Award  Date:
25 March 2020
Case Number: PSES430-19/20KZN
Province: KwaZulu-Natal
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Amajuba TVET College, New Castle.
Award Date: 25 March 2020
Arbitrator: Humphrey Ndaba




Case Number: PSES430-19/20KZN
Date of Hearing: 15th November 2019 & 09th March 2020
Closing Argument submitted: 19th March 2020
Date of award: 25h March 2020
ELRC Arbitrator: Humphrey Ndaba

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Details of hearing and representative
1. This matter was arbitrated on the 15th November 2019 and 09th March 2020 at Amajuba TVET College, New Castle.
2. Applicant testified on his own and called Steward Roderick as a witness and respondent called Khanyelihle Shangase as a witness.
3. Both parties were given 7 days to submit their closing argument.
Background to the dispute
4. In January 2019 respondent advertised an internal vacancy which closed on the 25th January 2019. Applicant applied and was shortlisted.
5. At the interview, he scored the highest i.e. 68%. The interviews were put on hold and no one was appointed.
6. On the 15th April 2019, a similar internal vacancy was advertised. Applicant applied. In regard to the second advert and everything was put on hold pending the outcome of the matter applicant referred to the council.
Issue in dispute
7. The applicant referred a dispute relating to section 186(2) (a) of the LRA which relates to unfair conduct pertaining to promotion and or benefits. Applicant alleges that respondent advertised the post using the wrong criteria and failed to shortlist him. Applicant previously applied for the post of Acting Senior Education Specialist- Trade Test .He was short listed and recommended, however the post was withdrawn and re advertised by Majuba TVET College.
Survey of evidence and argument
Pieter Sonnekus (Applicant)
8. Applicant testified that he has an N4 in Trade and Instrumental Mechanic. He qualified in 1984 as an Artisan (ETDP). He has been teaching for nine years.
9. The position he applied for requires a specialist with trade test qualification.
10. He was shortlisted and interviewed at the first interview despite not having a Professional Educational Qualification.
11. After the re-advertisement, he applied and was not shortlisted. He was told he does not have a Professional Educational Qualification.
12. He wants to be shortlisted and interviewed. He has an IDQP 13 qualification.
Steward Roderick (Applicant’s witness)
13. Roderick testified that he was the head of Mechanical Department at New Castle Training Centre.
14. He was appointed in 2000 at the Training Centre as a Training Officer.
15. He has an Engineering Diploma, N3 and a Trade Test. He does not have a teachers’ qualification but is at level 2
16. Mike Wilson and Piet Botha also do not have Education Qualifications but they are at Post Level 2.
Khayelihle Shangase (Respondent’s witness)
17. Shangase testified that he was a Deputy Principal Corporate Services. He was in charge of Human Resources, Administration and Development.
18. He categorized qualifications as follows: RQV 10 was a 1-year qualification, RQV 12 a 2-year qualification, RQV 13 a 3-year qualification and RQV 14 a
4-year qualification.
19. Applicant has an RQV13 special which is not a full RQV 13.
20. The advert requires an N3, trade certificate and a full RQV 13.
21. In regard to the second advert no shortlisting was done. The matter is still on hold .After the applicant was recommended, during verification by human resources, it was found that the applicant did not have a full professional teaching qualification and or three year engineering qualification REQV 13 (three year tertiary qualification).
Analysis of evidence and argument
Case law
22. In Aries v CCMA & others (2006) 27 ILJ 2324 (LC) the court held that there are limited grounds on which an arbitrator may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The arbitrator should interfere only to the extent it can be demonstrated that the discretion was not properly exercised.
23. In this matter, the shortlisting was put on hold. No one has been shortlisted! It follows then that the referral is premature.
24. Applicant needs to wait until the process is resumed and see whether he will be shortlisted or not. A Panelist does not have the power to issue a mandamus to compel the respondent to proceed with a short listing process.
25. The Respondent has not committed an unfair labour practice in terms of section 186(2) (a) of the LRA. The dispute referral is dismissed.
26. There is no order as to costs.
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