Case Number: PSES462-18/19EC
Province: Eastern Cape
Applicant: SADTU obo Mpitshane T
Respondent: Department of Education Eastern Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Mthatha District Office in Mthatha
Award Date: 17 June 2019
Arbitrator: Thobela Ncetezo
Case Number: PSES462-18/19EC
Commissioner: Thobela Ncetezo
Date of Award: 17 June 2019
In the ARBITRATION between
SADTU obo Mpitshane T
Department of Education – Eastern Cape
Union/Applicant’s representative: Mr S Gashi
Telephone: 047 531 4217
Telefax: 047 531 2552
Respondent’s representative: Mr T Lipapang (for 1st respondent) Mr A Tyantsi (for 2nd respondent SADTU official)
Telephone: 073 964 5939
Telefax: 040 608 4313
Details of hearing and representation
1. The dispute was set down for arbitration on 14 November, 20 March and 23 May 2019 at the Mthatha District Office in Mthatha. Mr Siyabonga Gashi who is an official of SADTU appeared for the applicant, Thandi Mpitshane. Mr Tsiu Liphaphang who is employed as Labour Relations Officer, represented the first respondent, Department of Education – Eastern Cape. The second respondent, Mrs Noma Mququ, was represented by Mr Ayanda Tyantsi who is an official of SADTU.
2. The proceedings were conducted in English and interpreted into Xhosa by an interpreter, Mrs Lulama Mekhazru. The applicant and all witnesses presented their evidence under oath. The applicant and first respondent submitted a bundles of documents relating to the applications for the contested post.
Issue to be decided
3. I am required whether the conduct of the respondent in not shortlisting the applicant for position of Deputy Principal amounts to unfair labour practice as contemplated in Section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended (the Act)
Background to the dispute
4. The applicant is employed by the respondent as a Post Level 1 Educator at Mthatha Technical College. She applied for a Deputy Principal Post which was advertised in Bulletin Vol.2 of 2018 but was unsuccessful as she was not shortlisted. The applicant submitted that she met the minimum requirements of the job. She also submitted that the school principal unduly influenced the interview panel and the interview of the candidates continued in the absence of the SGB chairman who at the time was suspended. She requested the appointment of the incumbent, Mrs Noma Mququ who is the second respondent in this dispute, to be set aside.
5. The respondents submitted that the applicant and second respondent met the minimum requirements of the job but the applicant lacked managerial experience. It was also submitted that SADTU participated in deciding amongst five candidates who were shortlisted for the post. The applicant together with three other candidates had not been shortlisted.
The applicants’ case
6. The witness of the applicant, Miss Khanyisa Tekula, testified that she was suspended as the chairperson of the School Governing Body (SGB) at the time that the applicant applied for the position of Deputy Principal. The reason for her suspension was because she voiced her discomfort about the division in the SGB and how she was not taken seriously. The Principal, Mr Ntsikelelo Ngibe who is Mthatha Technical High School Principal, was responsible for resourcing and not supposed to nominate members of the interviewing panel but he nominated Mr Zitwana. She wrote a letter to the District Director (Page 23) with the assistance of the Department of Health official, because the School Principal had not been treating them well.
7. Under cross-examination she conceded that she had not raised her dissatisfaction in the meeting during which candidates were shortlisted. She stated that had not been sure of the applicant’s experience and educational qualifications were. She admitted that the second respondent has managerial experience. The applicant testified that she started working for the respondent in 1992 and listed her qualifications.
8. The first witness of the respondent, Mr Bulelani Zitwana, testified that he serves on the School Governing Body as one of the teachers and that he was also a secretary for the selection of the panel. This was not disputed. He further testified that both the applicant and incumbent met the minimum requirements of the job and the former was not shortlisted because she did not have managerial experience, a criteria set by the selection panel, when compared to seven other candidates who had also applied for the post. He further testified that the school Principal was in a meeting as SGB member and accountable for resources.
9. The second witness of the respondent, Mr Ntsikelelo Ngibe, testified that he is the Principal at Mthatha Technical College. He was called by the SGB to select a panel for shortlisting and interviews for a Deputy Principal post. In that meeting the people who had an interest in the said post were asked to leave the room and the applicant also left the room as she had also applied for the post. He denied having said anything when the applicant left the room or nominating anyone to the selection panel. The selection criteria was set in the presence of representatives of SADTU and NAPTOSA. Five candidates were shortlisted but the panel did not know their names as they were not shown to them. The candidates who were shortlisted had managerial experience.
10. Later on (he could not remember the day) he received a letter from the chairperson (Miss Tekula) of the SGB challenging the selection process and that confused him because she was chairing the meeting. He called the chairperson and asked for clarity. She told him that the letter was written by the applicant.
11. He further testified that representatives from SADTU and NAPTOSA observed the selection process and informed them of the key points that they needed to consider in the applications. However, the decision regarding which criteria to adopt rested with the selection panel
12. The applicant argued that the criteria were set in such a manner that it prejudiced the applicant, Ms Mpitshane. She averred that by his own admission, Mr Zithwana had testified that they had scored applicants with management experience. These criteria are contrary to PAR.B.3.23 of the Personnel Administration Measures read with ELRC Res 5 of 1998. The requirements for the post of Deputy Principal are: REQV 13 or 14, 5 years teaching experience.
13. The first respondent argued that the panel was correctly constituted in that all members who spoke in the SGB meeting concerned were subject to the authority of Miss Tekula as the chairperson and their contributions had been noted by her. It was further argued that the Principal had not nominated any member to the selection panel and even if he had, the Principal, in terms of South African Schools Act 84 of 1996, a member of the SGB is entitled to do so.
Analysis of evidence and arguments
14. In disputes of unfair labour practice, the rule “he who alleged must prove” applies. Following this rule, the applicant in this case bears an onus to prove on a balance of probabilities that the conduct of the respondent constitutes an unfair labour practice as contemplated in Section 186(2)(a) of the Act. In Buffalo City Public FET College v CCMA and Others (P372/12)  ZALCPE 18 it was held that in unfair labour practice disputes particularly in those relating to promotions, the onus is on the employee to prove that he or she is a suitable and better candidate for the position in question. In this dispute the applicant is challenging an omission by the respondent to shortlist her for the position of Deputy Principal, which she applied for.
15. The following issues were common cause;
13.1 That the applicant applied for the Deputy Principal Post and met the minimum requirements of the job. The incumbent also met the minimum requirements of the job.
13.2 That the applicant is a Post Level 1 Educator and the incumbent had been an HoD before she was appointed to the position of Deputy Principal.
16. The applicant did not dispute that the second respondent also met the minimum requirements and that she had managerial experience which the applicant did not have. It was also not disputed that all five candidates who were shortlisted for interviews had managerial experience and had scored higher points than the applicant. There was no proof, in my view, that the applicant was the best candidate for the job. If this was the case it would have been unfair of the respondent not to allow the applicant an opportunity to compete for the post. In Noona v Safety and Security Sectorial Bargaining Council and others  33 ILJ 2597 (LAC), the court held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. I am not satisfied that the applicant has proved that she was denied an opportunity to compete for the post. It is my view that the respondent selected for interviews five suitable candidates and appointed the best candidate. In the selection process the applicant was not one of the five candidates.
17. If an employee is not denied the opportunity of competing for a post then the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason, Noona case (supra). The evidence of the applicant, did not establish conduct that can be viewed as an unfair labour practice. I am further of the view that the union would still have contested the post on behalf of the second respondent if another candidate had been appointed to the contested post. It was not denied that the union was present in the selection process to observe and it also gave guidance to the selection panel, but the decision was made by the panel. In Ncane v R Lyster NO and other  4 BLLR 350 (LAC) the court held that an arbitrator may only interfere with an employer’s substantive decision to promote a certain person where the decision is irrational, grossly unreasonable or mala fides unless the employer has set aside an objective standard but not applied it. The applicant did not dispute that the second respondent qualifies for the job. She also did not aver that the applicant was better qualified than the candidates who were selected for interviews. I therefore could not find any unfairness or unreasonableness in the decision of the respondent.
18. Based on the above reasons I am therefore of the view that the applicant has failed to discharge her onus to prove that the conduct of the respondent constitutes an unfair labour practice as contemplated in terms of Section 186(2)(a) of the Labour Relations Act 66 of 1995, as amended. I therefore accordingly make the following award;
19. The application is dismissed
Commissioner: Thobela Ncetezo