Case Number: PSES700-19/20NW
Province: North West
Applicant: LC MPHATLHANE
Respondent: DEPARTMENT OF EDUCATION: NORTHWEST
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Northwest Department of Education District offices in Mafikeng.
Award Date: 24 February 2020
Arbitrator: Monde Boyce
Case No ELRC PSES700-19/20NW
In the matter between
LC MPHATLHANE Applicant
DEPARTMENT OF EDUCATION: NORTHWEST Respondent
ARBITRATOR: Monde Boyce
HEARD: 24 February 2020
CLOSING ARGUMENTS: 24 February 2020
DATE OF AWARD: 24 February 2020
PARTICULARS OF PROCEEDINGS AND REPRESENTATION:
 This matter was set down for arbitration on 24 February 2020 at the Northwest Department of Education District offices in Mafikeng. The applicant attended the process and was represented by Miss Khalipha, a practising attorney. Mr Meje, the Deputy Director: Labour Relations, appeared for the respondent.
 Both parties submitted bundles of documents and the proceedings were digitally recorded and typed notes taken.
 Parties had, in keeping with the Council Rules, held a pre-arbitration meeting and concluded minutes which they duly signed. I must however mention that while the applicant, in terms of the initial pre-arbitration minutes signed on the date conciliation was held, sought setting aside the appointment of the incumbent in the position he applied for, Miss Monyapelo, he changed the relief he sought on the date of arbitration of 24 February 2020 to monetary compensation. In that regard, paragraph 4 on Relief Sought was amended to state monetary compensation as the relief sought. To the extent that this became the case, it became unnecessary to join Miss Monyapelo as the second respondent in the arbitration process. I thus excused her from the proceedings.
THE ISSUE TO BE DECIDED:
 I am required to decide whether the respondent’s decision not to shortlist the applicant for a position of Principal at Stadt Primary School was unfair and thus constituted unfair labour practice in terms of Section 186 (2) (a) of the Labour Relations Act 66, 1995 as amended (LRA).
THE BACKGROUND TO THE DISPUTE:
 The applicant is currently employed as the Deputy Principal at Stadt Primary School. He earns a salary of R451 899.00 per annum. During the month of August 2019 he applied for a position of Principal at the very school where he is teaching. He however was not shortlisted for the position. He lodged a grievance where he complained about his non-shortlisting. The shortlisting process was nullified and a fresh shortlisting process constituting a different panel was started. He was again not shortlisted. Unhappy with the employer’s decision not to shortlist him, the applicant referred an unfair labour practice dispute to the ELRC for conciliation. When conciliation failed, the applicant referred the dispute for arbitration. He seeks monetary compensation as relief.
SURVEY OF EVIDENCE AND ARGUMENT:
The Applicant’s Evidence
 The Applicant, Mr Lefedile Cyprian Mphathlane’s testimony was that he applied for a position of Principal at Stadt Primary School after the principal passed away. He has held a position of Deputy Principal at the school for nine (09) years. On 22 August 2019, shortlisting of candidates was done but on 23 August 2019 he realized that he had not been called. He wrote a grievance to the Sub-District Manager of Mafikeng complaining about not being shortlisted.
 He expected to be shortlisted because he met the requirements as stated in the advertisement. The requirement was that candidates possess seven years’ experience as manager, and he had nine years’ experience as the Deputy Principal of the same school. After having filed the grievance, he did not receive any response from the district. He heard from the grapevine that interviews were cancelled. A second round of shortlisting was done, but he was again not shortlisted. He approached his legal adviser who wrote a letter to the Sub-District Manager. The employer however did not respond to the letter. Interviews subsequently went ahead without him being advised of the employer’s response to his grievance. A new principal was appointed. He decided to refer an unfair labour practice dispute to the council.
 According to the Circular, the requirement was seven (07) years and he possessed nine (09) years’ experience. The shortlisting panel however introduced 15 years’ experience as an additional requirement and thus excluding him from being shortlisted. While he accepts that the first panel could have made a mistake, he believes that the panel was unfair when it did not shortlist him during the second shortlisting round. The procedure was that the Circuit Manager should have consulted the School Governing Body in the selection of the panel.
The Respondent’s Evidence
 The respondent’s witness, Miss Kaone Portia Makabane, testified that she is employed by the Department as the Circuit Manager for Central Cluster, Mafikeng Sub-District. She is aware of Circular No 20 of 2019 on Promotion and Appointment of Principals, Deputy Principals and Heads of Department. As a Circuit Manager, her role is to ensure that school have management and she has a responsibility of seeing to it that SGB members are taken on board regarding the circular on recruitment. The SGB is responsible for appointment of interviewing committee. Training was done for all SGB members who were to get involved in the recruitment process. She had a meeting with the SGB to inform them that the post was going to be advertised and that they must appoint or establish a committee that was going to conduct the shortlisting and interviewing process.
 She is aware of the document contained on page 27 of the employer’s bundle. She was a resource person and was involved in the compilation of the shortlisting minutes. Mr Leshole, the Circuit Manager from Tswaing Sub-District chaired the panel. The process followed by the panel in coming up with the shortlisted candidates was to first consider the non-negotiables. The panel looked at the principals and looked at those with more experience and as well as the deputies and HODs. They checked the acting principals and looked at whether they qualified based on experience in management. The panel was fair in its shortlisting. General experience of candidates was looked at and all of the candidates met the minimum requirement of seven (07) years management experience. The panel had to reduce the number to three and it considered candidates with more managerial experience. The applicant had less experience compared to that of candidates that were shortlisted.
 She is aware of the grievance lodged by the applicant. Upon receipt of the grievance by the chairperson of the first interviewing panel, the grievance was reviewed by the first panel with the involvement of representatives of organized labour and concluded that the applicant had less experience than the shortlisted candidates as shown on page 32 and 33 of the employer’s bundle. She is also aware of the letter authored by the applicant’s attorney which was sent to the Sub-District Manager, Mrs Mojafe, who acknowledged receipt of the letter. She received a message on 03 September 2019 informing her to stop the interviews that were to be conducted on 24 September 2019 and to start the process afresh. She had then called all of the candidates to stop them from coming to the interview. She wrote letters to the SGB informing them about nullification of the shortlisting process. The reason for nullification of the process was an allegation that one of the members of the interviewing panel allegedly had a relationship with one of the candidates.
 She was again part of the second shortlisting process where the SGB had been advised to constitute a new panel and exclude the member who was alleged to have a relationship with one of the candidates. The second panel first looked at the minimum requirements and thereafter looked at additional criteria, and they came up with the candidates who were shortlisted. The applicant was not shortlisted because the candidates shortlisted had more experience than the applicant, and the majority of them were principals.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
 In the present case, it is the applicant who bore the onus to prove that the respondent acted unfairly. But while the applicant had the onus to discharge, the respondent bore the evidentiary burden to show that its conduct was not unfair and thus did not constitute unfair labour practice. The Courts have now settled the law on onus of proof. In paragraph  of its judgment, the Labour Court in Pamplin v Western Cape Education Department (C 1034/2015)  ZALCCT held that: “The onus to establish that conduct complained of constitutes an unfair labour practice within the meaning of section 186(2) of the LRA rests on the employee. The employee must therefore be able to lay the evidentiary foundation for his or her claim of an unfair labour practice. Mere dissatisfaction with the outcome of a recruitment or selection process is not sufficient to sustain that claim.”
 The Court however did not stop there. It went on to hold that there is an obligation on the employer to place evidence that it acted fairly and in good faith during the promotion exercise and that in the absence of such evidence, it would be irrational and unreasonable to conclude that the employer acted fairly, regardless of where the onus lies.
 It is also trite law that there are limited grounds on which a Commissioner, or a Court, may interfere with a discretion which has been exercised by a party competent to exercise that discretion. This view was confirmed in City of Cape Town v SAMWU obo Sylvester and others (2013) 34 ILJ 1156 (LC) ;  3 BLLR 267 (LC) where the Court, making reference to Aries v CCMA and others (2006) 27 ILJ 2324, held that the overall test is one of fairness and went on to list a number of factors that bear relevance on whether the employer acted fairly in failing or refusing to promote an employee.
 As is always the case with promotional decisions, employers decide who, when and how to appoint candidates and would, often than not, develop policies on the procedure that needs to be followed for such appointments including the criteria to be met by candidates for an advertised post. In the present case, a position was advertised and, in terms of Departmental Circular No 20 of 2019 (the Circular) sent out on 04 June 2019 relating to appointment of Principals, Deputy Principals and Departmental Heads: “…shortlisting must be manageable and should not consist of fewer than 3 candidates and should not exceed five candidates per post” (Department’s own underlining). My interpretation of this paragraph is that the shortlisting/interviewing panel should, irrespective of the number of candidates meeting the minimum requirements, introduce as such measures as would bring the number down to a minimum of 03 and not more than 05 candidates to be recommended for appointment.
 Because of this provision, it, in my considered view, cannot be said to be unfair for a panel to introduce or apply criteria that is fair and which criteria would be aimed at scaling the number of candidates to three or a maximum of five most suitable candidates. Evidence before me is that, in scaling down the number of candidates from a total of thirty nine candidates to the three that was recommended for appointment, the panel considered candidates with the most experience. According to the employer’s witness, the panel considered all the three candidates, including the applicant, and concluded that all of them met the minimum requirements in terms of the advertised post. But because all the candidates, the applicant included, met the minimum requirements, it was up to the panel, in keeping or in line with the provisions of paragraph 6 of the Circular, to introduce a measure that would bring the number down to the three or five candidates to be recommended for appointment.
 The measure that the panel considered was, as I stated in paragraph  to look at candidates with more than the seven years minimum experience. In that regard, and contrary to the contention by the applicant, the panel, according to evidence before me, did not set out to introduce any additional criteria outside of that stated in the Circular, which was seven years’ experience. Seven years’ experience was set out as the minimum requirement to be met, but because this was a minimum number of years’ experience required, there was nothing stopping the panel from looking at the list of candidates they already had, and decide who possessed more experience than the others as, it (panel) did. In that regard, I cannot find the panel to have erred or acted unfairly in looking at more years’ experience as a measure to bring down the number of candidates.
 While the applicant’s evidence and contention was that he was unfairly excluded from being shortlisted, it is my finding that his exclusion was neither unfair or discriminatory as he alleged. He was, but one candidate amongst a total of 39 candidates who all met the minimum requirements in a process open to all. In that regard, he needed not be given any special treatment than any of the other candidates who met the minimum requirements, but ultimately got excluded from being shortlisted when the interviewing panel decided on the most experienced candidates to be shortlisted for interviews.
 My suspicion, and which suspicion is founded on the applicant’s representative’s argument, is that the applicant believed he should have been shortlisted because the post was advertised at the very school where he has been the Deputy Principal at for nine (09) years. But the advertisement was open to all candidates who met the requirements and no specific mention was made that a candidate who already holds and possesses managerial experience at the school the position was advertised for should be given preference. The applicant had to be subjected to the same process as all other qualifying candidates. He was not, and he did not have to be treated any differently from the other candidates who applied for the position, and who met the minimum requirements but were not shortlisted. In the event the applicant were to be treated any different from the other candidates who met the minimum requirements but not shortlisted, same would have had the undesirable consequence of having the other candidates who were eliminated claiming that the employer acted unfairly.
 In my considered view, it was not enough for the applicant to merely allege unfair labour practice without substantiating the claim. He was required to place as such evidence as would point to the panel having acted unfairly and outside the bounds of what they were required to within. The applicant had, in this regard, dismally failed to show any unfairness in the manner that the process was handled. In any event, the three candidates who were ultimately recommended for appointment, including the incumbent, Miss Monyapelo who happened to be an acting Principal at the very school the applicant was based at during the time the position was advertised, all had far more experience than the nine years the applicant possessed. In other words, the applicant was not a candidate with the most experience than the three candidates recommended for appointment. Not only did the three candidates possess more managerial experience than the applicant, most of them had between 22 to 32 years teaching experience over and above the managerial experience they possessed. The scenario would of course be completely different in circumstances where the applicant possessed the same number of years teaching and managerial experience as the five candidates who were shortlisted. But that was not the case. It is my finding that the applicant has failed to make a case for unfair labour practice and interference with the decision not to shortlist him is not warranted.
 I therefore, in the premises, make the following award:
 The respondent’s failure to shortlist the applicant for the position of Principal at Stadt Primary School did not constitute unfair labour practice.
 The application is accordingly dismissed..