Case Number: PSES117-15/16 NW
Province: North West
Applicant: SADTU obo Gloria Mooketsi
Respondent: Department of Education North West
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Department of Education Offices, Formo Building, Lichtenburg.
Award Date: 24 October 2016
Arbitrator: Paul Phundu
Panellist: Paul Phundu
Case No.: PSES117-15/16 NW
Date of Award: 24 October 2016
In the ARBITRATION between:
SADTU obo Gloria Mooketsi
(Union / Applicant)
Department of Education-North West
Ms Tshidi Tlhageng
Union/Applicant’s representative: Mr. SD Molete
14th Avenue, Kiesierville
Telephone: 082 790 5151
Respondent’s representative: Mr Martin Keetile
Private Bag x 275
Telephone: 018 388 4107
Fax: 018 388 1703
DETAILS OF HEARING AND REPRESENTATION
 This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) and hereinafter referred to as the LRA. The matter was set-down for arbitration in terms of Section 191(5) (a) of the LRA.
 The arbitration hearing was conducted on 04 & 05 October 2016 at the Department of Education Offices, Formo Building, Lichtenburg.
 The applicant was present at the arbitration hearing and represented by Mr SD Molete, Union Official on behalf of SADTU. The first respondent was represented by Mr Martin Keetile, Employee Relations Official.
 The proceedings were conducted in English and were digitally recorded. I also kept handwritten notes.
 Both parties handed in bundle of documents marked Annexure “A & B” and the contents are not in dispute.
ISSUE TO BE DECIDED
 I am required to establish whether the respondent committed an unfair labour practice in relation to promotion or not, if so, I must determine the appropriate remedy.
BACKGROUND TO THE ISSUE
 The applicant is in the employ of the Respondent as a Post Level 2 Principal at Blydeville Primary School. A position of Deputy Principal Post Level 3 was advertised and the Applicant along with three other candidates was shortlisted for this position. The Applicant was not appointed to the position. On 24 May 2016 the Applicant declared a dispute of an alleged unfair labour practice concerning promotion.
 On the 26 July 2016 conciliation failed and the certificate of non-resolution of the dispute was issued. The matter proceeded to arbitration. The relief sought by the applicant was promotion.
SURVEY OF ARGUMENTS AND EVIDENCE
 The Applicant gave evidence in support of her case and also called Ms van Zyl as a witness. The applicant’s evidence is summarised in paragraphs10 to 12 below.
 Ms Gloria Mooketsi (the applicant) testified under oath that she was not happy with the composition of the shortlisting and interviewing panel. In her view some members of the panel were not supposed to form part of the interview panel. The applicant indicated that she was shortlisted and attended the interviews. She was recommended by the School Governing Body, however, the District Director appointed Ms Tshidi Thlageng to the position of Deputy Principal Level 3. The applicant stated that Ms Tshidi Thlageng failed to respond fully to the questions asked by the panel. The applicant further stated that she is more experienced and qualified than Ms Tshidi Thlageng.
 Under cross-examination the applicant conceded that the person who has the authority to appoint is the District Director not the School Governing Body. The applicant confirmed that she understand the meaning of the word “recommended” to mean the “preferred candidate of the interview panel.”
 The applicant conceded that she scored lower than the successful candidate. The School Governing Body recommended her despite that.
 Ms Sophia Van Zyl testified under oath that she attended the interviews and her role there was to take minutes. Ms Van Zyl indicated that the successful candidate was not self-confident. Ms Van Zyl stated that she was surprised by the big score allocated to the second respondent. She stated that School Governing Body recommended the applicant because of her number of years in the profession and because she had better qualifications. The witness testified that only the district director had the authority to appoint not the governing body. The witness concluded by stating that she did not know who decided on the composition of the panel as most members in that panel were strangers to her.
 Under cross-examination Ms van Zyl testified that she was not sure whether the successful candidate answered all the questions and she could not say that the successful candidate did not answer some question..
 The respondent called Mr J.W. Benton ,the Principal of Blydeville Primary School to give evidence in support of its case. His evidence are summarised in paragraphs16 to 17 below.
 Mr Benton was a member of the interview panel as a resource person. His main responsibility was to guide the interview process and ensure that there was adherence to policy and fairness during the whole interview process. The witness indicated that the School Governing Body, Labour Unions and other Stake Holders were there to recommend the top three candidates. The witness stated that his office, the School Government Body and Labour Unions took the decision to set-up an interview panel. The Principal indicated his office received no complaints regarding the composition of the interview panel. The Principal further indicated that his office received no objection about the interview process and all candidates signed letters accepting and confirming fairness of the interview process. The witness confirmed that the interview process was fair and no candidate was prejudiced. He testified that the School Governing Body recommended three candidates and that the District Director had the authority to appoint one of them. The applicant was aware of the protocol and the procedure to be followed and he did not lodge a complaint. Complaints should have been reported to the office task team, the district task team and then the Office of the District Director and this procedure was not followed by the applicant.
 Under cross-examination the witness confirmed that it was not true that the interview panel was not known to the applicant.
ANALYSIS OF EVIDENCE AND ARGUMENT
 In terms of section 186 (2) (a) of the LRA, the demotion of an employee falls within the meaning of an “unfair labour practice”. In this regard section 186 (2) provides that “unfair labour practice” means any unfair act or omission that arises between an employer and employee involving … unfair conduct by the employer relating to the promotion, demotion,.. of an employee.” The onus rested on the applicant to prove on a balance of probabilities, an unfair act or omission on the part of the respondent that constituted an unfair labour practice.
 The dispute was referred as an allegation of an unfair labour practice in relation to promotion. I am therefore required to determine whether the respondent’s conduct was unfair in not appointing the applicant to the contested position of Deputy Principal Level 3. To succeed with such a claim the applicant must show that the respondent’s conduct was arbitrary, capricious and therefore unfair.
 The applicant challenged the non-appointment arguing it was unfair because she had better qualifications and experience than the successful candidate. She (the applicant) was recommended by the School Governing Body but was not appointed. The composition of the interview panel was not known to her. Over and above this, she received no explanation regarding her non-appointment from the District Director.
 The applicant testified said some members of the panel were not supposed to be members of the interview panel. The applicant failed to indicate who was supposed to sit in the panel and failed to state how the composition of the panel prejudiced her. The applicant stated that Miss Tshidi Thlageng failed to respond fully to the questions asked by the panel. I reject this statement merely because the applicant was not present when the second respondent was interviewed. I asked her whether she was present when the second respondent was interviewed. She conceded that she was not present and explained that she was told this by a member of the School Governing Body. Her evidence in this regard was hearsay and she did not explain why she did not call this person as a witness. In the absence of an explanation for not calling this person as a witness I attach no weight to the hearsay evidence.
 The applicant conceded that she scored lower than the successful candidate. Despite that the School Governing Body “recommended” her. In her view the meaning of the word “recommended” was that she was the “preferred candidate of the School Governing Body”. It is more probable than not that the successful candidate performed better than the applicant during the interviews and that that was the reason why she was appointed.
 Ms Van Zyl indicated that the successful candidate was not self-confident. I am not persuaded by this evidence because the role of the witness was to take minutes and not to score or assess the performance of the interviewees. She at first testified that “the second respondent did not answer all the questions directed at her.” Ms van Zyl contradicted herself by later testifying that “she cannot say the applicant did not answer the questions directed to her.” Ms Van Zyl concluded by stating that she was not sure whether the successful candidate answered all the questions and she also cannot say she did not answer.. I find that the applicant’s witness was not a credible witness and that he evidence was unreliable.
 The respondent’s witness stated that his office, School Governing Body and Labour Unions took the decision to set-up an interview panel. The applicant did not oppose, challenge or object to this evidence. The respondent’s witness indicated that there was no complaint received by his office regarding the composition of the interview panel. I accept this because the applicant did not disprove this statement.
 The respondent’s witness further indicated that his office received no objection about the interview process and all candidates signed letters accepting and confirming the fairness of the process. I accept this evidence because the applicant did not oppose, object or challenge this statement.
 In Aries v CCMA & others (2006) 27 ILJ 2324 (LC) the Court held that “there are limited grounds on which an arbitrator, or a court, may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of a discretion by a party, 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. 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 biased manner”.
 On the probabilities the applicant was not promoted because the successful candidate performed better during the interviews. The decision of the first respondent was not arbitrary, unfair and capricious.
 In the light of the above the applicant failed to discharge the onus of proving on a balance of probabilities that her non-appointment to the post of the Deputy Principal was unfair.
 Therefore it is my finding that the first respondent did not commit any unfair labour practice as alleged by the applicant.
 I therefore make the following award:
 The applicant has failed to discharge the onus to show that the respondent has committed an unfair labour practice relating to promotion.
 The applicant (Ms Gloria Mooketsi) is not entitled to any relief.
 The application is dismissed.
ELRC Part-time Commissioner
Sector: Public Service