Case Number: PSES748-15/16 EC
Province: Eastern Cape
Applicant: PSA obo X. P. NGCOZA
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Provision of Benefits
Venue: King Williamstown District offices in King Williamstown
Award Date: 18 June 2016
Arbitrator: Malusi Mbuli
Case Number: PSES748-15/16 EC
Panelists: Malusi Mbuli
Date of Award: 18-06-2016
In the ARBITRATION between
PSA obo X. P. NGCOZA
DEPARTMENT OF EDUCATION (EASTERN CAPE)
SUMMARY: Labour Relations Act 66 of 1995 – alleged unfair labour practice relating to promotion in terms of section 186(2)(a) – whether the non – appointment of the applicant was unfair and constitutes an unfair labour practice as contemplated in section 186(2)(a).
DETAILS OF THE HEARING AND REPRESENTATION
1.The matter came before the ELRC for arbitration in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995. It was set down for arbitration hearing at the King Williamstown District offices in King Williamstown on the 13th of April 2016 and the 17th of June 2016 before Commissioner M. Mbuli.
2. The applicant Mrs. X. P. Ngcoza attended the hearing and was represented by Mr. S. Mtshongwana an official of the applicant’s trade union PSA.
3. The respondent Department of Education (Eastern Cape) was also present at the hearing and was represented by Mr. D. T. Ngalwana, an official of the respondent.
4. The matter was finalized on the 17th of June 2016 and the parties also filed their closing arguments on the same day the 17th of June 2016.
ISSUE TO BE DECIDED
5. I am required to determine whether the non-appointment or non – promotion of the applicant was unfair and constituted an unfair labor practice as envisaged by section 186 (2) (a) of the Act, and if so the appropriate remedy.
BACKGROUND TO THE ISSUE
6. The applicant, a female person applied for the positions of Deputy Chief Education Specialist (EDO) at the King Williamstown District.
7. The applicant was not shortlisted for the said position and it follows that she was not the appointed person to the said position.
8. The applicant does not want the appointment of the successful candidate or candidates to be set aside and does not argue that she was the best candidate for the said positions. She wants to be remunerated at the level of Chief Education Specialist as her remedy.
9. The respondent argue that the applicant was not shortlisted because her driver’s license had expired and that the driver’s license was a requirement for appointment to this position.
10. The applicant on the other hand argue that there were no requirements attached to this position, that the applicant attached the expired driver’s license as an added advantage and does not dispute that the driver’s license had expired.
11. The applicant felt that the process that led to her non – appointment was unfair and constituted an unfair labour practice.
12. The applicant then referred an unfair labour practice dispute to the ELRC and the matter was enrolled for arbitration and finalized on the 17th of June 2016.
SURVEY OF EVIDENCE
13. The facts in this dispute were common and therefore the parties did not lead any evidence in this arbitration hearing but produced supporting documentation and presented brief oral arguments because the facts were common cause.
14. The facts referred to above are summarized in the topic dealing with the background to the issue above.
15. It then follows that there was no evidence recorded at the arbitration hearing even though oral arguments were recorded and that record of the party’s arguments and documents will form the record of this hearing.
ANALYSIS OF EVIDENCE AND ARGUMENT
16. This matter was referred to the ELRC in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015.
17. Section 185 (b) of the Labour Relations Act 66 of 1995 as amended in 2015 provides that every employee has a right not to be subjected to an unfair labour practice. The applicant feels that the employer has committed an unfair labour practice by failing to appoint her.
18. The applicant as indicated above does not have a problem with the appointment of the other candidates and does not want the ELRC to set aside such appointments but want to be remunerated at the level of the Chief Education Specialist.
19. As indicated above the applicant contests the procedural fairness of her non – appointment because she was not shortlisted. It is not in dispute that her driver’s license had expired at the time of application but she says that the driver’s license was not a requirement for the position because they were requirements spelt out by the respondent when the positions were advertised.
20. The issue that this award has to deal with is whether there were requirements for these positions when they were advertised and whether they included a driver’s license.
21. In order to deal with this part the employer representative produced the advertisement for the said position as it appears with others in the bulletin and this advertisement indicated that there were requirements for the above positions and a valid driver’s license was one of them.
22. He further argued that there is no position that is advertised by the D.O.E without requirements and that the nature of the job that is done by the Chief Education Specialist requires them to drive when visiting schools.
23. The applicant insisted that there were no requirements for the position even experience, educational qualifications and other attributes. The applicant’s argument does not make sense at all as the requirements for the position guides candidate on what is required of them in the performance of their duties when appointed.
24. The applicant’s argument cannot be accepted as it simple does not make sense and on a balance of probabilities have no choice but to accept the respondent’s argument and evidence.
25. The applicant simple wanted to be automatically promoted outside the recruitment policy and this cannot be accepted and it is again policy and prescripts of a fair labour practice.
26. From the argument above it then follows that the decision by the respondent not to appoint the applicant was procedurally and substantively fair based on the evidence and argument advance in this matter.
27. The respondent has the authority to appoint but has a responsibility to exercise such discretion reasonable and fairly. In Arries v/s CCMA & others (2006) 27 ILJ 2324 (LC) the court held that there are limited grounds on which the arbitrator, or court, may interfere with the discretion which had been exercised by a party competent to exercise that discretion.
28. The reason for this is that is clearly that the ambit of the decision – making powers inherent in the exercising of a discretion by a part, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised.
29. The court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a bias manner.
30. In City of Cape Town v/s South African Municipal Workers Union obo Sylvester & others (2013) 34 ILJ 1156 LC, (2013) 3 BLLR 267 (LC) it was held with reference to Arries decision above, that the overall test is one of fairness. In deciding whether the employer has acted fairly in failing or refusing to promote the employee it is relevant to consider some of the following factors.
- Whether the employer’s decision was arbitrary, or capricious, or unfair.
- Whether the employer failed to apply its mind to the promotion of the employee.
- Whether the employer’s decision not to promote was motivated by bad faith.
- Whether there were insubstantial reasons for the employer’s decision not to promote.
- Whether the employer’s decision not to promote was based upon a wrong principle.
31. If one looks at how the discretion was applied by the respondent in this case it is clear that there was a valid reason for the respondent to disregard the applicant’s application. There is absolutely no basis for the applicants claim for unfair labour claim.
32. The non – appointment of the applicant was procedurally and substantively fair and did not constitute any unfair labour practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended. In the circumstances I make the following award.
33. The non - appointment or failure to promote the applicant Mrs. X. P. Ngcoza was fair and did not constitute an unfair labour practice as contemplated by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015.
34. The applicant is therefore not entitled to any relief.
35. There is no order as to costs at this stage.
Commissioner: Malusi Mbuli