PSES76-18/19
PSES76-18/19
Award Date:
6 May 2019
Case Number: PSES76-18/19
Province: Limpopo
Applicant: SADTU obo Matome Robert Makgobatlou
Respondent: 1st Respondent Department of Education Limpopo, 2nd Respondent Ms Mosima Annah Machaka
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Corner Hospital and Hans Van Rensburg Street, Polokwane, Limpopo Province
Award Date: 6 May 2019
Arbitrator: Ntsepeng Benault Mookamedi
Panellist/s: Ntsepeng Benault Mookamedi
Case No.: PSES76-18/19
Date of Award: 6-May-2019
SADTU obo Matome Robert Makgobatlou
(Union / Applicant)
And
Department of Education (Limpopo Provincial Administration)
(First Respondent)
Ms Mosima Annah Machaka
(Second Respondent)
Applicant’s representative : Mr Moraka Abel Makgaa
91 Biccard Street
Polokwane
0700
Telephone number : (015) 2915418
Fax number : (015) 2911667
Email address : thobjam@webmail.co.za
IN THE EDUCATION LABOUR RELATIONS COUNCIL (ELRC).
DETAILS OF THE HEARING AND REPRESENTATION.
[1] This is an Arbitration Award in the arbitration hearing between the Applicant Mr Matome Robert Makgobatlou (the Applicant), the Department of Education, Limpopo Provincial Administration, the First Respondent and Ms Mosima Annah Machaka, the Second Respondent). The arbitration hearing took place on 25 June 2018, 22 October 2018, 27 November 2018 and was finalised on 26 April 2019. The hearing was conducted within the business premises of the First Respondent at Corner Hospital and Hans Van Rensburg Street, Polokwane, Limpopo Province.
[2] The Applicant attended the arbitration hearing during the dates reflected above and was represented by Mr Moraka Abel Makgaa, a Union Official from the South African Democratic Teachers Union, commonly referred to as “SADTU”.. The First Respondent also attended the hearing and was represented by Mr Kenneth Mawela Masindi, a Deputy Director attached its Legal Services Directorate. Similarly, the Second Respondent also attended the arbitration hearings on all the above mentioned dates.
[3] Ms Boitumelo Sharon Lekgetha appeared as an Observer from SADTU while Mr Sylvester Setati appeared as an Observer from the Professional Educators Union, commonly referred to as “PEU”. The arbitration hearing was both mechanically as well as manually recorded. Prior to the commencement of the arbitration hearing, the Applicant submitted a single bundle of documents as evidence and same was accepted as such and marked as “Bundle A”. The Applicant’s bundle ranged from “Page 01 until Page 32”.
[4] On the corresponding side, the First Respondent submitted a single bundle of documents as evidence and same was accepted as such and marked as “Bundle B”. The First Respondent’s bundle of documents ranged from “Page 01 to Page 97”. No bundle of documents was submitted by the Second Respondent in this matter. Furthermore, the Second Respondent indicated that she stands by the evidence which has been tendered by the First Respondent in dealing with the current dispute before the ELRC. The arbitration hearing is therefore decided on documentary as well as on oral evidence. At the conclusion of the arbitration hearing, both parties addressed me in closing arguments. I have accordingly considered the totality of both parties’ evidence which are more relevant to the current dispute in rendering this Arbitration Award.
NATURE OF THE DISPUTE.
[5] The dispute concerns an alleged unfair labour practice in relation to promotion in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 read together with Clause 9.1.2.1 of the ELRC’s Constitution (Part C, Dispute Resolution Procedures). The dispute is primarily rooted in both section 186 (2) (a) of the LRA as well as in the interpretation and or the application of the ELRC’s Collective Agreement 1 of 2008 (hereinafter referred to as the Guideline For Sifting, Shortlisting and Interview Procedures”. The Collective Agreement has been duly concluded by the respective representatives of both parties involved in this matter and within the auspices of the ELRC on 30 September 2008.
ISSUE TO BE DECIDED
[6] I am required to decide whether or not the First Respondent committed any alleged labour practice in relation to promotion by not shortlisting the Applicant to a vacant Principal Educator’s Post and eventually having shortlisted other job Applicants together with the Second Respondent to the said vacant.
[7] Should I find that the First Respondent’s action against the Applicant constitutes an unfair labour practice as alleged, I shall determine an appropriate relief.
BACKGROUND TO THE DISPUTE
[8] The First Respondent advertised a number of Principal Educator’s Posts in a Circular dated 22 August 2017. The said vacant Posts were within the establishment of various schools and Districts of the First Respondent, one of them being Pula Madibogo Primary School. Pula Madibogo Primary School is geographically located at Mankweng Circuit, Lebowakgomo District, Polokwane, Limpopo Province.
[9] The Applicant together with some of his fellow job applicants submitted applications for contesting the vacant Post. Immediately following the submission due date of the vacant Post, the First Respondent constituted both the Shortlisting as well as Job Interviewing Committees. The Shortlisting Committee shortlisted the Second Respondent and other job applicants to the exclusion of the Applicant in this matter. Following the conclusion of the shortlisting process, the job interview process ensued. The job interview process resulted in the appointment of the Second Respondent to the said Post.
[10] The Applicant considers the appointment of the Second Respondent to be clouded with procedural irregularities because both the Shortlisting as well as the Interviewing Committees were not initially taken through an induction training process as required by the ELRC’s Collective Agreement 1 of 2008. The Applicant later lodged a grievance on 08 December 2018 and same was received by the First Respondent’s designated employee on the same day. The grievance was dealt in terms of the relevant Grievance Rules of the First Respondent.
[11] On 05 February 2018, one of the First Respondent’s District Director, Mr K. D Mothemane formally notified the Applicant that both the shortlisting and interviewing processes of the then vacant Principal Educator’s Post at Pula Madibogo Primary School were nullified. The reason for such nullification was occasioned by the grievance which was lodged by the Applicant together with the Applicant’s six co-grievants.
[12] On 13 February 2018, the School Governing Body (SGB) of Pula Madibogo Primary School formally communicated the same nullification message to the three job applicants and such was to the exclusion of the Applicant in this matter. Feeling dissatisfied about the said state of affairs, the Applicant declared a dispute before the ELRC on 23 April 2018. The dispute was enrolled a conciliation / pre-arbitration hearing process in terms of the Council’s Constitution on 14 May 2018. The Applicant made a formal oral application to have the Second Respondent to be enjoined in the arbitration proceedings.
[13] A Joinder Ruling was rendered by the conciliating Panellist on 16 May 2018. The dispute remained unresolved at the conciliation level where after the Applicant referred the matter to an arbitration level on 23 May 2018.The ELRC initially scheduled the matter down for an arbitration hearing process on 25 June 2018 in terms of Clause 17.2.3 of the ELRC’s Constitution.
SURVEY OF EVIDENCE AND ARGUMENTS.
The Applicants’ case.
The Applicant’s first witness, Mr Matome Robert Makgobatlou testified under oath as follows:
[14] He is employed by the First Respondent as one of the Deputy Principal Educator at Pula Madibogo Primary School. He has been occupying the said position since the period 01 March 2017 until to date. The First Respondent committed an unfair labour practice against him by allowing a fifth panel member to participate in the shortlisting process of such vacant and advertised Post. Such fifth panel member who participated in the shortlisting process was not authorised to do so as he was not formally confirmed by the School Governing Body of Pula Madibogo Primary School.
[15] The inclusion of the fifth panel member into the shortlisting process flouted the ELRC’s Collective Agreement 1 of 2008. To make things even worse for the First Respondent, the other four panel members of the First Respondent’s Shortlisting Committee were not initially trained (or inducted) prior to their performance of shortlisting function. Prior training ( or induction) of any of the First Respondent’s Shortlisting as well as Interviewing Committee is a prerequisite in terms of the above cited Collective Agreement. The said procedural irregularity later led to him lodging a grievance against the First Respondent through the First Respondent’s District Director, Mr K.D. Mothemane on 08 December 2017. On 05 February 2018 Mr Mothemane responded to the grievance.
[16] The result of the grievance was that both the shortlisting as well as the interviewing processes of the Post were nullified until pending the finalisation of the grievance. Immediately following the said communicated outcome which was a subject of nullity, Mr Mothemane extended the same message to him and six other co-grievants. The First Respondent’s SGB later reconstituted new Shortlisting as well as Interviewing Committees in an effort to remedy the initial procedural irregularity. During the reconstitution of both processes, Mr Lawrence Chipa as well as the First Respondent’s Circuit Manager, one certain Mr Magagane assisted the SGB in ensuring that Collective Agreement 1 of 2008 is complied with in so far as the constitution of both the shortlisting and interviewing committees concerning the vacant Post.
[17] Mr Mothemane later convened the SGB of Pula Madibogo Primary School for a meeting. The meeting was held at Ladanna Office, Polokwane. He was later caught by surprise when the schools reopened for the second school term in April 2018 that the First Respondent went ahead with both the shortlisting as well as the interviewing processes which culminated into the appointment of the Second Respondent in this matter. The appointment of the Second Respondent to the Principal Educator’s Post of Pula Madibogo Primary School is against the decision which was initially taken by Mr Mothemane on behalf of the First Respondent.
[18] That being the case, the appointment of the Second Respondent is a product of nullity which has been borne out of an incorrect as well as a highly irregularised recruitment process. Having realised that the appointment of the Second Respondent is a product of an incorrect as well as a highly irregularised recruitment process, he was left with no other option than to declare an unfair labour practice against both the First and the Second Respondents before the ELRC. By appointing the Second Respondent to the post of a Principal Educator of Pula Madibogo Primary School, the First Respondent contravened both Clause 5.1 read together with Clause 5.3 (a) of the ELRC’s Collective Agreement 1 of 2008.
[19] During cross examination, he testified that the First Respondent treated him in an unfair manner in filling the Principal Educator’s Post at Pula Madibogo Primary School by non-adherence to Clause 5.1 of the above cited Collective Agreement. A version was then put to him by Mr Masindi that he ought to have referred his dispute as the one relating to the application or the interpretation of Collective Agreement 1 of 2008. He vehemently refuted the version put to him by Mr Masindi. Furthermore, that Clause 5.1 of the cited Collective Agreement mandates any Selection Committee in a recruitment process to first undergo a training (induction) process before commencing with a shortlisting of any vacant Post.
[20] The only reason for the First Respondent for having excluded him in shortlisting his application to the Principal Educator’s Post at Pula Madibogo Primary School is that both the Shortlisting as well as the Interviewing Committees of the First Respondent were irregularly constituted in contravention of Clause 5.1 of the above cited Collective Agreement. Two of the First Respondent’s panel members had no competency to participate in both the shortlisting as well as the job interview processes of the then vacant Post.
The second witness of the Applicant, Mr Lawrence Chipa testified under oath as follows:
[21] He is employed by the First Respondent as one of its Assistant Director responsible for employment relations. He is based at Polokwane District. His official duties involves, key among others, handling both allegations of misconduct as well as grievance matters. He has been employed in the said position since the year 2015 until to date. He has personal knowledge regarding the process of the filling of the Principal Educator’s Post at Pula Madibogo Primary School. He conducted an investigation into the filling of the post upon receipt of a grievance which was lodged by the Applicant together with his six co-grievants.
[22] The grievance was formally investigated flowing from which a Report together with two recommendatory findings were made and forwarded to Mr K.D Mothemane for proper decision. The first recommendatory finding was to the effect that the process leading to the filling of the Principal Educator’s Post at Pula Madibogo Primary School be reconstituted due to the inclusion of one panel member into the initial Shortlisting Committee who appeared for the first time during the shortlisting process of the post without such panel member having been subjected to a training (or inducted) before discharging such shortlisting function.
[23] The second recommendatory finding was to the effect that the initial Shortlisting Committee be subjected to a training before commencing with the shortlisting recruitment process as required by Collective Agreement 1 of 2008. Both recommendatory findings were accordingly approved by Mr K.D Mothemane. Post the approval of the recommendatory findings, he communicated the outcome of the grievance to the Applicant together with the Applicant’s six co-grievants. The outcome of the grievance was communicated by means of a written communique and same was received by the intended recipients (being the Applicant and his six co-grievants) where after they acknowledged receipt of the outcome of the grievance. The matter was considered as having been finalised from the Employee Relations Directorate.
[24] The SGB of Pula Madibogo was also copied with the same outcome of the grievance. The grievance outcome was served against the SGB by means of a hand delivery. The SGB also warmly welcomed the outcome served against them. At no stage did he together with the First Respondent’s Circuit Manager Mr Magagane ever assisted the SGB in reconstituting both the initial Shortlisting as well as the Interviewing Committees because on the day he went to the school to deliver the outcome of the grievance to the SGB, the Applicant and his six co-grievants were not at the school. He agrees to the Applicant’s testimony to the effect that the First Respondent has an existing standard practice which directs whenever advertised Posts are to be filled, an Interview Committee must first be inducted before commencing with the job interview process.
[25] During cross examination, he testified that he does not have any personal recollection of the personal identity of the panel member who appeared for the first time during the initial shortlisting process. He was never at any stage nearer to the venue where the shortlisting process of the vacant Post took place. Mr Masindi put a version to him to the effect that he (Mr Chipa) heard from another source that the unidentified panel member only allegedly appeared for the first time during the shortlisting process of the Principal Educator’s Post of Pula Madibogo Primary School. Mr Chipa agreed with Mr Masindi’s version. Mr Chipa further agrees with Mr Masindi’s other version that the initial version which he conceded amounts to hearsay evidence.
[26] Having considered the ELRC’s Collective Agreement in its totality, he is unable to demonstrate any provision of the Collective Agreement which directs that any of the First Respondent’s Shortlisting Committee must first be subjected to a training before commencing with a job shortlisting process. Furthermore, he also conceded that the First Respondent does not have any existing standard practice which directs the First Respondent’s Shortlisting Committee as well as the Interviewing Committee to first be subjected to a training before performing their duties. The First Respondent acted in both procedural as well as substantive manner by proceeding with the shortlisting as well as the job interview processes which led to the appointment of the Second Respondent in this matter.
The third witness of the Applicant, Ms Mmakgasoe Evelyn Bopape testified under oath as follows:
[27] She has been appointed by the First Respondent as a CS1 Educator since 06 January 1992. During the year 2009, she received a horizontal transfer to Pula Madibogo Primary School. During the period March 2015 to March 2018, she served as a Secretary of the SGB (Pula Madibogo Primary School). She has a personal knowledge regarding the current dispute. Around the Financial Year 2016 to 2017, the former Principal Educator of Pula Madibogo Primary School (Ms Ragophala P.T.G) exited the First Respondent’s services by means of a premature retirement. Mr Morudu K.D was later appointed as an Acting Principal Educator of the school.
[28] During the period 2017, the First Respondent advertised one Principal Educator’s Post within the establishment of Pula Madibogo Primary School. The SGB later convened a meeting so as to constitute both Shortlisting as well as Interviewing Committees. The shortlisting meeting took place on 30 November 2017. The Shortlisting Committee members were as follows, Mr Mothapo M.E (Chairperson of the Shortlisting Committee, Ms Makokga M.G, Secretary of the Shortlisting Committee, Mr Mamabolo R.R representative of the First Respondent, Mr Ramohlola M.A, Panel member, Ms Bopape M.E, Panel member, Mr Manabile M.F, Panel member and Mr Gafane L.P (SADTU Observer).
[29] Similarly, the meeting also agreed on the following constitution of the Interviewing Committee immediately following the Committee in Paragraph 28 above. The Interviewing Committee was constituted of the same panel members as reflected in Paragraph 28 above. Documentary evidence in respect of a copy of the minutes as well as the constitution of both Committees was referred from Page 53 to Page 79 of “Bundle B” respectively. The Shortlisting Committee shortlisted the Second Respondent, Ms Mokwele M.E, Mr Morudu K.D, Mr Mamabolo M.E and Ms Maleka M.L. Both the shortlisted candidates occupied the positions of Heads of Departments and Deputy Principal Educators’ posts.
[30] After the completion of both the shortlisting as well as the interviewing processes were concluded, Mr Chipa visited Pula Madibogo Primary School on 30 January 2018. Mr Chipa hinted to them that the purpose of his visit at the school was informed by the grievance which was lodged by the Applicant and his six co-grievants. Mr Chipa asked her as to whether she received any training prior to undertaking both her shortlisting as well as job interview functions. She answered Mr Chipa in the negative. On 11 February 2018 she received a telephone call from Mr Ramohlola M.A. Mr Ramohlola requested her to write letters to all the SGB members and invite the SGB members for a meeting. She obliged with Mr Ramohlola’s telephonic request. The meeting took place on 12 February 2018.
[31] The purpose of the meeting was to enable Mr Chipa to update the SGB members regarding his findings pertaining to the grievance which was lodged by the Applicant together with his six co-grievants. Mr Chipa later notified the SGB members by means of a written notice on the day of the meeting that the Employees Relations Directorate has upon receipt of the grievance decided to declare both the shortlisting and interview processes of the Principal Educator’s Post to be null and void.
[32] This was on the basis that the First Respondent’s panel members were not initially inducted prior to their performance of their duties during the two recruitment processes (namely, shortlisting as well as interviewing processes). Both processes are a prerequisite of a regular recruitment process in terms of the letter and the spirit of the ELRC’s Collective Agreement 1 of 2008. Mr Chipa later requested the SGB members to reconstitute both the Shortlisting as well as the Interviewing Committees so as to comply with the prerequisite condition of the Collective Agreement. Mr Chipa also gave the SGB members a Management Plan in terms of which both two recruitment processes were to be undertaken so as to remedy the noncompliance regarding having to subject both two Committees to a training prior to their performance of their recruitment duties.
[33] In terms of the outlined Management Plan, the training for the two recruitment Committees was scheduled to take place on 19 February 2018, 20 February 2018 and concluded on 28 February 2018. Soon after the Management Plan was communicated to the SGB members, training of the two recruitment Committees took place on 19 February 2018. While the training was in session, she was called by the Head of Department of Pula Madibogo Primary School, Ms Machaba M.V. Ms Machaba told her that she (Ms Bopape) had a visitor in the Office. Upon making interaction with the said visitor, the visitor introduced himself as a representative from the Trade Union PEU. The said representative immediately issued her with a letter. She immediately read the issued letter and found that the letter directed the SGB to immediately stop from continuing with the two recruitment processes.
[34] She referred to a copy of the said letter on “Page 31 to Page 33 of Bundle B”. The SGB obliged with the request which was communicated in a letter referred in Paragraph 33 above. On 05 March 2018 she received a telephone request from Mr Ramohlola to convene an urgent SGB meeting which was scheduled on 07 March 2018. Once again she complied with Mr Ramohlola’s telephonic request. The meeting was addressed by the Circuit Manager of Mankweng Mr Mothemane. During the meeting Mr Mothemane indicated that he was going to give the SGB members feedback regarding a grievance lodged by the Applicant and his six co-grievants in so far as the filling of the Principal Educator’s Post (Pula Madibogo) was concerned.
[35] Mr Mothemane hinted that he received an Investigation Report from Mr Chipa regarding the recommendatory action to the grievance lodged. The recommendations of the said Report was to the effect that both the initial two recruitment processes were highly irregularised on account of the two Committees not having been initially trained prior to their undertaking of their recruitment functions, and as such the irregularity had to be remedied by subjecting both two Committees to a training as required by the cited Collective Agreement.
[36] The shortlisting as well as the appointment of the Second Respondent is procedurally flawed due to the failure on the part of the First Respondent not to subject both its two recruitment Committees to a training. The Applicant prayed for the setting aside of the appointment of the Second Respondent and a new Shortlisting as well as an Interviewing Committee to the exclusion of the initial panel members be accordingly reconstituted. The Applicant closed his case
The Respondent’s case.
The only witness of the First Respondent, Mr Mocheko Edward Mothapo testified under oath as follows:
[37] He is employed by the First Respondent as one of its Principal Educator at Sione Primary School. He has been employed as such for a period of more than fifteen years. He presided over both the Shortlisting as well as the Interviewing processes of the then vacant Principal Educator’s post at Pula Madibogo Primary School. He got invited to the two recruitment processes by means of a telephone call from one member of the SGB of Pula Madibogo Primary School.
[38] He is unable to remember with precision the specific identity of the SGB’s member who invited him to the two recruitment processes. At no stage was he ever brought into the two recruitment processes by Mr Ramohlola. He only came to know Mr Ramohlola on the day of the job interview of the Principal Educator’s post of Pula Madibogo Primary School. He disputed the Applicant’s testimony to the effect that all the panel members of the First Respondent’s Shortlisting as well as the Interviewing Committees were not initially inducted (or trained) prior to their participation into the two recruitment processes as required by the ELRC’s Collective Agreement 1 of 2008.
[39] The Circuit Manager of the First Respondent (one certain Mr Magagane) invited all the designated officials from the specific schools which at the time had vacant promotional Principal Educator’s post. Such invitation was extended to the relevant designated officials by means of a telephone call. Immediately following such successful invitation, all the designated employees received an induction prior to their commencement of both the shortlisting as well as the interviewing processes of the then vacant Principal Educator’s post of Pula Madibogo Primary School.
[40] The ELRC’s Collective Agreement 1 of 2008 does not make any specific provision that any of the First Respondent’s shortlisting as well as the interviewing panel members must first undergo an induction (or training process) before they commence with such two recruitment processes leading up to the filling of any vacant Post. The First Respondent’s Shortlisting Committee had among other shortlisting criteria, unanimously agreed on prioritising all job applicants who at the time of the shortlisting process for the then vacant post of Principal Educator at Pula Madibogo Primary School, had a postgraduate degree within the teaching field. The Applicant did not have such postgraduate degree as at the time of the shortlisting process of the then vacant post.
[41] As at the time of the shortlisting process, the Applicant had acquired a Bacallareus Technology (B.Tech) degree as his highest academic qualification. Such qualification is an equivalent of an undergraduate degree in terms of the qualification ranking by the South African Qualifications Authority (SAQA). All the job applicants whose application forms were shortlisted for the Principal Educator’s post of Pula Madibogo Primary School had Bachelor of Education (Honours) as their highest academic qualifications. He referred to the list of such job applicants from “Page 7 to Page 50 of Bundle B”.
[42] The First Respondent did not commit any alleged unfair labour practice in relation to the shortlisting of the Second Respondent together with other job applicants to the exclusion of the Applicant and eventually appointing the Second Respondent in this matter. That being the case, it follows suit that the Applicant’s unfair labour practice claim in relation to promotion stands to be dismissed as it has not been factually proven and established. The Respondent closed its case.
ANALYSIS OF EVIDENCE, ARGUMENTS AND FINDINGS
[43] The point of departure in any alleged unfair labour practice dispute is that the Applicant has a duty to establish the existence of any such alleged unfair labour practice which has been allegedly committed by the Respondent (being the First Respondent) in this matter. Once such onus of proof is factually established, the onus will then shift to the employer, (being the First Respondent in this matter) to factually prove that the conduct in question was exercised in a fair manner. The Applicant’s evidence in chief together with those of his two other witnesses was to the effect that the First Respondent committed an unfair labour practice against the Applicant by not adhering to Paragraph 5.1 of the ELRC’s Collective Agreement 1 of 2008.
[44] The Applicant’s evidence, assessed in its material totality, was to the effect that Paragraph 5.1 of the aforecited Collective Agreement makes it obligatory for the First Respondent to subject any of its Shortlisting as well as the Interviewing Committees to an induction prior to both Committees’ commencement to their recruitment processes. On the corresponding side, evidence tendered by the First Respondent’s sole witness, Mr Mothapo was to the effect that the Collective Agreement does not make such provision. I have accordingly considered the ELRC’s Collective Agreement 1 of 2008 in its totality, but most importantly Paragraph 5.1 as strongly argued by the Applicant in his assertion as the basis for his unfair labour practice claim, being the subject matter of the current dispute in terms of section 186 (2) (a) of the Labour Relations Act.
[45] Paragraph 5 of the ELRC’s Collective Agreement deals with the establishment of an Interview Committee. Such a duty is relegated to the First Respondent in this matter. Furthermore, Paragraph 5.1 of the same Collective Agreement which has been the subject of both argument as well as counter argument in this matter makes the following provisions:
“The School Governing Body shall establish an Interview Committee at the educational institution where there are advertised vacancies. The Interview Committee may comprise of members from the School Governing Body. Additional members of the Interview Committee may be co-opted by the School Governing Body. Interview Committee members should have the necessary competencies to interview candidates for the advertised post(s)”.
[46] Having considered the totality of the ELRC’s Collective Agreement, I did not find any such express obligation arising from the Collective Agreement as strongly argued by the Applicant in this matter. The ELRC’s Collective Agreement does not makes provision to the effect that any of the First Respondent’s Shortlisting as well as the Interviewing Committees must first undergo a training process before they can commence with the vacant job interview process. Paragraph 5.1 of the Collective Agreement only emphasises that the Interview Committee members should have the necessary competencies to interview candidates for the advertised post(s). The Applicant’s evidence failed to demonstrate that the First Respondent’s Interview Committee did at the time of conducting the job interview process towards the Second Respondent together with other job applicants, did not have the necessary competency to do so.
[47] Accordingly, the Applicant’s alleged unfair labour practice claim is regrettably and factually unsustainable. Turning to the dispute at hand, the provisions of section 186 (2) (a) of the Labour Relations Act 66 of 1995 (as amended), make it abundantly clear that the alleged “unfair conduct” against the employer (being the Respondent in this matter), must either relate to promotion, demotion, probation, training or the provision of benefits. In the present dispute, the Applicant’s evidence has always been that the First Respondent committed an unfair labour practice in relation to promotion by not subjecting both the First Respondent’s Shortlisting as well as its Interviewing Committees to prior training before both Committees could commence with their recruitment functions. Such alleged mandatory requirement as strongly argued by the Applicant is non-existent in the entire Collective Agreement.
[48] Given the clear statutory definition of the term “unfair labour practice” as per section 186 (2) (a) of the Labour Relations Act, it is obvious that the Applicant in this matter had a statutory duty in terms of section 186 (2) (a) of the LRA to prove that the alleged “unfair conduct” on the part of the First Respondent does indeed relates to an unfair act or omission which is either based on the substantive and or the procedural unfairness. Substantive unfairness would relate to unfair reason(s) on the part of the First Respondent’s conduct for not promoting the Applicant, for instance, promoting the person (the Second Respondent in this specific instance) who did not comply with the specific requirements of the advertised Post.
[49] Neither did the Applicant’s evidence demonstrated that the First Respondent appointed the Second Respondent based on unsubstantial reason(s), without rational basis, or that the First Respondent appointed the Second Respondent to the Principal Educator’s Post based on factually flawed reason(s),capricious or bad faith, let alone based on negligent conduct. Procedural unfairness in any alleged unfair labour practice in relation to promotion entails an unfair process which has been applied by the employer (being the First Respondent in this matter) in dealing with the promotion, example, applying unacceptable or unfair comparisons. The Applicant being the party who alleged that he is the victim of an alleged unfair labour practice had a statutory duty to prove such a claim on the balance of probabilities (see the authority expressed in Ethekwini Municipality v SA Local Government Bargaining Council & others [2009] JOL 23625 (LC).
[50] Once the Applicant would have factually succeeded in discharging such statutory regulated onus, the Applicant was further required to prove that the alleged unfair act or omission on the part of the First Respondent in excluding him from a job shortlisting process, not only amounted to the existence of the labour practice, but also that such failure to shortlist his job application was unfair (see Provincial Administration Western Cape (Department of Health & Social Services) v Bikwani2002) 23 ILJ 761 (LC) paragraph 32. Stated differently, the Applicant had a duty to allege and prove that the decision of the First Respondent not to shortlist him and eventually appoint him to the Principal Educator’s Post at Pula Madibogo Primary School was unfair.
[51] Furthermore, the Applicant being a complainant that the Second Respondent has been unfairly promoted also had a duty to prove that he had the necessary skills, he met all the academic requirements which were set for the Principal Educator’s Post. Similarly, the Applicant also had a duty to prove that the Second Respondent did not possess the same level of skills such as his’ (SAPS v SSSBC [2010] 8 BLLR 892 (LC). Not only did the Applicant also failed to factually demonstrate that he was better qualified and suited for the post than the Second Respondent, but also that the he (the Applicant) was the best of all the candidates who applied and got shortlisted for the Principal Educator’s Post at Pula Madibogo Primary School.
[52] The Applicant did not establish any alleged causal connection between any irregularity or unfairness on the part of the First Respondent in shortlisting and eventually appointing the Second Respondent to the Principal Educator’s Post. The Applicant had a duty to show that had it not been for the First Respondent’s factually proven irregularity or the First Respondent’s factually proven unfair conduct towards his candidature, he would have been appointed to the Principal Educator’s Post at Pula Madibogo Primary School. As an arbitrator, my statutory duty was to determine whether or not the First Respondent’s decision in appointing the Second Respondent was arrived at in terms of both a fair procedure as well as in terms of substantive reasons. This test was eloquently applied in the authority of Noonan v Safety and Security Sectoral Bargaining Council and Others [2012] 9 BLLR 876 (LAC).
[53] I have accordingly applied the same legal test in determining the current dispute. The Applicant’s evidence, assessed in its material totality, was unable to prove that the First Respondent’s decision in appointing the Second Respondent to the Principal Educator’s Post was so grossly unreasonable to an extent that an arbitrator can reasonably infer malice, bad faith or improper motive on his candidature. In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others (2013) 34 ILJ 1156 (LC), the court in reference to the legal principle expressed in Arries v CCMA & others (2006) 27 ILJ 2324 (LC) the court held that when an arbitrator make an assessment as to whether the failure of any employer to promote any candidate constitutes an unfair labour practice, the test is one of fairness, taking into account inter alia, the following unlisted factors, to name but a few, namely:
(a) Whether the failure or refusal to promote any candidate was caused by unacceptable, irrelevant or invidious consideration on the part of the employer (being the First Respondent in this matter).
(b) Whether the employer’s decision was arbitrary, capricious or unfair.
(c) Whether the employer’s decision not to promote any aggrieved candidate was motivated by bad faith.
(d) Whether the employer’s decision not to promote any aggrieved candidate was taken in a biased manner.
[54] Having assessed the Applicant’s evidence in its totality, I find that the Applicant’s evidence does not reflect any of the above factors expressed in the Cape Town City judgment. I accordingly find the evidence of the Applicant to be factually weak, incredible, irrelevant, uncorroborated and totally unpersuasive as it relates to the arbitration of the dispute before me. The evidence of the Applicant was not helpful in establishing the existence of the alleged unfair labour practice claim. I remain unconvinced that the First Respondent committed any such alleged unfair labour practice in shortlisting the Second Respondent together with other job applicants and eventually appointing the Second Respondent to the exclusion of the Applicant to the Principal Educator’s Post at the time.
[55] The inevitable conclusion I arrive at based on the totality of the evidence presented before me is that the Respondent has not committed any alleged unfair labour practice against the Applicant during the filling of the Principal Educator’s Post of Pula Madibogo Primary School at the time. On the contrary, I find that the evidence of the First Respondent, although being the evidence of a single witness, to have been presented in a credible, relevant as well as in a corroborated manner which does not have any unfair ingredients.
[56] Based on the facts before me I find that the First Respondent has not committed any alleged unfair labour practice in relation to promotion against the Applicant by appointing the Second Respondent to the Principal Educator’s Post. The onus was on the Applicant to present credible evidence in proving that the First Respondent committed such alleged “unfair labour practice” against him as envisaged by section 186 (2) (a) of the LRA. The Applicant has failed to do so. On the preponderance of probabilities, I cannot reach any conclusion other than that the one that concludes that the Applicant’s exclusion to both the First Respondent’s shortlisting as well as the interview processes of the Second Respondent and other job applicants was exercised in both procedural as well as substantive fair manner. On this basis, the Applicant has factually failed to make out a case of unfair labour practice with specific reference to promotion as contemplated under section 186 (2) (a) of the LRA.
AWARD
[57] The Applicant failed to make out a proper case of unfair labour practice (in relation to the promotion) against the First Respondent in this matter.
[58] The Applicants’ alleged unfair labour practice claim against the First Respondent is hereby dismissed.
NTSEPENG MOOKAMEDI
(ELRC PANELLIST).
Province: Limpopo
Applicant: SADTU obo Matome Robert Makgobatlou
Respondent: 1st Respondent Department of Education Limpopo, 2nd Respondent Ms Mosima Annah Machaka
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Corner Hospital and Hans Van Rensburg Street, Polokwane, Limpopo Province
Award Date: 6 May 2019
Arbitrator: Ntsepeng Benault Mookamedi
Panellist/s: Ntsepeng Benault Mookamedi
Case No.: PSES76-18/19
Date of Award: 6-May-2019
SADTU obo Matome Robert Makgobatlou
(Union / Applicant)
And
Department of Education (Limpopo Provincial Administration)
(First Respondent)
Ms Mosima Annah Machaka
(Second Respondent)
Applicant’s representative : Mr Moraka Abel Makgaa
91 Biccard Street
Polokwane
0700
Telephone number : (015) 2915418
Fax number : (015) 2911667
Email address : thobjam@webmail.co.za
IN THE EDUCATION LABOUR RELATIONS COUNCIL (ELRC).
DETAILS OF THE HEARING AND REPRESENTATION.
[1] This is an Arbitration Award in the arbitration hearing between the Applicant Mr Matome Robert Makgobatlou (the Applicant), the Department of Education, Limpopo Provincial Administration, the First Respondent and Ms Mosima Annah Machaka, the Second Respondent). The arbitration hearing took place on 25 June 2018, 22 October 2018, 27 November 2018 and was finalised on 26 April 2019. The hearing was conducted within the business premises of the First Respondent at Corner Hospital and Hans Van Rensburg Street, Polokwane, Limpopo Province.
[2] The Applicant attended the arbitration hearing during the dates reflected above and was represented by Mr Moraka Abel Makgaa, a Union Official from the South African Democratic Teachers Union, commonly referred to as “SADTU”.. The First Respondent also attended the hearing and was represented by Mr Kenneth Mawela Masindi, a Deputy Director attached its Legal Services Directorate. Similarly, the Second Respondent also attended the arbitration hearings on all the above mentioned dates.
[3] Ms Boitumelo Sharon Lekgetha appeared as an Observer from SADTU while Mr Sylvester Setati appeared as an Observer from the Professional Educators Union, commonly referred to as “PEU”. The arbitration hearing was both mechanically as well as manually recorded. Prior to the commencement of the arbitration hearing, the Applicant submitted a single bundle of documents as evidence and same was accepted as such and marked as “Bundle A”. The Applicant’s bundle ranged from “Page 01 until Page 32”.
[4] On the corresponding side, the First Respondent submitted a single bundle of documents as evidence and same was accepted as such and marked as “Bundle B”. The First Respondent’s bundle of documents ranged from “Page 01 to Page 97”. No bundle of documents was submitted by the Second Respondent in this matter. Furthermore, the Second Respondent indicated that she stands by the evidence which has been tendered by the First Respondent in dealing with the current dispute before the ELRC. The arbitration hearing is therefore decided on documentary as well as on oral evidence. At the conclusion of the arbitration hearing, both parties addressed me in closing arguments. I have accordingly considered the totality of both parties’ evidence which are more relevant to the current dispute in rendering this Arbitration Award.
NATURE OF THE DISPUTE.
[5] The dispute concerns an alleged unfair labour practice in relation to promotion in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 read together with Clause 9.1.2.1 of the ELRC’s Constitution (Part C, Dispute Resolution Procedures). The dispute is primarily rooted in both section 186 (2) (a) of the LRA as well as in the interpretation and or the application of the ELRC’s Collective Agreement 1 of 2008 (hereinafter referred to as the Guideline For Sifting, Shortlisting and Interview Procedures”. The Collective Agreement has been duly concluded by the respective representatives of both parties involved in this matter and within the auspices of the ELRC on 30 September 2008.
ISSUE TO BE DECIDED
[6] I am required to decide whether or not the First Respondent committed any alleged labour practice in relation to promotion by not shortlisting the Applicant to a vacant Principal Educator’s Post and eventually having shortlisted other job Applicants together with the Second Respondent to the said vacant.
[7] Should I find that the First Respondent’s action against the Applicant constitutes an unfair labour practice as alleged, I shall determine an appropriate relief.
BACKGROUND TO THE DISPUTE
[8] The First Respondent advertised a number of Principal Educator’s Posts in a Circular dated 22 August 2017. The said vacant Posts were within the establishment of various schools and Districts of the First Respondent, one of them being Pula Madibogo Primary School. Pula Madibogo Primary School is geographically located at Mankweng Circuit, Lebowakgomo District, Polokwane, Limpopo Province.
[9] The Applicant together with some of his fellow job applicants submitted applications for contesting the vacant Post. Immediately following the submission due date of the vacant Post, the First Respondent constituted both the Shortlisting as well as Job Interviewing Committees. The Shortlisting Committee shortlisted the Second Respondent and other job applicants to the exclusion of the Applicant in this matter. Following the conclusion of the shortlisting process, the job interview process ensued. The job interview process resulted in the appointment of the Second Respondent to the said Post.
[10] The Applicant considers the appointment of the Second Respondent to be clouded with procedural irregularities because both the Shortlisting as well as the Interviewing Committees were not initially taken through an induction training process as required by the ELRC’s Collective Agreement 1 of 2008. The Applicant later lodged a grievance on 08 December 2018 and same was received by the First Respondent’s designated employee on the same day. The grievance was dealt in terms of the relevant Grievance Rules of the First Respondent.
[11] On 05 February 2018, one of the First Respondent’s District Director, Mr K. D Mothemane formally notified the Applicant that both the shortlisting and interviewing processes of the then vacant Principal Educator’s Post at Pula Madibogo Primary School were nullified. The reason for such nullification was occasioned by the grievance which was lodged by the Applicant together with the Applicant’s six co-grievants.
[12] On 13 February 2018, the School Governing Body (SGB) of Pula Madibogo Primary School formally communicated the same nullification message to the three job applicants and such was to the exclusion of the Applicant in this matter. Feeling dissatisfied about the said state of affairs, the Applicant declared a dispute before the ELRC on 23 April 2018. The dispute was enrolled a conciliation / pre-arbitration hearing process in terms of the Council’s Constitution on 14 May 2018. The Applicant made a formal oral application to have the Second Respondent to be enjoined in the arbitration proceedings.
[13] A Joinder Ruling was rendered by the conciliating Panellist on 16 May 2018. The dispute remained unresolved at the conciliation level where after the Applicant referred the matter to an arbitration level on 23 May 2018.The ELRC initially scheduled the matter down for an arbitration hearing process on 25 June 2018 in terms of Clause 17.2.3 of the ELRC’s Constitution.
SURVEY OF EVIDENCE AND ARGUMENTS.
The Applicants’ case.
The Applicant’s first witness, Mr Matome Robert Makgobatlou testified under oath as follows:
[14] He is employed by the First Respondent as one of the Deputy Principal Educator at Pula Madibogo Primary School. He has been occupying the said position since the period 01 March 2017 until to date. The First Respondent committed an unfair labour practice against him by allowing a fifth panel member to participate in the shortlisting process of such vacant and advertised Post. Such fifth panel member who participated in the shortlisting process was not authorised to do so as he was not formally confirmed by the School Governing Body of Pula Madibogo Primary School.
[15] The inclusion of the fifth panel member into the shortlisting process flouted the ELRC’s Collective Agreement 1 of 2008. To make things even worse for the First Respondent, the other four panel members of the First Respondent’s Shortlisting Committee were not initially trained (or inducted) prior to their performance of shortlisting function. Prior training ( or induction) of any of the First Respondent’s Shortlisting as well as Interviewing Committee is a prerequisite in terms of the above cited Collective Agreement. The said procedural irregularity later led to him lodging a grievance against the First Respondent through the First Respondent’s District Director, Mr K.D. Mothemane on 08 December 2017. On 05 February 2018 Mr Mothemane responded to the grievance.
[16] The result of the grievance was that both the shortlisting as well as the interviewing processes of the Post were nullified until pending the finalisation of the grievance. Immediately following the said communicated outcome which was a subject of nullity, Mr Mothemane extended the same message to him and six other co-grievants. The First Respondent’s SGB later reconstituted new Shortlisting as well as Interviewing Committees in an effort to remedy the initial procedural irregularity. During the reconstitution of both processes, Mr Lawrence Chipa as well as the First Respondent’s Circuit Manager, one certain Mr Magagane assisted the SGB in ensuring that Collective Agreement 1 of 2008 is complied with in so far as the constitution of both the shortlisting and interviewing committees concerning the vacant Post.
[17] Mr Mothemane later convened the SGB of Pula Madibogo Primary School for a meeting. The meeting was held at Ladanna Office, Polokwane. He was later caught by surprise when the schools reopened for the second school term in April 2018 that the First Respondent went ahead with both the shortlisting as well as the interviewing processes which culminated into the appointment of the Second Respondent in this matter. The appointment of the Second Respondent to the Principal Educator’s Post of Pula Madibogo Primary School is against the decision which was initially taken by Mr Mothemane on behalf of the First Respondent.
[18] That being the case, the appointment of the Second Respondent is a product of nullity which has been borne out of an incorrect as well as a highly irregularised recruitment process. Having realised that the appointment of the Second Respondent is a product of an incorrect as well as a highly irregularised recruitment process, he was left with no other option than to declare an unfair labour practice against both the First and the Second Respondents before the ELRC. By appointing the Second Respondent to the post of a Principal Educator of Pula Madibogo Primary School, the First Respondent contravened both Clause 5.1 read together with Clause 5.3 (a) of the ELRC’s Collective Agreement 1 of 2008.
[19] During cross examination, he testified that the First Respondent treated him in an unfair manner in filling the Principal Educator’s Post at Pula Madibogo Primary School by non-adherence to Clause 5.1 of the above cited Collective Agreement. A version was then put to him by Mr Masindi that he ought to have referred his dispute as the one relating to the application or the interpretation of Collective Agreement 1 of 2008. He vehemently refuted the version put to him by Mr Masindi. Furthermore, that Clause 5.1 of the cited Collective Agreement mandates any Selection Committee in a recruitment process to first undergo a training (induction) process before commencing with a shortlisting of any vacant Post.
[20] The only reason for the First Respondent for having excluded him in shortlisting his application to the Principal Educator’s Post at Pula Madibogo Primary School is that both the Shortlisting as well as the Interviewing Committees of the First Respondent were irregularly constituted in contravention of Clause 5.1 of the above cited Collective Agreement. Two of the First Respondent’s panel members had no competency to participate in both the shortlisting as well as the job interview processes of the then vacant Post.
The second witness of the Applicant, Mr Lawrence Chipa testified under oath as follows:
[21] He is employed by the First Respondent as one of its Assistant Director responsible for employment relations. He is based at Polokwane District. His official duties involves, key among others, handling both allegations of misconduct as well as grievance matters. He has been employed in the said position since the year 2015 until to date. He has personal knowledge regarding the process of the filling of the Principal Educator’s Post at Pula Madibogo Primary School. He conducted an investigation into the filling of the post upon receipt of a grievance which was lodged by the Applicant together with his six co-grievants.
[22] The grievance was formally investigated flowing from which a Report together with two recommendatory findings were made and forwarded to Mr K.D Mothemane for proper decision. The first recommendatory finding was to the effect that the process leading to the filling of the Principal Educator’s Post at Pula Madibogo Primary School be reconstituted due to the inclusion of one panel member into the initial Shortlisting Committee who appeared for the first time during the shortlisting process of the post without such panel member having been subjected to a training (or inducted) before discharging such shortlisting function.
[23] The second recommendatory finding was to the effect that the initial Shortlisting Committee be subjected to a training before commencing with the shortlisting recruitment process as required by Collective Agreement 1 of 2008. Both recommendatory findings were accordingly approved by Mr K.D Mothemane. Post the approval of the recommendatory findings, he communicated the outcome of the grievance to the Applicant together with the Applicant’s six co-grievants. The outcome of the grievance was communicated by means of a written communique and same was received by the intended recipients (being the Applicant and his six co-grievants) where after they acknowledged receipt of the outcome of the grievance. The matter was considered as having been finalised from the Employee Relations Directorate.
[24] The SGB of Pula Madibogo was also copied with the same outcome of the grievance. The grievance outcome was served against the SGB by means of a hand delivery. The SGB also warmly welcomed the outcome served against them. At no stage did he together with the First Respondent’s Circuit Manager Mr Magagane ever assisted the SGB in reconstituting both the initial Shortlisting as well as the Interviewing Committees because on the day he went to the school to deliver the outcome of the grievance to the SGB, the Applicant and his six co-grievants were not at the school. He agrees to the Applicant’s testimony to the effect that the First Respondent has an existing standard practice which directs whenever advertised Posts are to be filled, an Interview Committee must first be inducted before commencing with the job interview process.
[25] During cross examination, he testified that he does not have any personal recollection of the personal identity of the panel member who appeared for the first time during the initial shortlisting process. He was never at any stage nearer to the venue where the shortlisting process of the vacant Post took place. Mr Masindi put a version to him to the effect that he (Mr Chipa) heard from another source that the unidentified panel member only allegedly appeared for the first time during the shortlisting process of the Principal Educator’s Post of Pula Madibogo Primary School. Mr Chipa agreed with Mr Masindi’s version. Mr Chipa further agrees with Mr Masindi’s other version that the initial version which he conceded amounts to hearsay evidence.
[26] Having considered the ELRC’s Collective Agreement in its totality, he is unable to demonstrate any provision of the Collective Agreement which directs that any of the First Respondent’s Shortlisting Committee must first be subjected to a training before commencing with a job shortlisting process. Furthermore, he also conceded that the First Respondent does not have any existing standard practice which directs the First Respondent’s Shortlisting Committee as well as the Interviewing Committee to first be subjected to a training before performing their duties. The First Respondent acted in both procedural as well as substantive manner by proceeding with the shortlisting as well as the job interview processes which led to the appointment of the Second Respondent in this matter.
The third witness of the Applicant, Ms Mmakgasoe Evelyn Bopape testified under oath as follows:
[27] She has been appointed by the First Respondent as a CS1 Educator since 06 January 1992. During the year 2009, she received a horizontal transfer to Pula Madibogo Primary School. During the period March 2015 to March 2018, she served as a Secretary of the SGB (Pula Madibogo Primary School). She has a personal knowledge regarding the current dispute. Around the Financial Year 2016 to 2017, the former Principal Educator of Pula Madibogo Primary School (Ms Ragophala P.T.G) exited the First Respondent’s services by means of a premature retirement. Mr Morudu K.D was later appointed as an Acting Principal Educator of the school.
[28] During the period 2017, the First Respondent advertised one Principal Educator’s Post within the establishment of Pula Madibogo Primary School. The SGB later convened a meeting so as to constitute both Shortlisting as well as Interviewing Committees. The shortlisting meeting took place on 30 November 2017. The Shortlisting Committee members were as follows, Mr Mothapo M.E (Chairperson of the Shortlisting Committee, Ms Makokga M.G, Secretary of the Shortlisting Committee, Mr Mamabolo R.R representative of the First Respondent, Mr Ramohlola M.A, Panel member, Ms Bopape M.E, Panel member, Mr Manabile M.F, Panel member and Mr Gafane L.P (SADTU Observer).
[29] Similarly, the meeting also agreed on the following constitution of the Interviewing Committee immediately following the Committee in Paragraph 28 above. The Interviewing Committee was constituted of the same panel members as reflected in Paragraph 28 above. Documentary evidence in respect of a copy of the minutes as well as the constitution of both Committees was referred from Page 53 to Page 79 of “Bundle B” respectively. The Shortlisting Committee shortlisted the Second Respondent, Ms Mokwele M.E, Mr Morudu K.D, Mr Mamabolo M.E and Ms Maleka M.L. Both the shortlisted candidates occupied the positions of Heads of Departments and Deputy Principal Educators’ posts.
[30] After the completion of both the shortlisting as well as the interviewing processes were concluded, Mr Chipa visited Pula Madibogo Primary School on 30 January 2018. Mr Chipa hinted to them that the purpose of his visit at the school was informed by the grievance which was lodged by the Applicant and his six co-grievants. Mr Chipa asked her as to whether she received any training prior to undertaking both her shortlisting as well as job interview functions. She answered Mr Chipa in the negative. On 11 February 2018 she received a telephone call from Mr Ramohlola M.A. Mr Ramohlola requested her to write letters to all the SGB members and invite the SGB members for a meeting. She obliged with Mr Ramohlola’s telephonic request. The meeting took place on 12 February 2018.
[31] The purpose of the meeting was to enable Mr Chipa to update the SGB members regarding his findings pertaining to the grievance which was lodged by the Applicant together with his six co-grievants. Mr Chipa later notified the SGB members by means of a written notice on the day of the meeting that the Employees Relations Directorate has upon receipt of the grievance decided to declare both the shortlisting and interview processes of the Principal Educator’s Post to be null and void.
[32] This was on the basis that the First Respondent’s panel members were not initially inducted prior to their performance of their duties during the two recruitment processes (namely, shortlisting as well as interviewing processes). Both processes are a prerequisite of a regular recruitment process in terms of the letter and the spirit of the ELRC’s Collective Agreement 1 of 2008. Mr Chipa later requested the SGB members to reconstitute both the Shortlisting as well as the Interviewing Committees so as to comply with the prerequisite condition of the Collective Agreement. Mr Chipa also gave the SGB members a Management Plan in terms of which both two recruitment processes were to be undertaken so as to remedy the noncompliance regarding having to subject both two Committees to a training prior to their performance of their recruitment duties.
[33] In terms of the outlined Management Plan, the training for the two recruitment Committees was scheduled to take place on 19 February 2018, 20 February 2018 and concluded on 28 February 2018. Soon after the Management Plan was communicated to the SGB members, training of the two recruitment Committees took place on 19 February 2018. While the training was in session, she was called by the Head of Department of Pula Madibogo Primary School, Ms Machaba M.V. Ms Machaba told her that she (Ms Bopape) had a visitor in the Office. Upon making interaction with the said visitor, the visitor introduced himself as a representative from the Trade Union PEU. The said representative immediately issued her with a letter. She immediately read the issued letter and found that the letter directed the SGB to immediately stop from continuing with the two recruitment processes.
[34] She referred to a copy of the said letter on “Page 31 to Page 33 of Bundle B”. The SGB obliged with the request which was communicated in a letter referred in Paragraph 33 above. On 05 March 2018 she received a telephone request from Mr Ramohlola to convene an urgent SGB meeting which was scheduled on 07 March 2018. Once again she complied with Mr Ramohlola’s telephonic request. The meeting was addressed by the Circuit Manager of Mankweng Mr Mothemane. During the meeting Mr Mothemane indicated that he was going to give the SGB members feedback regarding a grievance lodged by the Applicant and his six co-grievants in so far as the filling of the Principal Educator’s Post (Pula Madibogo) was concerned.
[35] Mr Mothemane hinted that he received an Investigation Report from Mr Chipa regarding the recommendatory action to the grievance lodged. The recommendations of the said Report was to the effect that both the initial two recruitment processes were highly irregularised on account of the two Committees not having been initially trained prior to their undertaking of their recruitment functions, and as such the irregularity had to be remedied by subjecting both two Committees to a training as required by the cited Collective Agreement.
[36] The shortlisting as well as the appointment of the Second Respondent is procedurally flawed due to the failure on the part of the First Respondent not to subject both its two recruitment Committees to a training. The Applicant prayed for the setting aside of the appointment of the Second Respondent and a new Shortlisting as well as an Interviewing Committee to the exclusion of the initial panel members be accordingly reconstituted. The Applicant closed his case
The Respondent’s case.
The only witness of the First Respondent, Mr Mocheko Edward Mothapo testified under oath as follows:
[37] He is employed by the First Respondent as one of its Principal Educator at Sione Primary School. He has been employed as such for a period of more than fifteen years. He presided over both the Shortlisting as well as the Interviewing processes of the then vacant Principal Educator’s post at Pula Madibogo Primary School. He got invited to the two recruitment processes by means of a telephone call from one member of the SGB of Pula Madibogo Primary School.
[38] He is unable to remember with precision the specific identity of the SGB’s member who invited him to the two recruitment processes. At no stage was he ever brought into the two recruitment processes by Mr Ramohlola. He only came to know Mr Ramohlola on the day of the job interview of the Principal Educator’s post of Pula Madibogo Primary School. He disputed the Applicant’s testimony to the effect that all the panel members of the First Respondent’s Shortlisting as well as the Interviewing Committees were not initially inducted (or trained) prior to their participation into the two recruitment processes as required by the ELRC’s Collective Agreement 1 of 2008.
[39] The Circuit Manager of the First Respondent (one certain Mr Magagane) invited all the designated officials from the specific schools which at the time had vacant promotional Principal Educator’s post. Such invitation was extended to the relevant designated officials by means of a telephone call. Immediately following such successful invitation, all the designated employees received an induction prior to their commencement of both the shortlisting as well as the interviewing processes of the then vacant Principal Educator’s post of Pula Madibogo Primary School.
[40] The ELRC’s Collective Agreement 1 of 2008 does not make any specific provision that any of the First Respondent’s shortlisting as well as the interviewing panel members must first undergo an induction (or training process) before they commence with such two recruitment processes leading up to the filling of any vacant Post. The First Respondent’s Shortlisting Committee had among other shortlisting criteria, unanimously agreed on prioritising all job applicants who at the time of the shortlisting process for the then vacant post of Principal Educator at Pula Madibogo Primary School, had a postgraduate degree within the teaching field. The Applicant did not have such postgraduate degree as at the time of the shortlisting process of the then vacant post.
[41] As at the time of the shortlisting process, the Applicant had acquired a Bacallareus Technology (B.Tech) degree as his highest academic qualification. Such qualification is an equivalent of an undergraduate degree in terms of the qualification ranking by the South African Qualifications Authority (SAQA). All the job applicants whose application forms were shortlisted for the Principal Educator’s post of Pula Madibogo Primary School had Bachelor of Education (Honours) as their highest academic qualifications. He referred to the list of such job applicants from “Page 7 to Page 50 of Bundle B”.
[42] The First Respondent did not commit any alleged unfair labour practice in relation to the shortlisting of the Second Respondent together with other job applicants to the exclusion of the Applicant and eventually appointing the Second Respondent in this matter. That being the case, it follows suit that the Applicant’s unfair labour practice claim in relation to promotion stands to be dismissed as it has not been factually proven and established. The Respondent closed its case.
ANALYSIS OF EVIDENCE, ARGUMENTS AND FINDINGS
[43] The point of departure in any alleged unfair labour practice dispute is that the Applicant has a duty to establish the existence of any such alleged unfair labour practice which has been allegedly committed by the Respondent (being the First Respondent) in this matter. Once such onus of proof is factually established, the onus will then shift to the employer, (being the First Respondent in this matter) to factually prove that the conduct in question was exercised in a fair manner. The Applicant’s evidence in chief together with those of his two other witnesses was to the effect that the First Respondent committed an unfair labour practice against the Applicant by not adhering to Paragraph 5.1 of the ELRC’s Collective Agreement 1 of 2008.
[44] The Applicant’s evidence, assessed in its material totality, was to the effect that Paragraph 5.1 of the aforecited Collective Agreement makes it obligatory for the First Respondent to subject any of its Shortlisting as well as the Interviewing Committees to an induction prior to both Committees’ commencement to their recruitment processes. On the corresponding side, evidence tendered by the First Respondent’s sole witness, Mr Mothapo was to the effect that the Collective Agreement does not make such provision. I have accordingly considered the ELRC’s Collective Agreement 1 of 2008 in its totality, but most importantly Paragraph 5.1 as strongly argued by the Applicant in his assertion as the basis for his unfair labour practice claim, being the subject matter of the current dispute in terms of section 186 (2) (a) of the Labour Relations Act.
[45] Paragraph 5 of the ELRC’s Collective Agreement deals with the establishment of an Interview Committee. Such a duty is relegated to the First Respondent in this matter. Furthermore, Paragraph 5.1 of the same Collective Agreement which has been the subject of both argument as well as counter argument in this matter makes the following provisions:
“The School Governing Body shall establish an Interview Committee at the educational institution where there are advertised vacancies. The Interview Committee may comprise of members from the School Governing Body. Additional members of the Interview Committee may be co-opted by the School Governing Body. Interview Committee members should have the necessary competencies to interview candidates for the advertised post(s)”.
[46] Having considered the totality of the ELRC’s Collective Agreement, I did not find any such express obligation arising from the Collective Agreement as strongly argued by the Applicant in this matter. The ELRC’s Collective Agreement does not makes provision to the effect that any of the First Respondent’s Shortlisting as well as the Interviewing Committees must first undergo a training process before they can commence with the vacant job interview process. Paragraph 5.1 of the Collective Agreement only emphasises that the Interview Committee members should have the necessary competencies to interview candidates for the advertised post(s). The Applicant’s evidence failed to demonstrate that the First Respondent’s Interview Committee did at the time of conducting the job interview process towards the Second Respondent together with other job applicants, did not have the necessary competency to do so.
[47] Accordingly, the Applicant’s alleged unfair labour practice claim is regrettably and factually unsustainable. Turning to the dispute at hand, the provisions of section 186 (2) (a) of the Labour Relations Act 66 of 1995 (as amended), make it abundantly clear that the alleged “unfair conduct” against the employer (being the Respondent in this matter), must either relate to promotion, demotion, probation, training or the provision of benefits. In the present dispute, the Applicant’s evidence has always been that the First Respondent committed an unfair labour practice in relation to promotion by not subjecting both the First Respondent’s Shortlisting as well as its Interviewing Committees to prior training before both Committees could commence with their recruitment functions. Such alleged mandatory requirement as strongly argued by the Applicant is non-existent in the entire Collective Agreement.
[48] Given the clear statutory definition of the term “unfair labour practice” as per section 186 (2) (a) of the Labour Relations Act, it is obvious that the Applicant in this matter had a statutory duty in terms of section 186 (2) (a) of the LRA to prove that the alleged “unfair conduct” on the part of the First Respondent does indeed relates to an unfair act or omission which is either based on the substantive and or the procedural unfairness. Substantive unfairness would relate to unfair reason(s) on the part of the First Respondent’s conduct for not promoting the Applicant, for instance, promoting the person (the Second Respondent in this specific instance) who did not comply with the specific requirements of the advertised Post.
[49] Neither did the Applicant’s evidence demonstrated that the First Respondent appointed the Second Respondent based on unsubstantial reason(s), without rational basis, or that the First Respondent appointed the Second Respondent to the Principal Educator’s Post based on factually flawed reason(s),capricious or bad faith, let alone based on negligent conduct. Procedural unfairness in any alleged unfair labour practice in relation to promotion entails an unfair process which has been applied by the employer (being the First Respondent in this matter) in dealing with the promotion, example, applying unacceptable or unfair comparisons. The Applicant being the party who alleged that he is the victim of an alleged unfair labour practice had a statutory duty to prove such a claim on the balance of probabilities (see the authority expressed in Ethekwini Municipality v SA Local Government Bargaining Council & others [2009] JOL 23625 (LC).
[50] Once the Applicant would have factually succeeded in discharging such statutory regulated onus, the Applicant was further required to prove that the alleged unfair act or omission on the part of the First Respondent in excluding him from a job shortlisting process, not only amounted to the existence of the labour practice, but also that such failure to shortlist his job application was unfair (see Provincial Administration Western Cape (Department of Health & Social Services) v Bikwani2002) 23 ILJ 761 (LC) paragraph 32. Stated differently, the Applicant had a duty to allege and prove that the decision of the First Respondent not to shortlist him and eventually appoint him to the Principal Educator’s Post at Pula Madibogo Primary School was unfair.
[51] Furthermore, the Applicant being a complainant that the Second Respondent has been unfairly promoted also had a duty to prove that he had the necessary skills, he met all the academic requirements which were set for the Principal Educator’s Post. Similarly, the Applicant also had a duty to prove that the Second Respondent did not possess the same level of skills such as his’ (SAPS v SSSBC [2010] 8 BLLR 892 (LC). Not only did the Applicant also failed to factually demonstrate that he was better qualified and suited for the post than the Second Respondent, but also that the he (the Applicant) was the best of all the candidates who applied and got shortlisted for the Principal Educator’s Post at Pula Madibogo Primary School.
[52] The Applicant did not establish any alleged causal connection between any irregularity or unfairness on the part of the First Respondent in shortlisting and eventually appointing the Second Respondent to the Principal Educator’s Post. The Applicant had a duty to show that had it not been for the First Respondent’s factually proven irregularity or the First Respondent’s factually proven unfair conduct towards his candidature, he would have been appointed to the Principal Educator’s Post at Pula Madibogo Primary School. As an arbitrator, my statutory duty was to determine whether or not the First Respondent’s decision in appointing the Second Respondent was arrived at in terms of both a fair procedure as well as in terms of substantive reasons. This test was eloquently applied in the authority of Noonan v Safety and Security Sectoral Bargaining Council and Others [2012] 9 BLLR 876 (LAC).
[53] I have accordingly applied the same legal test in determining the current dispute. The Applicant’s evidence, assessed in its material totality, was unable to prove that the First Respondent’s decision in appointing the Second Respondent to the Principal Educator’s Post was so grossly unreasonable to an extent that an arbitrator can reasonably infer malice, bad faith or improper motive on his candidature. In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others (2013) 34 ILJ 1156 (LC), the court in reference to the legal principle expressed in Arries v CCMA & others (2006) 27 ILJ 2324 (LC) the court held that when an arbitrator make an assessment as to whether the failure of any employer to promote any candidate constitutes an unfair labour practice, the test is one of fairness, taking into account inter alia, the following unlisted factors, to name but a few, namely:
(a) Whether the failure or refusal to promote any candidate was caused by unacceptable, irrelevant or invidious consideration on the part of the employer (being the First Respondent in this matter).
(b) Whether the employer’s decision was arbitrary, capricious or unfair.
(c) Whether the employer’s decision not to promote any aggrieved candidate was motivated by bad faith.
(d) Whether the employer’s decision not to promote any aggrieved candidate was taken in a biased manner.
[54] Having assessed the Applicant’s evidence in its totality, I find that the Applicant’s evidence does not reflect any of the above factors expressed in the Cape Town City judgment. I accordingly find the evidence of the Applicant to be factually weak, incredible, irrelevant, uncorroborated and totally unpersuasive as it relates to the arbitration of the dispute before me. The evidence of the Applicant was not helpful in establishing the existence of the alleged unfair labour practice claim. I remain unconvinced that the First Respondent committed any such alleged unfair labour practice in shortlisting the Second Respondent together with other job applicants and eventually appointing the Second Respondent to the exclusion of the Applicant to the Principal Educator’s Post at the time.
[55] The inevitable conclusion I arrive at based on the totality of the evidence presented before me is that the Respondent has not committed any alleged unfair labour practice against the Applicant during the filling of the Principal Educator’s Post of Pula Madibogo Primary School at the time. On the contrary, I find that the evidence of the First Respondent, although being the evidence of a single witness, to have been presented in a credible, relevant as well as in a corroborated manner which does not have any unfair ingredients.
[56] Based on the facts before me I find that the First Respondent has not committed any alleged unfair labour practice in relation to promotion against the Applicant by appointing the Second Respondent to the Principal Educator’s Post. The onus was on the Applicant to present credible evidence in proving that the First Respondent committed such alleged “unfair labour practice” against him as envisaged by section 186 (2) (a) of the LRA. The Applicant has failed to do so. On the preponderance of probabilities, I cannot reach any conclusion other than that the one that concludes that the Applicant’s exclusion to both the First Respondent’s shortlisting as well as the interview processes of the Second Respondent and other job applicants was exercised in both procedural as well as substantive fair manner. On this basis, the Applicant has factually failed to make out a case of unfair labour practice with specific reference to promotion as contemplated under section 186 (2) (a) of the LRA.
AWARD
[57] The Applicant failed to make out a proper case of unfair labour practice (in relation to the promotion) against the First Respondent in this matter.
[58] The Applicants’ alleged unfair labour practice claim against the First Respondent is hereby dismissed.
NTSEPENG MOOKAMEDI
(ELRC PANELLIST).