Case Number: PSES 533 15/16 KZN
Applicant: Y Kistasamy
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Port Shepston
Award Date: 25 October 2019
Arbitrator: Vuyiso Ngcengeni
Case : PSES 533 15/16 KZN
Date of Award: 25 October 2019
Panelist : Vuyiso Ngcengeni
Province : Kwazulu Natal
Employee : Yagambaram Kistasamy
Employer : Department of Education – Kwazulu Natal
Issue : Unfair Labour Practice - Promotion
Venue : Port Shepstone
In the ARBITRATION between:
Y Kistasamy Employee
Department of Education – Kwazulu Natal Employer
Employee representative: Mr Richard Donache (attorney)
Telephone : 031 304 3621
Fax : .031 301 7223
Employer representative: Mr Musa Mabaso
Telephone : 033 846 5200
DETAILS OF THE HEARING AND REPRESENTATION
1. This is the award in which I record briefly the evidence, submissions as well as analysis thereof that informed my findings in the arbitration hearing that was held on 08 July 2019 and on 09 September 2019 at the Employer’s premises in Port Shepston.
2. The arbitration was held under the auspices of the Education Labour Relations Council (the Council).
3. The dispute was held in terms of s 186(2)(a), which is an alleged unfair conduct in relation to failure by the Employer to promote the Employee.
4. The Employee was represented by Mr Richard Donache who is an attorney and the Employer was represented by Mr Musa Mabaso.
5. The appointed person was not joined in these proceedings as the parties have informed me that he was late and another person has since been appointed subsequent to a different recruitment process.
6. The parties submitted one common bundle which I will refer to it as such.
7. The bundle is made of 56 pages and it includes HRM 15 Circular dated 17 April 2014, a memorandum from the Employer dated 18 March 2016, minutes of the grievance committee, completed grievance forms from SG Moodley and R Audan and the details thereof, minutes of the shortlisting committee, correspondence between the parties and the grievance form from the Employee.
8. The hearing was conducted in English and I also electronically recorded it.
9. I received the closing arguments from the parties on 18 September 2019.
ISSUE TO BE DETERMINED
10. I am required to determine whether the failure by the Employer to appoint the Employee to the post of Principal at the school amounts to an unfair conduct. The non-appointment followed a decision of the grievance committee to nullify the outcomes of the process undertaken by the Interview Committee after two grievances were lodged.
11. The Employee seeks protective promotion to the position of Principal with effect from 01 October 2015.
BACKGROUND TO THE DISPUTE
12. The Employee is employed at Maristella Primary school (the school) as a level 1 teacher and earns R 395 000.00 per year. He applied for a position of Principalship at the school which was advertised in May 2014.
13. The position was advertised in April 2014 bulletin. The first interviews were held on 11 September 2014 and the Employee was amongst the 5 shortlisted candidates. The interviews did not continue as the there were allegations of grievances raised against the inclusion of the Employee in the interviews.
14. The SGB then handed the process over to the department and it subsequently resigned.
15. On February 2015, the department put a panel to conduct the process. Again the Employee was shortlisted and he was interviewed on 18 February 2015.
16. Grievances were formally lodged by Mrs R Audan (Audan) who was the Acting Principal at the school at the time and Mr SG Moodley (Moodley), who was the Head of Department. Both educators were applicants for the position.
17. On May 2015, a grievance committee was put in place to handle the disputes aforementioned.
18. The grievance committee sat and after deliberating on the grievances, it decided that the process should be re-done from the shortlisting stage.
19. This decision was based on the allegations that firstly, one of the Departmental representatives, Mr Jenkins had in the past conducted an investigation at the school and as such, he had prior knowledge about some of the candidates, and secondly, that the Employee lacked management experience as he was not part of the Senior Management Team (STM) and thirdly, that the presence of Ms B Mpunzana (a NAPTOSA observer) prejudiced Audan in that she did not disclose that she had worked with the Employee and that they were friends.
20. After the shortlisting, the Employee was again shortlisted and invited to the interviews around August 2015.
21. Employee refused to participate in the aforesaid interviews, stating that there was nothing wrong with the interviews conducted in February 2015.
22. The panel proceeded with the interviews and an appointment was duly made with effect from 01 October 2015 to fill the vacancy.
23. The Employee referred this dispute to the Council in October 2015 and the conciliation was held on 26 November 2015, in which the matter remained unresolved and a certificate was thus issued.
24. The Employee then referred the dispute for arbitration in November 2015.
25. The Employee is still occupying a level one position.
SURVEY OF EVIDENCE AND SUBMISSIONS
The employee testified under oath as follows:-
26. The post was advertised in April 2014 and he applied and was shortlisted and in the first round, according to his knowledge, the two grievant employees were not shortlisted.
27. In September 2014, he was informed that the two grievant employees have lodged dispute for not being shortlisted. The interviews did not proceed and the SGB resigned.
28. The Department of Education put together a panel which then conducted interviews in February 2015 and he was invited and was later informed that he was ranked number one.
29. Grievances were lodged by the two grievant employees again and the grievance committee decided that the process be redone from the beginning.
30. He has been an educator for about 23 years at the time of the interviews and has been serving at the Senior Management Team level, after he was co-opted by the Principal because he was a Master Teacher. He was very instrumental in creating virtually all the policies at the school and he served in the SGB for 12 years as a staff representative.
31. In his CV, he had identified all the management responsibilities he had done in the previous three years. He was also a Deputy Secretary of organised labour.
32. He only got to know about the Moodley’s grievance which is on page 40 after he requested it from the Employer.
33. He has been an observer before and the responsibility of an observer is to observe, police and watch that the process is conducted fairly as defined on page 8-9 clause 9 of the bundle.
34. On the 1st round, Mpunzana was not an observer and to his knowledge, that process was signed off as having been fair. The comment of an educator who was sitting as an observer is immaterial and is untrue. His previous interactions with Mpunzana would have had no bearing on the fairness of the process. Other observers from SADTU were present and he was a member of SADTU at the time.
35. There were five criteria and management was one of them and Moodley should have relied on that.
36. In 2010 there was an investigation into the school’s SMT which was conducted by Mrs Van Wyk. He has no knowledge of Jenkin’s investigations except when there was a disciplinary matter against one teacher and he (Employee) represented that specific teacher and Jenkins was a prosecutor. The said teacher was subsequently dismissed.
37. Jenkins was a Labour Relations Officer based in the District of Port Shepston.
38. Referring to Audan’s grievance, Mpunzana is from another union and the union did nothing wrong by deploying her as such.
39. When he learned that the panel was put by the Member of Executive Council (MEC), he realized that it was well experienced and some of the panelists serves as district managers and were professionals who knew what they were doing.
40. He knows Sibiya, Mtshali, Govender and Wood (page 34). He disagrees with the findings on page 36 as he was a Master Teacher and also served in the SMT.
41. There is nothing at all that he was given by the NAPTOSA representative and observer.
42. He never had any interactions with Jenkins except when he represented an employee.
43. The only information he had (page 37) was from the SADTU representative saying the process was free and fair.
44. Mr Wood oversaw the process on behalf of the department. Normally, the candidates’ names are not revealed and CVs are referred to on numerical basis.
45. In his knowledge of observing and writing CVs, setting out the skills set is not an easy task and he learned that as a union representative. If the other 2 un-shortlisted candidates did not articulate their skills set in their CVs, may be that was the problem that made them not to be shortlisted.
46. Under cross examination- He agreed that the Employer was obliged to attend to the grievances lodged. He disagreed that being ranked number 1 does not necessarily mean that he would be appointed and said the Head Of Department (in the Province) would have valid reasons not to appoint him. Agreed that at least 3 names must be submitted, as per the process. Agreed that the defined positions of SMT are the Principal, Deputy Principal and Heads of Departments and said that in his case, it was called the extended SMT and the department was fully aware that he was co-opted into the SMT. He served as a grade head. Jenkins’ position in the interviews was to read CVs and he was not active in the interviews he does not agree that the person who reads the CVs is the only one who sees the names of the candidates as some of the interviews he has sat on, the Interview Committee chairperson would pass on the CVs. He could not dispute that in the interviews only the CV reader saw the names but disagrees that such a person is active and submited that the interaction was from the panelists who scored. He has no knowledge of Jenkins having been involved in other matters at the school.
The Employee represented submitted the closing statements -
47. It is trite that decisions taken in relation to promotions are part of the prerogative of the employer. However, the employer can restrict its exercise of that prerogative, in relation to a specific promotion process, where the employer determines that the promotion will take place in accordance with a predetermined selection methodology.
48. The essence of the Applicant's case is that the Grievance Committee exceeded its powers in setting aside the process that had been undertaken. The Grievance Committee was required to act reasonably and rationally and was only entitled to set aside the process where there were grounds upon which the promotion process could be subject to a legitimate challenge, having regard to the jurisprudence that there is in relation to the circumstances in which the decision of an interview panel can be assailed.
49. In essence, the case authorities with regard to the acceptable grounds for a challenge against the decision of interview committee, is clear. Unless the decision of the interview panel is not taken in accordance with the prescribed procedure or, is irrational or arbitrary, the decision must stand. After all, it is not the function of an arbitrator, a court or a Grievance Committee to usurp the function of the interview committee.
50. It is apparent from a consideration of the evidence, that the Grievance Committee did not act reasonably, rationally and within their powers, in setting aside the determination that had been made by the interview panel, as to the best candidate for the position.
51. Apart from a general reference to investigations that were carried out by Jenkins, there was no evidence as to precisely what had been investigated by Jenkins, who had been involved in the investigation and whether any conclusions had been drawn by Jenkins pursuant to those investigations. There was no factual foundation, on what was before the Grievance Committee, to suggest any bias or potential for bias.
52. On the balance of probabilities, it must be concluded that the Grievance Committee did not investigate the nature of Jenkins involvement in any investigation and the interactions that he may have had with any of the candidates, for it to have been able to draw any conclusion in relation to any bias or perception of bias on the part of Jenkins, which would have required that he recuse himself from any involvement in the panel.
53. There is simply no rational basis to suggest that Jenkins should have recused himself.
54. The Grievance Committee did not consider the CVs to see whether there was any basis to conclude that the interview panel had acted arbitrarily in preferring the Applicant to the two grievants.
55. As it is, the issue of management/leadership experience, is only one of the criteria on which candidates were scored. In the absence of any evidence before the panel to suggest that the interview committee had acted in an arbitrary fashion, the decision to set aside the decision of the interview panel was simply not justified.
56. The further grounds relied on by the committee, in relation to the involvement of the observer, was spurious, to say the least. There was simply no evidence in that regard. Furthermore, the reliance upon an apparent perception of bias on the part of Jenkins, with no factual foundation in that regard, whatsoever, was simply irrational.
57. In reaching a decision which was irrational and unjustified on what was before them, the Grievance Committee exceeded their mandate and had no power to set aside the promotion process that had been undertaken. Accordingly, the selection undertaken by the interview committee, should stand.
58. In the circumstances, it is submitted that the Applicant has discharged the onus of showing that there was an unfair labour practice perpetrated by the Respondent. The appropriate relief is for the Applicant to be granted a protected promotion.
The employer’s case
Mr Ronald Charles Wood (Wood) testified on behalf of the Employer as follows-
59. He is the Chief Education Specialist for the Sayidi Circuit Management Centre (CMC) and he was the Acting Circuit Manager in 2014 when the post was advertised and was involved in the recruitment process for the post as the departmental nominee.
60. Management at school level is made of the Head of Department/s, the Deputy Principal and the Principal only and that is known as the SMT. If it is true that the Employee was a member of the SMT, that would be an adhoc management, not known by the department and not informed by policy.
61. He knows the grievances on page 38 to 44 of the bundle and he was a member of the Grievance Committee and the minutes of the grievance hearing as contained on pages 34 to 37.
62. Jenkins was part of the grievance committee but he was not available.
63. The two aggrieved educators made representations and took the committee through their statements. Kheswa was present so that they could cross examine her against the presentations made by the two educators.
64. Jenkins was mentioned in terms of the investigations he had conducted.
65. Jenkins was active in the interviews as he read the CVs and that is one of the most active roles as he was the only one who had access to the names of the candidates.
66. Due to Jenkins’ absence, he contacted him telephonically to verify whether he had been involved in the investigations at the school and he agreed. The meeting was again held and they on the basis of available information, made their recommendations.
67. Jenkins’ s presence in the interviews was very key in their conclusion and also one issue was that the interview process should harvest those applicants with the necessary management experience. He believes that they did so and they were reasonable and rational in what they did. They also considered management experience, undue influence, badgering by union members, the role of NAPTOSA which was posing particular questions towards a particular director.
68. Under cross examination – He could not recall whether he was involved in the reading of the CVs in the aborted process. He was acting in a supervisory capacity at the time. He had been acting as a Circuit Manager for about a year and he would have interacted with the Principal on a number of occasions, so as the Deputy Principal and the Employee. He did not think that the aforementioned would have been a bar for him to participate in the process, including reading out names. The normal procedure is that he would have been the 1st to know if there were problems at the school, but he would not necessarily have investigated them. Serving as a departmental representative is a function of the circuit management and the appointment is done by the Department. He agrees that the scoring was done first, before the names were read out and only after the names were revealed did the committee have a problem. The candidates were shortlisted although there were still questions and the interview panel members were:
- Mrs Kheswa – chairperson, she is a Circuit Manager
- Mr Zondi – he is a Subject Advisor
- Mrs Sithole – she is a Circuit Manager
- Ms Mbotho – she is Subject Advisor
69. The panel members should know about the processes. Jenkins also participated. The interaction he has had with the 3 candidates were only that he asked whether they were investigated and formed an opinion on the Employee and Audan. The investigations conducted by Jenkins were about issues taking place at the school and during the investigations, he interacted with the Employee and Audan. The issues related to financial mismanagement and the Employee’s absence. Because of the issues of the school being high profile and in the media, the Director took issues pertaining to the school to himself. These are the issues that he verified with Jenkins. The recommendations of the Grievance Committee is done on the basis of the merit of what was brought before it. They assessed whether the selection committee did their job when scoring candidates. In doing so, they looked at the CVs of the interviewed candidates and compared them. As they were dealing with a grievance, they had to look at whether there were merits and they found that there were merits with respect to Jenkins. In terms of criterion, the post is that of a principal and it required someone with management experience and in this case, that was not the case. Management and related experience is one of the 4 criteria, but it is the thread that runs through all of them. The overriding factor in overturning the recommendation was Jenkins being in the panel and having an active role therein, given his knowledge of certain individuals involved. The grievance committee decision on page 46 was signed on the 13th of May 2015. It could have been on the 13th of May when the second meeting was held. It is more than likely that his testimony is incorrect because it does not reflect the adjournment of the meeting, neither does it reflect his interaction with Jenkins. He consulted Jenkins. The issues stated on page 35 relate to the SGB issues. Jenkins failed to declare that he had interventions at the school and therefore recuse himself. The fact that he read the scores, he could have skipped a sentence or said something untoward and no one would have known about that. The Principal’s inclusion in the panel may produce a perception of bias and it would therefore be upon the candidate to lodge a grievance. Jenkins conducted investigation involving both parties and reached certain conclusions, and that is the bias. Knowing candidate does not on its own, hinder one from participating in the panel, and knowing that such a candidate would have the leeway of lodging a dispute when necessary.
Mrs Sphindile Kheswa (Kheswa) testified on behalf of the Employer as follows-
70. She is a Circuit Manager for Sikhayedwa circuit. The school involved falls under her circuit and she participated in the panel in 2015 put by the Department regarding the post in dispute, together with Zondi, Sithole, Mbotho and Jenkins, and she was the chairperson.
71. They decided that the CVs should be coded so that no one should know the names of the applicants, so they allocated numbers to the CVs and Jenkins read the CVs and the three panel members scored them. Jenkins volunteered to read the CVs and he was the only one who would know the names of the applicants in the CVs.
72. The three people who were scoring were listening to Jenkins as he read the CVs.
73. She was not aware of Jenkins’ involvement at the school in terms of investigations and had she been aware, she would have stopped the process and asked him to recuse himself because he would have known some information regarding the applicants.
74. She was called during the grievance meeting, to give evidence regarding the same matter.
75. When she said the process was fair as reflected on page 36, she was not aware of Jenkins’s involvement. Now having been aware, she would say that the process was not fair as he had been involved at the school.
76. She does not know who made the comment on the 5th bullet on page 36 which is “The shortlisting of a post level one educator with no management experience was of great concern.”
77. Under cross examination – Her role was to see that the whole process is conducted fairly. Only three out of the five panel members did the scoring as reflected on page 49. The scores were allocated and then averaged. She did not say what scores needed to be allocated, neither did Jenkins. The principal would know some of the applicants but that would not necessarily mean that he would be obligated to recuse himself from the process, even the fact that he works or may have worked with the Employee in any other function. She referred to clause 10 on page 8 – Recusal and stated that a personal interest would mean that somebody would amongst the applicants want someone either to be appointed or not to be appointed, meaning a bias towards or against. It cannot just be left to the person whom is perceived to be bias to decide. She knows that Jenkins has conducted investigations at the school, but she does not know the details thereof. It would have been her responsibility as the chair who wanted the process to be fair to know about that, as the information that Jenkins may have may influence him for or against one candidate or more. Jenkins was not involved in the scoring on both the shortlisting and the interviews. The candidates were shortlisted on the basis of the score. Jenkins did not interfere with the process with regard to scoring. There was nothing odd in the manner in which Jenkins read the CVs. She was not asked about Jenkins and she brought his name in terms of him having read the CVs. All that was asked was the role played by Jenkins.
The Employer submitted the closing arguments –
78. Obviously the filling of any post has to be fair and free of irregularities. It cannot be tainted with doubts about fairness and have questionable areas lingering in the mind of a reasonable person.
79. It is only the Head of Department that can make an appointment and such is subject to him / her being satisfied with the process as per any consideration that needs to be had to make sure the appointment is proper. This is not dependent solely on any grievance lodged but rather the validity of the appointment.
80. As far as this dispute is concerned, Audan and Moodley lodged a grievance, complaining that they were unfairly not shortlisted and highlighted a number of issues which they viewed as irregularities.
81. These issues made any recommendation from the Departmental Committee questionable, and no satisfactory answers were provided before the Grievance Committee to eliminate the possibility (and, in fact probability) of either a very poor selection process or, as was more probable due to the involvement of Jenkins and NAPTOSA representative to a lesser degree, a process tainted by bias and favoritism, with the likelihood of shortlisting criteria being “fixed” to exclude genuine contenders for the post like Audan.
82. Consequently, the concerns relating to the interview panel’s recommendation could not be simply put aside in light of the likelihood that a proper recommendation had not been made. It was deemed feasible that the process be redone from the shortlisting stage.
83. In the redoing of the process, the Employee and other candidates including Audan and Moodley were shortlisted.
84. In terms of the procedure manual, any candidate can lodge a grievance and the Employer had the obligation to address it.
85. In this particular case, it was not disputed that the Grievance Committee had powers to deal with the grievance. Based on the Grievance Committee’s findings the way was not clear for an appointment to be made by the Head of Department as it is patently clear that many factors cast reasonable doubt in the selection process. The Employer had a discretion to take a rational have Jenkins removed from the panel and for the process to be redone from the shortlisting stage.
86. Given the possible bias, one cannot rely on his reading of the CVs. The non-declaration and/or non-recusal of Jenkins and other issues creating perception of bias, the unexplained shortlisting criteria to exclude persons with management experience, the concern of the Chairperson over this, the liability to place reliance on the observer to ensure a fair and blemish-free selection process all go towards making the decision to redo the process reasonable and, in fact, the only possible course of action other than to re-advertise the post. It surely cannot be accepted that the Employer turn a blind eye to all the problems that would concern any reasonable person and simply effect an appointment.
87. The actions of the Employer were rational and logical in the exercise of the discretion that the process be redone based on the issues already stated.
88. The Employee cannot be prejudiced if he believes in a fair process, no matter how many times it is done. If he chooses not to participate in the process of the filling of a post, that is his choice and it is not imposed on to him by the Employer. Naturally, he can have no claim in a process he does not participate in.
89. The Employee has offered no evidence that he was unfairly targeted by the Employer in any way in the decision making by the Employer on matters concerning the selection process. The Employer call for the matter to be dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENTS
90. Unfair labour practice definition has been interpreted by the Page 9 of 18 P54/09 Labour Appeal Court in Department of Justice v CCMA & Others  4 BLLR 297 (LAC) as referring to conduct relating to the actual promotion or non-promotion and conduct relating to promotion (see paragraphs  et seq1). The Labour Appeal Court further pointed out that “...
(iii) The decision to promote or not to promote falls within the managerial prerogative of the employer. In the absence of gross unreasonableness or bad faith or where the decision relating to promotion is seriously flawed, the Court and arbitrator should not readily interfere with the exercise of the discretion. …
(iv) A commissioner or arbitrator is not the employer. It is not the task of the commissioner or the arbitrator to decide who the best or most suitable candidate is. The role of the commissioner is to oversee that the employer did not act unfairly towards the candidate that was not promoted.”
91. It is common cause that subsequent to the resignation of the SGB and the panel put together by the Department, two grievances were received by the Employer from two applicants.
92. It is also common cause that the Department did put a grievance committee in place to handle the grievances and that that committee found that there was substance to the grievances and it set aside the process and ordered that it should be restarted.
93. It is important to state that at that stage, no appointment had been made and that the Employee was offered an opportunity to participate in another round of interviews.
94. It is common cause that the Employee having presented himself to the interviews, refused to participate in the process.
95. The Employee agreed that as there were grievances lodged by the two employees, the Employer was obliged to consider such grievances in terms of the grievance policy.
96. The outcomes of the grievance committee were such that the process should be started again from the shortlisting stage and the Employee’s application was considered and he was again shortlisted.
97. The Employee had an opportunity, in the cleaned process to present himself to the interview panel. He, out of his own volition chose not to participate in such a process, and thus abandoned his application.
98. The Employee appeared to trivialize the role played by Jenkins in the shortlisting and the interview stages, by stating that his role was not active, since he was only reading the CVs and not scoring.
99. Wood mentioned that Jenkins’ role was active in the interviews as he read the CVs and that in fact, it was one of the most active roles as he was the only one who had access to the names of the candidates.
100. Kheswa submitted that the mere apprehension of bias, cause by Jenkins’ participation in the shortlisting and the interview stages without declaration of his prior involvement at the school, made the process not be clean, hence they decided to have it redone.
101. Wood further mentioned that the fact that Jenkins read the scores, he could have skipped a sentence or said something untoward and no one would have known about that.
102. It is evident from the testimony given by the Employer’s witnesses that the grievance committee did apply its mind to the issues raised through the grievances and used the discretion vested on it to recommend that the process be redone from the shortlisting stage.
103. It is evident that the decision of the grievance committee was never set aside, hence the continuation of the latest round of interviews. To this end, such a decision remained valid and the Employee has only himself to blame, as he refused to participate in what would have been his second actual interview.
104. That said, I do not agree with the Employee’s assertion that the grievance committee’s decision is arbitrary and unreasonable.
105. In view of the above, I struggle to determine how else would the Employee have been appointed to the position, given that he decided to exclude himself from the latest interviews that led to the appointment to the post.
106. The Employee has deprived himself of an opportunity of being considered for appointment, as he refused to participate in the interviews, in a process which was supposedly clean as per the Employer.
107. The principles applicable to promotion disputes were re-emphasized in Ncane v R Lyster  4 BLLR 350 (LAC) the Appeal court on para 25 said “When it comes to evaluating the suitability of a candidate for promotion, good labour relations expect an employer to act fairly but it also acknowledges that this is not a mechanical process and that there is a justifiable element of subjectivity or discretion involved. It is for this reason that the discretion of an arbitrator to interfere with an employee’s substantive decision to promote a certain person is limited and an arbitrator may only interfere where the decision is irrational, grossly unreasonable or mala fides.”
108. Having regard to the total evidence in this matter, I am mindful of the Ncane case above, and that I need only interfere with the Employer’s decision where the decision is irrational, grossly unreasonable or mala fides.
109. To this end, it is my view that the decision taken by the Employer, following the recommendations of the grievance committee does not constitute an unfair conduct.
110. The Employer has not committed an unfair conduct when it did not appoint the Employee to the position of Principal at the school.
111. The application is dismissed.
Panelist / Commissioner