Case Number: PSES880-17/18 EC
Province: Eastern Cape
Applicant: Naptosa obo Theodora Nondumiso Pinkie Mgoqi
Respondent: 1st Respondent Department of Education Eastern Cap & 2nd Respondent Mava Pama
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Umtata District offices
Award Date: 4 October 2018
Arbitrator: Malusi Mbuli
Case Number: PSES880-17/18 EC
Panelists: Malusi Mbuli
Date of Award: 04-10-2018
In the ARBITRATION between
NAPTOSA obo THEODORA NONDUMISO PINKIE MGOQI
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 appointment of the 2nd respondent and non – appointment of the applicant was unfair and constitutes an unfair labour practice as contemplated in section 186(2)(a) of the LRA as amended.
The appointment of the 2nd respondent and the non – appointment of the applicant was fair and did not constitute any unfair labour practice as contemplated by section 186 (2) (a) of the LRA as amended.
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(the LRA). It was set down for arbitration hearing at the Umtata District offices in Umtata on the 19th and 20th of September 2018 before Commissioner M. Mbuli.
2. The applicant Miss. T. N. P. Mgoqi attended the hearing and was represented by Mr. K. Dalasile an official of the applicant’s trade union NAPTOSA.
3. The respondent, the Department of Education (Eastern Cape) was also present at the hearing and was represented by Mr. T. V. Liphapang, an official of the respondent. The 2nd respondent Mr. M. Pama was also present at the hearing and was represented by Mr. A. Tyantsi a shop steward of the applicant’s trade union SADTU.
4. The matter was finalized on the 20th of May 2017 and the parties agreed to file their closing arguments not later than the 28th of September 2018.
ISSUE TO BE DECIDED
5. I am required to determine whether the appointment or promotion of the 2nd respondent and non-appointment of the applicant was unfair and constituted an unfair labor practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015, and if so determine the appropriate remedy.
BACKGROUND TO THE ISSUE
6. The applicant, a female employee, applied for a position of a Deputy Principal – Creative Art level 3 at Mandela Park Senior Primary School in the Umtata District of the respondent. The applicant was not shortlisted to be interviewed for the said position and therefore not considered for appointment to the said position.
7. Five candidates were recommended in terms of section 6 of the Employment of Educators Act including the 2nd respondent who was recommended as a no 1 candidate. The Governing Body recommended the 2nd respondent for appointment to the said position and the Department of Education – Eastern Cape appointed the 2nd respondent Mr. M. Pama who is now occupying the position.
8. The applicant was of the view that the process that led to the appointment of the 2nd respondent and own his non – appointment had been unfair and constituted an unfair labour practice. The applicant also felt that she was a better candidate and stood a chance to be appointed if had been shortlisted she also maintained that the second respondent’s application should have been disqualified, because it had not been properly completed.
9. The issue in dispute is whether the failure to shortlist the applicant was procedurally unfair and amounted to an unfair labour practice as contemplated by section 186 (2) (a) of the Labour Relations Act as amended. It is also not in dispute that the 2nd respondent was recommended as the no 1 candidate by the interviewing panel and the SGB, but the issue is whether the process that led to the appointment was fair.
10. The parties agreed that the decision or power to recommend a candidate to the department rested with the SGB and that the decision to appoint rest with the Department of Education - EC. The applicant then referred an unfair labour practice dispute to the ELRC and the matter was enrolled for arbitration and finalized on the 20th of September 2018 and closing arguments filed not later than the 28th of September 2018.
SURVEY OF EVIDENCE
11. Summary of the evidence of the applicant.
The applicant Ms. Theodora Nondumiso Mgoqi, applied for the position of a Deputy Principal at Mandela Park Senior Primary School in the Umtata District of the respondent.
She was an educator for 22 years since 1996 employed by the respondent teaching life skills, natural science and technology grade 3 – 7 before she applied for the said post, was not shortlisted and therefore not interviewed for the said position of the Deputy Principal.
She however confirmed that she had majored in Math’s, Science, Xhosa and English and Arts and Culture were just credits. She stated that Arts and Culture used to be Creative Arts and these were join to form Life Skills and is qualified to teach Creative Arts. He averred that Creative Arts has two components – visual and performing arts and she has done all the subjects.
She stated that she was not shortlisted for the position in question and Mr. Pama who is not qualified to teach in the primary school, but to teach in the FET phase or University and has no appropriate qualification was shortlisted and appointed to the position of the Deputy Principal. She questioned the criteria used in the filling of the post stating that it did not talk to the primary phase and was designed to advantage Mr. Pama who was not qualified to teach at the primary phase.
She confirmed that there is no standard criteria to be used in the filling in of the positions and that she knows that the criteria is done at the discretion of the panel. The applicant submitted that she has a management qualification which the applicant does not have this qualification should have earned high marks in the criteria as the post of the Deputy Principal is a management position.
The witness testified that at the time she filed her application she attached the transcript of academic record and disputed claims by the employer that the transcript was provided much later during arbitration and was not part of the documents when she applied.
She disputed Mr. Pama’s achievements stating that they were not achievements because he was assisted in order to achieve the said achievements and stated that the Principal told them that the post was for Mr. Pama in the presence of Denga, Khawulele and Fudumele.
She confirmed that Naptosa was part of the observing, of the shortlisting but did not know whether there was an objection or complaint lodged by the Naptosa representative on the process of short listing.
The applicant’s representative then closed her case and the respondent’s representative opened this case by calling their 1st witness Mr. Xolisani Neti who testified as follows:
- That he works for the respondent as a Principal at Mandela Park Senior Primary School since October 1999 and was a resource person in the short listing process for the position of the Deputy Principal in question and it was not for the first time playing this role.
- He averred that all the SGB parties were represented at the shortlisting meeting that and there were SADTU and NAPTOSA observers that were observing the short listing. He stated that the short listing panelists were not conducting short listing for the first time and were trained to conduct short listing.
- He confirmed that everyone in the short listing meeting was satisfied with the process and this fact was confirmed with them and there were no objections and he only learnt about the applicant’s grievance later. He stated that if there was a complaint or grievance he would have dealt with at that stage.
- He stated further that the applicant has studied Maths, Science, and Xhosa and English as her majors and that the 2nd respondent has majored in creative arts which were the requirement for the post of the Deputy Principal.
- He stated that the applicant’s transcript was not attached to the application of the applicant when it was filed and that there is no way that the panel could have seen that the applicant has done creative arts as additional subject.
- The witness also disputed the applicant’s claim that he said the post of the Deputy Principal was earmarked for Mr. Pama the 2nd respondent and confirmed that he had a good relationship with the applicant before the post was advertised.
- He averred that the criteria in the interviews differ from post to post and is done at the discretion of the panel for short listing in consideration of the requirements of the post and that the management qualification was not the requirement of the post even though it is relevant.
- He testified that the 2nd respondent was better than the applicant because he had the qualifications required, met all the minimum requirements and had a lot of achievement in the fields of Life Skills and Creative Arts.
- He disputed that the candidate’s application should be disqualified because it is not properly completed and stated that in terms of the guide to the form attached information could be considered together with the application form.
The respondent’s representative then called their 2nd and last witness Mrs. Nombini Taleni who gave evidence to the effect that:
- She knows the applicant, Ms. Mgoqi, and they have a good relationship together and she only became aware that the applicant had applied for the post at the short listing. She confirmed that the panel was trained on how to conduct the short and that the criteria to be used at short listing was discussed and agreed by the panelists as it is in their discretion to do so.
- She stated that there were problems, objections and or complaints that were received by the panelists at the short listing stage, that the applicant’s transcript was not attached in the application and it was not possible for them to see it if it was attached.
- She averred that the other candidates had transcripts attached and others did not have transcripts and it was impossible for the panel to see the subjects in respect of those who did not attach the transcripts. She stated that she was also taking minutes in the shortlisting and that the management qualification advantaged Miss Mgoqi in the short listing process.
- She confirmed that both trade unions were present as observers and that the process was fair and no one objected to the manner it was conducted.
ANALYSIS OF EVIDENCE AND ARGUMENT
12. 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.
13. 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 shortlist the applicant.
14. The respondent appointed the 2nd respondent because he was recommended as no 1 by the SGB and that he did meet the minimum requirements of the position of the Deputy Principal and was in fact the best candidate for the job.
15. As indicated above the applicant contests both the procedural and substantive fairness of the appointment of the 2nd respondent and his non - appointment. On the procedural aspect the applicant feel that the failure by the respondent to shortlist her was unfair and disadvantaged her. In this regard evidence point to the fact that the short listing process was fair for the following reason.
- The applicant failed to file or submit the transcript of academic record when she submitted her application and there was no way that the panelists could pick up whether she had the required subjects or not.
- The two employer witnesses testified that the transcript of the applicant was not part of the applicant and the fact that the applicant requested the transcript from the institution concerned much later that the short listing is an indication that the applicant had no transcript at the time of application.
- All the witnesses in this arbitration hearing testified that there were no irregularities in the process of short ling and that there were 2 observers from SADTU and NAPTOSA observing the process without any complaints and objections and that the criteria was set by the panelists as they had discretion to do so. The failure of the respondent to shortlist the applicant was fair.
16. On the substantive issue the applicant submits that she was the better candidate for the position of the Deputy Principal compared to the 2nd respondent.
- Even if the applicant had submitted her transcript which she did not submit evidence point to the fact that the applicant did not major in Life Skills or Creative Arts as required by the advert. The 2nd respondent has a major in Life Skills or Creative Arts.
- As per the panelist criteria the management qualification which the applicant obtained is not a requirement for the job, although it can be an added advantage however she was allocated marks in recognition of that management qualification which favoured her.
- The 2nd respondent listed a number of achievements in this field confirmed by the certificates and evidence of the witnesses and the applicants claim that these are not achievements because he was assisted is rejected.
- The applicant’s claim also that the application of the 2nd respondent should be disqualified because it was not properly filled is also rejected as the instruction on the application form clearly states as follows:
(1) This form combines the information in the standard application form and the standard CV information into one Employment Profile Form. Although the standard form may still be used as an alternative. SGBs require the maximum amount of information in order to shortlist the candidates.
- The point is that the panelists took a decision based on the information that has been provided to them whether in the form, CV or supporting documentation. The scores allocated to the candidates including the applicant and the 2nd respondent were adequate and appropriate in consideration of their attributes.
- The argument of the applicant’s representative that Mr. Pama is not qualified to teach in the Primary phase but Senior and FET phase is also rejected because Mr. Pama has a qualification and required subjects to teach at the primary phase as well.
- The applicant’s claim that the Principal said that the post of the Deputy Principal was for Mr. Pama is also rejected as false and unfounded as not even corroborative evidence was led when the applicant claim that 3 people were present when that was said.
- The criteria were set by the SGB, because the power to recommend the appointment rested with the SGB. This power has to be respected because there is reason for its existence.
17. In this dispute I have no reason to disbelieve the corroborated evidence of the employer witnesses and prefer that of a single witness the applicant who also has a direct interest in this matter. The 2nd respondent met the requirements of the post as envisaged in Regulation 11 of the Employment of Educators Act 76 of 1998.
18. From the discussion above it then follows that the decision by the respondent to appoint the 2nd respondent and not to appoint the applicant was procedurally and substantively fair based on the evidence and argument advanced above.
19. The 2nd respondent was recommended by the SGB as a no 1 candidate and the respondent has the discretion to appoint the 2nd respondent unless there is a valid and reasonable explanation for disregarding that recommendation. The applicant has failed to demonstrate that there was an invalid, unreasonable and unfair reason why the respondent appointed the 2nd respondent.
20. The respondent has the authority and discretion 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.
21. The reason for this is clearly that the ambit of the decision – making powers inherent in the exercising of 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.
22. 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.
23. 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.
24. If one considers had at how the discretion was applied by the respondent in this case it is clear that the criteria lay down above decided by the SGB short listing panel was applied correctly and that the employer cannot be ordered to change their choice because there is no basis or authority for the applicants claim. The applicant has not managed to demonstrate that one or some of the factors for consideration in the decisions above exist for her to challenge the application of the employer’s discretion.
25. There is a clear basis for the respondent to act in the manner described above and the manner in which this discretion was exercised justifies the appointment, because discretion was not exercised in an arbitrary manner, for insubstantial reasons or without applying the mind and obviously not unfairly.
26. There is no authority for the proposition that the courts would interfere at all with the exercise of discretionary powers when such power has been exercised fairly and reasonably.
27. There is no justifiable reason for me to interfere with the exercise of the respondent’s discretion in appointing the successful candidate and the appointment of the 2nd respondent in this matter stands.
28. The appointment of the successful candidate and the non – appointment of the applicant was fair and did not constitute an unfair labour practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended.
29. In the circumstances I make the following award:
30. The appointment of the successful candidate referred to as the 2nd respondent Mr. M. Pama and non – appointment of the applicant Miss. T. N. P. Mgoqi was fair and did not constitute an unfair labour practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015.
31. The applicant’s dispute referred and dealt with here under case number PSES880-17/18 EC is dismissed.
Commissioner : Mr Mbuli