process the only argument in relation to the awarding of points (scores) by the panellists was that there was an error in the calculation of the marks in relation to the points awarded by Mr Snyder for Ms Stemmet. The correct calculation did not advance the Applicant’s scoring in that Ms Stemmet should have received an overall mark of 198 instead of 203 whereas the Applicant’s overall score was 194 and Ms Van der Laan was 2009. It was further argued by the Applicant that the marks awarded by Ms Snyder were out of sync compared to the marks awarded by the other panellists. For example, under the heading knowledge and insight regarding the post, Ms Snyder gave Ms Van der Laan a mark of 21 and Ms Stemmet a mark of 12 and the Applicant a mark of 15. Whereas, under the same heading Mr Van Eck and Mr Tiyo gave them all each a mark of 15. When one is assessing marks based on interviews the marks awarded are an interviewer’s subjective assessment how a candidate fared in an interview. Unlike assessment based on documentation such as a curriculum vitae, the awarding on marks are more easily scrutinised. The Applicant’s main thrust in his challenge is that his qualifications are more superior to that of Ms Van der Laan. It may be so, in that he possesses a REQV 14 qualification whereas Ms Van der Laan possess only a REQV 13 qualification. However the relevance to a specific vocation is a factor that one cannot ignore. The Applicant has a Correctional Service Management National Diploma and a B.Tech degree in Correctional Services Management whereas Ms Van der Laan has a National Diploma in Police Administration. The Applicant’s experience excluding his employment with the Respondent relates to him being employed by the Department of Correctional Services for 18 years. He finished off at the Correctional Services as a Correctional Officer Grade 1 whereas Ms Van der Laan had 20 years service in the South Applicant Police Services. According to her CV she was an academic lecturer at the Police Academy in Oudtshoorn for approximately 9 years and she was a commissioned officer and left the police as a Captain. The Applicant considered himself to be more experienced and senior to Ms Van der Laan. He testified about his involvement and duties as a representative to the Respondent Academic Board. The Respondent argued that the Applicant was only a representative and this does not mean that he formed part of senior management or management.
13. The only fatal irregularity I can find in both processes was the absence of a representative (s) from the South Cape College Council on the interview panels. In terms of Item 3.3 of Chapter B of Personal Administration Measures (PAM) an interview committee shall comprise in the case of colleges, one department representative, as observer and resource person; the head of the institution, except in the case where he or she is an applicant; member of the College Council, excluding educator members who are applicants’ to the advertised post and one union representative per union that is a party to the provincial chamber of the ELRC. The union representatives shall be observers to the process of short listing, interviews and drawing up the preference list. In the case of colleges, the interviewing committee shall submit its ranked, preference list to the College’s Council for their recommendation to the relevant employing department. Unfortunately, the fatal irregularity is only academic.
14. In the matter SA Police Service v SSSBC, Robertson NO & Noonan case no P426/08, Cheadle AJ at  held:
“(a) There is no right to promotion in the ordinary course; only a right to be given a fair opportunity to compete for a post.
(b) Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice.
(c) The employee is not denied the opportunity of competing for a post then the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason.
(d) As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.”
15. On Appeal in, Noonan v Safety & Security Sectoral Bargaining Council and others
 9 BLLR 876 (LAC), the LAC indicated that there must be a causal connection between the consequences of the procedural irregularity (omission) and its unfair effect on the promotion process.
16. In the matter SA Police Service v Safety & Security Sectoral Bargaining Council & others (2010 ) 31 ILJ 2711 (LC), the Respondent, a member of the SA Police Service, had occupied the post of inspector for eight years when the post was upgraded and advertised. The employee applied for promotion and, after an evaluation process, she was one of only three candidates shortlisted for promotion. However, the evaluation panel recommended that the post be re-advertised externally to attract more applicants. No interviews were held and no appointment was made to the upgraded post. The employee lodged an internal grievance concerning the decision to re-advertise the post. The parties failed to resolve the grievance and a dispute was referred to the relevant bargaining council, the SSSBC. An arbitrator found that, although the national commissioner was not obliged to promote the incumbent to an upgraded post or to an advertised post, he had to exercise his discretion not to promote in a manner that did not constitute an unfair labour practice. The arbitrator was of the view that it was unfair not to promote the employee because the decision to re-advertise was made in an arbitrary manner. The arbitrator ordered the SAPS to promote the employee retrospectively. The Labour Court held that even though the evaluation panel had made a recommendation to the national commissioner, no final decision had yet been made. The referral to arbitration was thus premature.
17. Accordingly, based on Case Law, before a promotion dispute can come into existence, the employer must have made an appointment. The Respondent did not make an appointment and elected rather to re-advertise the post for the third time and rather as an interim measure appoint someone to act in the post. The Respondent is bound by its advertisement and therefore the successful candidate must have a credible three-year post matric (REQV) qualification which must include appropriate training as an educator and at least three years teaching experience in the field of Safety in Society. The fact that the Applicant did not possess appropriate training as an educator he is disqualified and that is the reason why Ms Van der Laan was not appointed
What is a promotion?
18. The Applicant claims that he viewed the appointment of Ms Van der Laan as a promotion and the failure to appoint him in the acting position considering what had transpired previously amounted to unfair treatment relating to promotion.
19. Item 1.3 of Chapter D paragraph 1 of Personal Administration Measures (PAM) regulates acting allowances. And stipulates that an educator may only be appointed to act in a post that is one post level higher than his current position. Within 14 days of notification by the employer, Council for further education and training institution shall be requested to recommend to their employer the educator to be appointed to act in a higher post. The acting allowance that will apply is a difference between the acting person’s current salary (without benefits) and the commencing notch of the higher post (without benefits) that applies to the position in which the person is acting. Where the acting pe rson’s current salary (without benefits) equals or exceeds the commencing notch of the higher post (without benefits) that applies to the position in which the person is acting, the acting allowance that will apply is a notch increase. An acting allowance for an educator acting in a higher vacant and funded post may only be paid if the educator is appointed to act for period longer than six weeks, but limited to a maximum of 12 months.
20. In determining whether the appointment of a person into acting post would amount to a promotion, one must note that the acting appointment is a temporary measure whereby an incumbent would receive an acting allowance for acting. The incumbent for all practical purposes would be forming the task of a caretaker pending the recruitment, appointment and promotion of someone into the post permanently. Therefore, at the end of tenure of acting would this amount to a demotion? I think not in that such an appointment is temporary and is never intended to become permanent. The acting appointment of Ms Van der Laan does not amount to a promotion. Had the Applicant in the light of Ms der Laan’s acting appointment requested at the conclusion of the acting period to be afforded an opportunity to act in that he also wanted an opportunity to obtain the experience by acting, he may have had a case relating to benefits. Unfortunately the Applicant never applied or specifically requested a chance.
21. I find that the Respondent, South Cape FET College did not committed an unfair labour practice as contemplated in terms of Section 186(2)(a) of the LRA as it relates to the non-appointment of the Applicant, Vincent Valentino Parry. The Applicant is not entitled to any relief
Name: Jonathan Gruss