Case Number: PSES 760-19/20NW
Province: North West
Applicant: BOITUMELO JOHANNESBURG DIRATSAGAE
Respondent: DEPARTMENT OF EDUCATION: NORTHWEST
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: the Northwest Department of Education District offices in Mafikeng
Award Date: 26 February 2020
Arbitrator: Monde Boyce
Case No ELRC PSES 760-19/20NW
In the matter between
BOITUMELO JOHANNESBURG DIRATSAGAE Applicant
DEPARTMENT OF EDUCATION: NORTHWEST Respondent
ARBITRATOR: Monde Boyce
HEARD: 25 February 2020
CLOSING ARGUMENTS: 25 February 2020
DATE OF AWARD: 26 February 2020
PARTICULARS OF PROCEEDINGS AND REPRESENTATION:
 This matter was set down for arbitration on 25 February 2020 at the Northwest Department of Education District offices in Mafikeng. The applicant attended the process and was represented by Mr Mokgosi, a practising attorney. Mr Meje, the Deputy Director: Labour Relations, appeared for the respondent.
 A common bundle of documents was submitted, and the proceedings were digitally recorded, and typed notes taken.
 I need mention that because of the relief the applicant sought, it was not necessary to join the successful candidate since the outcome, where it was to favour the applicant, would not affect her. While Mr Meje, the respondent’s representative, raised a preliminary issue to the effect that the matter was not conciliated, that the certificate of non-resolution was issued without parties having had an opportunity of holding a pre-arb meeting, and that the applicant did not fill a referral for arbitration, I established that the matter was referred a Con/Arb and that to the extent that none of the parties objected to the Con/Arb process, it was not necessary that the applicant should have referred the dispute for arbitration. I accordingly ruled that the matter proceed to arbitration as scheduled and proceeded with narrowing of issues.
THE ISSUE TO BE DECIDED:
 I am required to decide whether the respondent’s decision not to appoint the applicant for a position of Departmental Head at Tlhohafalo Senior Secondary 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. In August 2019, he applied for a position of Principal at the very school that he is teaching at. 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 appointment to a similar position in a different school and compensation as relief.
SURVEY OF EVIDENCE AND ARGUMENT:
The Applicant’s Evidence
 The applicant, Mr Boitumelo Johannes Diratsagae, testified that he was called for an interview after he had applied for a position of Departmental Head after the then incumbent had relocated. He was asked by the School Principal to assist in the position. He was encouraged to apply when the post became vacant and funded. He applied for the position along with other Educators who worked under him at the school. After the interview, the School Governing Body (SGB) disputed the results. As opposed to other candidates, he (applicant) had answered all the questions. The first interview process was nullified.
 A fresh round of interviews was held at the District offices. The SGB was of the view that only the candidates who had participated in the initial interview were to be called. But another candidate, Miss Molaodi, was interviewed and ended up being appointed despite him (applicant) being the most suitable candidate for appointment. He was the only person who had both subjects for the post, which was a requirement. He met the requirements in terms of experience because he had twenty-one years’ experience as a Teacher at the time he was interviewed. He had been teaching SeTswana as a subject for a period of ten years. Amongst the candidates who applied, there was one candidate who had more experience than him who had resigned from the Department but re-joined the Department again.
 The appointed candidate, Miss Molaodi, had only English and not SeTswana as required by the post. The appointed candidate was also one of the Educators who worked under him and had no more than seven years’ experience. During that period, he had supervised and mentored the appointed candidate. The appointed candidate also was not shortlisted during the first round of interviews. He believed he was the best candidate for the position because he had both subjects, SeTswana and English that were required for the post. He was furthermore more experienced by the other candidate. While he was scored second in terms of the final selection process, he still believes that he was the best candidate having occupied the position in an acting capacity. He is aware that while the SGB recommends, it the employer that appoints candidates. He was never provided reasons why he was not appointed.
 The applicant’s witness, Mr Thabo Doctor Tsagae, testified that he knows the applicant and that he knows him as an Educator in a school where he was a chairperson of the SGB at. During May 2019, he was the member of the SGB and was the chairperson. He is aware of interviews that were conducted in respect of a position advertised as per Circular 22 of 2018. He sat as an observer in the interview process. The role of the SGB is to select the panel that will be conducting the panel and to be present in those interviews. The SGB was not involved in the process of selecting the panel that conducted the interviews of May 2019 at the District office. This should not have happened and was procedurally wrong. The role of the SGB in so far as interviews are concerned is that of also being part of the shortlisting of candidates to be interviewed. He had pointed out to the panel that they were not given an opportunity to be part of selecting the shortlisting panel and that they were attending the shortlisting process under protest. Shortlisting however went ahead despite their protest.
 The requirements for the post was possession of teaching experience in English and SeTswana. The applicant was the one candidate who possessed the two subjects. The applicant had more experience than the other candidates including the candidate that was appointed. The candidate that was appointed found the applicant already working at the school and acting as the HOD for the two languages. The appointed candidate had three years’ experience compared to the ten years’ experience the applicant possessed. The SGB had recommended the applicant for appointment and did so because he possessed the necessary experience and had faired well in his acting in the position of HOD. After recommendations by the SGB, appointments are made.
 While Miss Molaodi was cored highest, it had been agreed by the SGB that they needed to look at the candidate who possessed two languages. Miss Molaodi possessed only one language, and that is why they motivated for the appointment of the applicant in their recommendation. There were no counter recommendations that were made and the SGB never received any feedback on the recommendations and who appointed Miss Molaodi. He had reservations with the manner the interviews were conducted in that the candidates were treated differently during the interviews and where the applicant did not understand some of the questions, no clarity would be provided while the panel would repeat questions where Miss Molaodi did not understand the questions, and he raised this concern during the interview. Miss Molaodi had not been shortlisted in the first interview process but was included in the second interview. The SGB had informed the panel that the interviews that should have been appointed are the ones who had already been shortlisted and not starting over the whole process. Even though the first interview was nullified, the candidates who attended the first interview should have been the ones called. The SGB was part of the processes that shortlisted candidates for the interview process that was nullified. The SGB had not shortlisted Miss Molaodi because she did not qualify.
The Respondent’s Evidence
 The respondent’s witness, Mr Sello Samuel Ramong, testified that he is employed as the Human Resources Manager for the District. He is aware of the appointment that were made at Tlhohafalo Senior Secondary School. He is aware of the interview process that was nullified. The initial interview process was nullified because there was a misunderstanding between the SGB and Sub-District on how the process was run. The SGB was involved in the re-run of the interviews. He had at some point went to the school to discuss with SGB how the interview process was going to be run. He had met with the SGB of the school and it was agreed after the discussions that because they could not agree at Sub-District level, the interview must be taken over by the District. The SGB had then stated that they did not want to be part of selecting the interviewing committee and that the Sud-District should not be involved. The District then took over the selection of the panel and this was communicated with the SGB. The list of shortlisted candidates appearing on page of the bundle was sent to his office in order to have the District Director make the appointment.
 It was not correct for the SGB to recommend only one candidate. The SGB is required to recommend three candidates for possible appointment. Miss Molaodi was appointed because the recommendations of the SGB were not convincing. The SGB said in the recommendations that the applicant was acting in the position for seven years when this was not the case. Miss Molaodi had both languages according to the transcript.
ANALYSIS OF THE EVIDENCE AND ARGUMENT:
 I have taken into account the evidence and the arguments by both parties. The applicant’s case was that the respondent committed unfair labour practice by not appointing him to a position of Departmental Head at the school he currently is teaching at. The respondent’s case on the other hand was that its decision was fair and thus did not constitute unfair labour practice. The onus rested on the applicant to show that the breach of the procedure had unfairly prejudiced him and that the conduct alleged did constitute unfair labour practice. Having heard evidence, I am not persuaded that the applicant has made a case for unfair labour practice.
 The applicant’s case centered around the claim that he was more experienced and had met the requirements than the appointed candidate. He further alleged irregularities with the recruitment process in that while a first interview had been conducted where the successful candidate, Miss Molaodi had not been shortlisted, that interview was nullified and abandoned after complaints by the SGB. He further testified that while the appointed candidate was not shortlisted in the first interview, she was included in the list of candidates in the interviews held at the District office. While the applicant made this claim, he did not provide evidence in the form of shortlisting minutes of the first interview where Miss Molaodi’s name did not appear. But, in any event, that process was abandoned and was started afresh at the District office. That the process was handed over to the District to handle followed a complaint by the SGB where it wanted the process held at an independent venue without the involvement of the school and the Sub-District.
 Also, while the applicant’s witness, Mr Tsagae, testified that the successful candidate was not shortlisted in the first interview, he (Tsagae) also did not back this claim with documentary evidence in the form of shortlisting minutes showing the list of candidates shortlisted for the interview that was abandoned where Miss Molaodi’s name did not appear. Had the applicant presented this evidence, it would then fall on the respondent to rebut same by presenting evidence showing that Miss Molaodi was part of the list of shortlisted candidates or, where she was not, present evidence showing what informed the panel’s decision to include her.
 Evidence presented by the respondent in the form of the selection committee’s minutes as per pages 39 and 40 of the common bundle does show that Miss Molaodi was on the list of shortlisted candidates who were interviewed and recommended for appointment along with the applicant. This evidence was corroborated by Mr Ramong whose testimony was that not only did Miss Molaodi meet the requirements for appointment to the position but that she faired well and scored higher during the interview process. And contrary to the claim by the applicant, Mr Ramong testified that Miss Molaodi had both languages and not just one language as alleged. It was not the applicant’s case that, in contesting Miss Molaodi’s inclusion and in seeking to substantiate his claim, he sought documentation that the Human Resources Department had when it provided advice on appointment to the District Director. That being the case, the claim by the applicant and Mr Tsagae could not be sustained.
 Furthermore, Mr Tsagae was present during the shortlisting and interviews at the District office. While he testified that he and other SGB members sat in the process under protest, it was not his evidence that they confronted the panel about its shortlisting of Miss Molaodi and, to that extent, provide proof showing that they did in fact register an objection. The only documentary evidence before me is a note on the selection committee’s minutes showing that the SGB was asked to write their recommendation and the reasons. Nowhere does it appear that an objection to the inclusion of Miss Molaodi was registered. In keeping with the law on appointment of candidates, the SGB, as shown in the selection committee’s minutes, was asked to write a recommendation and the reasons for same, something the SGB duly did, albeit only recommending the applicant for appointment, and conduct that is in breach of Section 6 (3) (c) of the Employment of Educator’s Act 76 of 1998 (EEA) requiring that the SGB must submit, in order of preference, to the Head of Department at least three names of recommended candidates. In terms of the said provision, the SGB could only submit fewer candidates in consultation with the Head of Department, or the District Director in the present case. There was no evidence presented showing that when only the applicant’s name was submitted, the SGB had consulted with the District Director.
 As the party bearing the onus, the applicant needed to present evidence before me as would substantiate his claim and show that the employer acted unfairly or that the process was unfair. To the extent that the applicant would have succeeded in discharging the onus, and the employer failed to present evidence showing that its decision was not unfair as complained of, interference would be warranted.
 It is now trite law that Courts and Arbitrators should be hesitant in interfering with employers’ decisions. The Court confirmed this view when it, in the case involving Ncane v SSSBC and others (DA 27/15)  ZALAC 1; (2017) 38 ILJ 907 (LAC);  4 BLLR 350 (LAC) where the Court held that when it comes to evaluating the suitability of a candidate for promotion, good labour relations expect an Employer to act fairly but acknowledged that this is not a mechanical process and that there is a justifiable element of subjectivity or discretion involved. In Goliath V Medscheme  5 BLLR 603 at 609-610, the Court held, and for the above reason, that the discretion of an Arbitrator to interfere with an Employer’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. I need state that it would be wrong or perhaps ill-informed of any employee to believe, because he/she meets the requirements and has the necessary experience, that a result of a competitive process would automatically favour him or her
 In the present case, the appointment of the successful candidate followed a process where all candidates who met the requirements were afforded an opportunity to compete for the position. While it may well be, as the applicant alleged, that he was more experienced than Miss Molaodi, he, like all the other candidates who were shortlisted but not appointed, had equal opportunity of demonstrating before a panel in the presence of all stakeholders, that over and above his experience, he possessed the necessary competencies and what it took to be appointed to the position. If a properly constituted panel, on the basis of observations by members that constituted it, overwhelmingly scored a candidate either than the applicant higher, that was the decision of the panel and the result it reached was informed by how each of the candidates faired. The applicant needed to show more than merely making the claim that he made, that the panel acted unfairly for me to interfere with the decision taken to appoint Miss Molaodi. And I cannot find the applicant to have achieved that.
 In the premises, I make the following award:
 The respondent’s decision not to appoint the applicant to the position of Departmental Head at Thlohafalo Senior Secondary School did not constitute unfair labour practice.
 The application is accordingly dismissed, and the Council is directed to close the file.