PSES202 -12/13MP
PSES202 -12/13MP
Award Date:
2 May 2013
Case Number: PSES202 -12/13MP
Province: Mpumalanga
Applicant: MJ Mabunda
Respondent: Department of Education, Mpumalanga
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Kanyamazane
Award Date: 2 May 2013
Arbitrator: R de Wet
Commissioner: R de Wet
Case No.: PSES202 -12/13MP Date of Award: 2 May 2013
In the ARBITRATION between:
MJ MABUNDA
(Union / Applicant)
and
DEPARTMENT OF EDUCATION MPUMALANGA
(Respondent)
Union/Applicant’s representative: Mr D Dube ___________________________________
Telephone: 013 751 3461_________________________________
Telefax: 013 751 3461 _________________________________
Respondent’s representative: Mr Nyatsuba__________________________________
Telephone: 013 766 5352_________________________________
Telefax: 086 680 1904_________________________________
DETAILS OF HEARING AND REPRESENTATION:
[1]. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the
“ELRC”) in terms of Section 191(5)(a) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for Arbitration on the 23rd of November 2012, 18th of February 2013 and finalized on the 22nd of April 2013. The hearing was held at the District Offices of the Department of Education in Kanyamazane, Mpumalanga.
[2]. Mr MJ Mabunda, the Applicant (hereinafter referred to as “Mabunda”), was present and was represented by Mr Dube, legal representative, whilst the first and second Respondents were represented by Mr Nyatsuba, from the Labour Relations Division.
[3]. From the outset of the hearing, Mr MJ Khoza (hereinafter referred to as “Khoza”), the successful
candidate was joined as a party to the proceedings, and was present during the proceedings.
ISSUE TO BE DECIDED:
[4]. Whether the Respondent committed an unfair labour practice as envisaged in Section 186(2)(a) of The Act, in failing to promote Mr Mabunda, MJ to the post of: Deputy Principle (Post Level 3) at Masitakhe Secondary School.
[5]. In the event that I find in the affirmative, I must decide upon an appropriate remedy.
FACTUAL BACKGROUND:
[6]. Mabunda commenced his employment with the Respondent on the 1st of January 1985. He is currently employed in the post of Departmental Head (Post Level 2) at Masitakhe Secondary School, the very same school where the post of Deputy Principal was advertised. He is currently on a remuneration package of R243 000-00 per annum.
[7]. The Applicant is of the view that the Respondent committed an unfair labour practice on the 6th of October 2011, in failing to promote him to the position referred to above. For this reason he is seeking an order for the process to be restarted or in the alternative to be compensated.
[8]. The requirements for the post were the following:-
v REQV 15 + management;
v Relevant Management experience – Post level 2;
v Teaching experience of 23 years and above.
[9]. Mabunda met all the requirements of the position and was therefore shortlisted to be interviewed along with four other candidates. The interview was to be held on the 9th of September 2011. Khoza was not part of the candidates that were short listed for this interview. Prior to the interviews communiqué was sent to the five short listed candidates informing them of the postponement of the interview to the 2nd of October 2011. During the interview of the 2nd of October 2011, six candidates were interviews for the post, Khoza being one of them.
[10]. The interview panel recommended Khoza as the first candidate and Mabunda the second.
[11]. At the onset of the hearing, the issues were narrowed and the following issues were identified to be the issues in dispute:-
v Whether Khoza meets the requirements of the position?;
v What was the reason for the postponement of the interview of the 9th of September? and
v Whether the Respondent followed a fair process during the placement of this post?
[12]. At the conclusion of the hearing the parties were afforded the right to present written heads of argument. At the time of this award both parties have forwarded me closing arguments, however the heads of the Respondent was not attached to the e-mail. In an attempt to notify the Respondent an e-mail was addressed to them, but no reply was forthcoming.
SURVEY OF EVIDENCE AND ARGUMENT:
I do not intend to deal with every aspect of the evidence of each witness and will only record the part of the
evidence that I deem necessary for purposes of this determination. I will deal with the evidence of all the
witnesses in the same manner.
Applicant’s version:
[13]. The Applicant relied on his own evidence, in proving his case.
[14]. Mduduza Joseph Mabunda (The Applicant) testified that:-
[15]. He has studied for 7 years and taking all his qualifications into account holds a REQV 16. He also holds a further diploma in Education Management, with 28 years experience in teaching.
[16]. Being aggrieved with the process followed, he lodged a formal grievance. On the 20th of February 2012 he learned of the appointment of Khoza, although, at that point, he was not yet favored with a response.
[17]. In the absence of any response to his grievance, he decided to address his complaint to the Public Protector. It was only after that he was granted an audience with the Department but despite such no explanation was given as to the postponement of the hearing and or the inclusion of Khoza.
Respondent’s version:
[18]. The Respondent called three witnesses, in proving its case.
[19]. Mfukwa John Khoza (Second Respondent) testified that:-
[20]. He responded to the advertisement of the Deputy Principal position. He however realized, that despite the fact that he met all the requirements of the post that he was not short listed. In response he lodged a grievance which resulted in the postponement of the interviews. Ultimately he was informed that he would also be interviewed for the position as it was discovered that he was incorrectly ascribed an REQV 14 instead of REQV 15.
[21]. As for his formal qualifications he testified that he holds a secondary teachers diploma, a further diploma in education, and an advanced certificate in education. According to him the three together causes him to meet the requirement of a REQV15.
[22]. Zwerisha Joseph Shabangu (Human Resources) testified that:
[23]. He is involved in the recruitment process that starts with the receipt of the applications. The sifting process entails an evaluation of the applications to establish which candidates meet the requirements. All the applications are then captured for recording purposes before a schedule is drafted to be served on the relevant circuits for further evaluation.
[24]. Mistakes are not uncommon during this process, and therefore regular check-ups are performed. It may also happen that complaints or enquiries are received. Should they discover mistakes rectification would follow and the relevant persons would be informed accordingly.
[25]. In this instance they discovered that mistakes were made insofar the qualifications of the candidates were concerned. He drafted a letter to the Deputy Director: Labour Relations (Bundle “C” Page 9) setting out the candidates involved and the correct information. Khoza was one of the candidates where mistakes regarding their qualifications were discovered.
[26]. Simon Swenkeny Sambo (HR Officer in employment section) testified that:-
[27]. He explained that REQV stands for Relevant Educational Qualification Value. Amongst others, he is responsible to evaluate applications to establish whether they meet the requirements.
[28]. When he was referred to Khoza’s qualifications and explained that he would be ascribed a REQV 15. He elaborated further on that stating that Khoza holds a matric certificate plus a secondary teacher’s certificate that would translate into a REQV 13. He however also holds a further diploma specializing in Maths that would translate into a REQV 14 plus a certificate in school management that would ultimately translate into a REQV15.
[29]. He confirmed that Khoza met the requirements when the evaluation was done in August 2011 and rejected the possibility that his application did not have all relevant documents attached to it.
ANALYSIS OF EVIDENCE AND ARGUMENT:
[30]. I have considered all the evidence and argument placed before me in determining this dispute. I will not necessary deal with all the points but will only refer to the salient points here in under relevant to my decision.
[31]. Jurisdiction to arbitrate promotion disputes are derived from Section 186(2)(a) of The Act, which defines an unfair labour practice with regard to promotion as follows:
“ ‘Unfair Labour Practice’ means any unfair act or omission that arises between and Employer and an Employee involving …unfair conduct by the employer relating to the promotion… of an employee”
[32]. An Employee who alleges that the Respondent committed an unfair labour practice in its failure to promote him to a certain position, bears the onus to prove on a balance or probabilities, that the Respondent acted in a manner unfair toward him. Not only must the Employee prove the existence of the unfair labour practice, if it is disputed, but also that it was unfair.
[33]. The crux of the Applicant’s case is that the process of short listing was seriously compromised when the interviews were postponed in order to accommodate Khoza who was not on the initial short list for the interview of 9 September 2011. Not only did this action offend his rights to fair labour practices, but it also fell outside the provisions of the PAM, in that 6 (six) candidates were ultimately interviewed as opposed to 5 (five). It was argued by the Applicant that had this process not been flaunted, that he would have been recommended and appointed as the successful candidate.
[34]. The Personnel Administrative Measures (PAM) was promulgated by the Minister of Education in
the Government Gazette GN 222 19767 of 18th of February 1999. Clause 3 of Chapter B of the PAM is
of particular importance to promotion issues, in that it sets out the procedural guidelines in
appointments and promotions.
[35]. Clause 3.3 (f) of Chapter B finds application in this dispute and it reads as follows:-
“The Interview Committee may conduct short listing subject to the following guidelines:
i). The criteria used……
iv). The list of shortlisted candidates for interview purposes should not exceed five per
post. (My emphasis).”
[36]. It is common cause that 6 (six) candidates were short listed for the interview of the 2nd of October 2011. The Respondent acknowledges the provisions as set out above, but presented an explanation for the deviation. According to them an honest mistake occurred in the evaluation process (Prior 9 September 2011) that resulted in the exclusion of several candidates including the second Respondent. The error was rectified and the schedule was served on the school whereby it was decided to include Khoza for the interview.
[37]. PAM sets out guidelines to be followed in appointing candidates to positions. Although the Respondent cannot just deviate from such guidelines, the provisions in PAM are not set in cast and stone. The important question to be asked, is whether the action of the Respondent was fair?
[38]. Having considered the reason for the deviation, I am of the view that the actions of the Employer was not deliberate or made in bad faith. The undisputed evidence before me suggests that an honest mistake was made that resulted in the exclusion of Khoza. Upon realizing the mistake, the Respondent corrected it in the only reasonably fair manner to all five short listed candidates as well as Mr Khoza, which is to include Khoza as a candidate in the interview of 2 October 2011.
SUBSTANTIVE FAIRNESS:
[39]. Our legislation does not provide for a right to promotion. Employees nevertheless have a right to fair labour practices, incorporated within that right would also be imbedded the right to be fairly considered for a position.
[40]. In considering whether a promotion, or a failure to promote to a specific position was fair, three basic requirements have to be taken into consideration. The first is the procedure must have been fair, the second there must have been no unfair discrimination, and thirdly the decision must not have been grossly unreasonable (see Arries v CCMA and Others (2006) 27 ILJ 2324 (LC); Minister of Home Affairs v GPSBC (JR 1128/07) ZALC 35 (26 March 2008) par 12.)
[41]. A decision would be considered grossly unreasonable, if it is demonstrated that the Employer has acted irrationally, capriciously or arbitrarily, was actuated by bias, malice or fraud, failed to apply its mind or had exercised his discretion for insubstantial reasons, or based it on any wrong principle (see Arries v CCMA and Others (2006) 27 ILJ 2324 (LC); Minister of Home Affairs v GPSBC (JR 1128/07) ZALC 35 (26 March 2008) par 12; Ndlovu v CCMA & others (2000) 21 ILJ 1653 (LC); Benjamin v University of Cape Town [2003] 12 BLLR 1209 (LC) at 1223-1224).
[42]. The prerogative to promote the best suitable candidate for the position nevertheless rests with the Employer (Public Service Association of SA on behalf of Helberg v Minister of Safety & Security & another (2004) 25 ILJ 2373 (LC) para 12).
[43]. Arbitrators should be reluctant to interfere in promotion disputes but have to show due regard to the
managerial prerogative, unless bad faith or improper motive such as discrimination are present (see George v Liberty Life Association of Africa Ltd (1996) 17 ILJ 571 (IC); PAWC (Department of Health & Social Services) v Bikwani & others(2002) 23 ILJ 761 (LC) 771):-
[44]. In Goliath v Medscheme (Pty) Ltd (1996) 17 ILJ 760 (IC) at 768 referred to with approval in PAWC (Department of Health & Social Services) v Bikwani & others (2002) 23 ILJ 761 (LC) 771 the Court held:-
“Inevitably, in evaluating various potential candidates for a certain position, the management of an organization must exercise a discretion and form an impression of those candidates. Unavoidably this process is not a mechanical or a mathematical one where a given result automatically and objectively flows from the available pieces of information. It is quite possible that the assessment made of the candidates and the resultant appointment will not always be the correct one. However, in the absence of gross unreasonableness which leads the court to draw an inference of mala fides, this court should be hesitant to interfere with the exercise of management's discretion”.
[45]. I accept based on the evidence before me that both the Applicant as well as the Second Respondent
met the requirements of the position. The testimony of Sambo was that Khoza would be deemed to hold a REQV15 when regard is to have to his qualifications. This evidence, although rigorously cross-examined was not rebutted or displaced. It would therefore appear that both Khoza and Mabunda met the requirements for the position. In order for the Applicant to succeed in his claim, he has to prove that the decision of the Employer was “unreasonable”.
[46]. The question for determination is whether the decision by the Respondent to appoint Mr Khoza instead of Mr Mabunda was rational, and whether any unfairness arose out of this decision?
[47]. The Courts have expressed this principle in Jwajwa v Minister of Safety & Security & others, Case No 817 / 01 [2005] JOL 15727 (TK), Goliath v Medscheme (Pty) Ltd(1996) 17 ILJ 760 (IC) at 768 referred to with approval in PAWC (Department of Health & Social Services) v Bikwani & others (2002) 23 ILJ 761 (LC) 771:-
“It is quite possible that the assessment made of the candidates (The Employer) and the resultant appointment will not always be the correct one. However, in the absence of gross unreasonableness which leads the court to draw an inference of mala fides, this court should be hesitant to interfere with the exercise of management's discretion”.
“The Promotion Committee was tasked with assessing all the applications and had to exercise a discretion in selecting the best candidate. A court of review has no jurisdiction to enquire into the correctness of the conclusion arrived at by a body or functionary lawfully vested with a discretion...It will only be entitled to interfere with the decision taken by such a body or functionary if it is shown that it failed to properly apply its mind to the relevant issues and such failure may be shown by proof, inter alia, that the decision was arrived at arbitrarily or capriciously or mala fide, or as a result of unwarranted adherence to a fixed principle, or in order to further an ulterior or improper purpose, or that it misconceived the nature of the discretion conferred, or that the decision was so grossly unreasonable as to warrant the inference that it failed to properly apply its mind to the matter… or if there is such a material misdirection of fact that it is clear that it failed to exercise its discretion.
[48]. The Supreme Court of Appeal confirmed the principle that a court or tribunal should not determine whether an Education Department could have arrived at a better decision in selecting a suitable Educator for appointment to a teaching position, but whether its decision was a reasonable decision (Head, Western Cape Education Department and others v Governing Body, Point High School and others 2008 (5) SA 18 (SCA).
[49]. The Respondent argued that the interview panel considered all the candidates during the interview and found Mr Khoza to be the most suitable candidate and Mr Mabunda the second preferred candidate. The decision was ultimately taken by the Employer to accept the Panel’s recommendation and to promote Mr Khoza to the post.
[50]. No evidence was presented to me during this arbitration to conclude that the decision was unreasonable, or that the Employer acted in bad faith such as discriminating against the Applicant.
AWARD:
[51]. In the light of the above, I find that the Respondent did not subject the Applicant to an unfair labour practice by not promoting him to the position of Deputy Principle post level 3.
[52]. The matter is dismissed.
[53]. No order as to costs is made
Commissioner : R de Wet
Date : 2 May 2013
Province: Mpumalanga
Applicant: MJ Mabunda
Respondent: Department of Education, Mpumalanga
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Kanyamazane
Award Date: 2 May 2013
Arbitrator: R de Wet
Commissioner: R de Wet
Case No.: PSES202 -12/13MP Date of Award: 2 May 2013
In the ARBITRATION between:
MJ MABUNDA
(Union / Applicant)
and
DEPARTMENT OF EDUCATION MPUMALANGA
(Respondent)
Union/Applicant’s representative: Mr D Dube ___________________________________
Telephone: 013 751 3461_________________________________
Telefax: 013 751 3461 _________________________________
Respondent’s representative: Mr Nyatsuba__________________________________
Telephone: 013 766 5352_________________________________
Telefax: 086 680 1904_________________________________
DETAILS OF HEARING AND REPRESENTATION:
[1]. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the
“ELRC”) in terms of Section 191(5)(a) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for Arbitration on the 23rd of November 2012, 18th of February 2013 and finalized on the 22nd of April 2013. The hearing was held at the District Offices of the Department of Education in Kanyamazane, Mpumalanga.
[2]. Mr MJ Mabunda, the Applicant (hereinafter referred to as “Mabunda”), was present and was represented by Mr Dube, legal representative, whilst the first and second Respondents were represented by Mr Nyatsuba, from the Labour Relations Division.
[3]. From the outset of the hearing, Mr MJ Khoza (hereinafter referred to as “Khoza”), the successful
candidate was joined as a party to the proceedings, and was present during the proceedings.
ISSUE TO BE DECIDED:
[4]. Whether the Respondent committed an unfair labour practice as envisaged in Section 186(2)(a) of The Act, in failing to promote Mr Mabunda, MJ to the post of: Deputy Principle (Post Level 3) at Masitakhe Secondary School.
[5]. In the event that I find in the affirmative, I must decide upon an appropriate remedy.
FACTUAL BACKGROUND:
[6]. Mabunda commenced his employment with the Respondent on the 1st of January 1985. He is currently employed in the post of Departmental Head (Post Level 2) at Masitakhe Secondary School, the very same school where the post of Deputy Principal was advertised. He is currently on a remuneration package of R243 000-00 per annum.
[7]. The Applicant is of the view that the Respondent committed an unfair labour practice on the 6th of October 2011, in failing to promote him to the position referred to above. For this reason he is seeking an order for the process to be restarted or in the alternative to be compensated.
[8]. The requirements for the post were the following:-
v REQV 15 + management;
v Relevant Management experience – Post level 2;
v Teaching experience of 23 years and above.
[9]. Mabunda met all the requirements of the position and was therefore shortlisted to be interviewed along with four other candidates. The interview was to be held on the 9th of September 2011. Khoza was not part of the candidates that were short listed for this interview. Prior to the interviews communiqué was sent to the five short listed candidates informing them of the postponement of the interview to the 2nd of October 2011. During the interview of the 2nd of October 2011, six candidates were interviews for the post, Khoza being one of them.
[10]. The interview panel recommended Khoza as the first candidate and Mabunda the second.
[11]. At the onset of the hearing, the issues were narrowed and the following issues were identified to be the issues in dispute:-
v Whether Khoza meets the requirements of the position?;
v What was the reason for the postponement of the interview of the 9th of September? and
v Whether the Respondent followed a fair process during the placement of this post?
[12]. At the conclusion of the hearing the parties were afforded the right to present written heads of argument. At the time of this award both parties have forwarded me closing arguments, however the heads of the Respondent was not attached to the e-mail. In an attempt to notify the Respondent an e-mail was addressed to them, but no reply was forthcoming.
SURVEY OF EVIDENCE AND ARGUMENT:
I do not intend to deal with every aspect of the evidence of each witness and will only record the part of the
evidence that I deem necessary for purposes of this determination. I will deal with the evidence of all the
witnesses in the same manner.
Applicant’s version:
[13]. The Applicant relied on his own evidence, in proving his case.
[14]. Mduduza Joseph Mabunda (The Applicant) testified that:-
[15]. He has studied for 7 years and taking all his qualifications into account holds a REQV 16. He also holds a further diploma in Education Management, with 28 years experience in teaching.
[16]. Being aggrieved with the process followed, he lodged a formal grievance. On the 20th of February 2012 he learned of the appointment of Khoza, although, at that point, he was not yet favored with a response.
[17]. In the absence of any response to his grievance, he decided to address his complaint to the Public Protector. It was only after that he was granted an audience with the Department but despite such no explanation was given as to the postponement of the hearing and or the inclusion of Khoza.
Respondent’s version:
[18]. The Respondent called three witnesses, in proving its case.
[19]. Mfukwa John Khoza (Second Respondent) testified that:-
[20]. He responded to the advertisement of the Deputy Principal position. He however realized, that despite the fact that he met all the requirements of the post that he was not short listed. In response he lodged a grievance which resulted in the postponement of the interviews. Ultimately he was informed that he would also be interviewed for the position as it was discovered that he was incorrectly ascribed an REQV 14 instead of REQV 15.
[21]. As for his formal qualifications he testified that he holds a secondary teachers diploma, a further diploma in education, and an advanced certificate in education. According to him the three together causes him to meet the requirement of a REQV15.
[22]. Zwerisha Joseph Shabangu (Human Resources) testified that:
[23]. He is involved in the recruitment process that starts with the receipt of the applications. The sifting process entails an evaluation of the applications to establish which candidates meet the requirements. All the applications are then captured for recording purposes before a schedule is drafted to be served on the relevant circuits for further evaluation.
[24]. Mistakes are not uncommon during this process, and therefore regular check-ups are performed. It may also happen that complaints or enquiries are received. Should they discover mistakes rectification would follow and the relevant persons would be informed accordingly.
[25]. In this instance they discovered that mistakes were made insofar the qualifications of the candidates were concerned. He drafted a letter to the Deputy Director: Labour Relations (Bundle “C” Page 9) setting out the candidates involved and the correct information. Khoza was one of the candidates where mistakes regarding their qualifications were discovered.
[26]. Simon Swenkeny Sambo (HR Officer in employment section) testified that:-
[27]. He explained that REQV stands for Relevant Educational Qualification Value. Amongst others, he is responsible to evaluate applications to establish whether they meet the requirements.
[28]. When he was referred to Khoza’s qualifications and explained that he would be ascribed a REQV 15. He elaborated further on that stating that Khoza holds a matric certificate plus a secondary teacher’s certificate that would translate into a REQV 13. He however also holds a further diploma specializing in Maths that would translate into a REQV 14 plus a certificate in school management that would ultimately translate into a REQV15.
[29]. He confirmed that Khoza met the requirements when the evaluation was done in August 2011 and rejected the possibility that his application did not have all relevant documents attached to it.
ANALYSIS OF EVIDENCE AND ARGUMENT:
[30]. I have considered all the evidence and argument placed before me in determining this dispute. I will not necessary deal with all the points but will only refer to the salient points here in under relevant to my decision.
[31]. Jurisdiction to arbitrate promotion disputes are derived from Section 186(2)(a) of The Act, which defines an unfair labour practice with regard to promotion as follows:
“ ‘Unfair Labour Practice’ means any unfair act or omission that arises between and Employer and an Employee involving …unfair conduct by the employer relating to the promotion… of an employee”
[32]. An Employee who alleges that the Respondent committed an unfair labour practice in its failure to promote him to a certain position, bears the onus to prove on a balance or probabilities, that the Respondent acted in a manner unfair toward him. Not only must the Employee prove the existence of the unfair labour practice, if it is disputed, but also that it was unfair.
[33]. The crux of the Applicant’s case is that the process of short listing was seriously compromised when the interviews were postponed in order to accommodate Khoza who was not on the initial short list for the interview of 9 September 2011. Not only did this action offend his rights to fair labour practices, but it also fell outside the provisions of the PAM, in that 6 (six) candidates were ultimately interviewed as opposed to 5 (five). It was argued by the Applicant that had this process not been flaunted, that he would have been recommended and appointed as the successful candidate.
[34]. The Personnel Administrative Measures (PAM) was promulgated by the Minister of Education in
the Government Gazette GN 222 19767 of 18th of February 1999. Clause 3 of Chapter B of the PAM is
of particular importance to promotion issues, in that it sets out the procedural guidelines in
appointments and promotions.
[35]. Clause 3.3 (f) of Chapter B finds application in this dispute and it reads as follows:-
“The Interview Committee may conduct short listing subject to the following guidelines:
i). The criteria used……
iv). The list of shortlisted candidates for interview purposes should not exceed five per
post. (My emphasis).”
[36]. It is common cause that 6 (six) candidates were short listed for the interview of the 2nd of October 2011. The Respondent acknowledges the provisions as set out above, but presented an explanation for the deviation. According to them an honest mistake occurred in the evaluation process (Prior 9 September 2011) that resulted in the exclusion of several candidates including the second Respondent. The error was rectified and the schedule was served on the school whereby it was decided to include Khoza for the interview.
[37]. PAM sets out guidelines to be followed in appointing candidates to positions. Although the Respondent cannot just deviate from such guidelines, the provisions in PAM are not set in cast and stone. The important question to be asked, is whether the action of the Respondent was fair?
[38]. Having considered the reason for the deviation, I am of the view that the actions of the Employer was not deliberate or made in bad faith. The undisputed evidence before me suggests that an honest mistake was made that resulted in the exclusion of Khoza. Upon realizing the mistake, the Respondent corrected it in the only reasonably fair manner to all five short listed candidates as well as Mr Khoza, which is to include Khoza as a candidate in the interview of 2 October 2011.
SUBSTANTIVE FAIRNESS:
[39]. Our legislation does not provide for a right to promotion. Employees nevertheless have a right to fair labour practices, incorporated within that right would also be imbedded the right to be fairly considered for a position.
[40]. In considering whether a promotion, or a failure to promote to a specific position was fair, three basic requirements have to be taken into consideration. The first is the procedure must have been fair, the second there must have been no unfair discrimination, and thirdly the decision must not have been grossly unreasonable (see Arries v CCMA and Others (2006) 27 ILJ 2324 (LC); Minister of Home Affairs v GPSBC (JR 1128/07) ZALC 35 (26 March 2008) par 12.)
[41]. A decision would be considered grossly unreasonable, if it is demonstrated that the Employer has acted irrationally, capriciously or arbitrarily, was actuated by bias, malice or fraud, failed to apply its mind or had exercised his discretion for insubstantial reasons, or based it on any wrong principle (see Arries v CCMA and Others (2006) 27 ILJ 2324 (LC); Minister of Home Affairs v GPSBC (JR 1128/07) ZALC 35 (26 March 2008) par 12; Ndlovu v CCMA & others (2000) 21 ILJ 1653 (LC); Benjamin v University of Cape Town [2003] 12 BLLR 1209 (LC) at 1223-1224).
[42]. The prerogative to promote the best suitable candidate for the position nevertheless rests with the Employer (Public Service Association of SA on behalf of Helberg v Minister of Safety & Security & another (2004) 25 ILJ 2373 (LC) para 12).
[43]. Arbitrators should be reluctant to interfere in promotion disputes but have to show due regard to the
managerial prerogative, unless bad faith or improper motive such as discrimination are present (see George v Liberty Life Association of Africa Ltd (1996) 17 ILJ 571 (IC); PAWC (Department of Health & Social Services) v Bikwani & others(2002) 23 ILJ 761 (LC) 771):-
[44]. In Goliath v Medscheme (Pty) Ltd (1996) 17 ILJ 760 (IC) at 768 referred to with approval in PAWC (Department of Health & Social Services) v Bikwani & others (2002) 23 ILJ 761 (LC) 771 the Court held:-
“Inevitably, in evaluating various potential candidates for a certain position, the management of an organization must exercise a discretion and form an impression of those candidates. Unavoidably this process is not a mechanical or a mathematical one where a given result automatically and objectively flows from the available pieces of information. It is quite possible that the assessment made of the candidates and the resultant appointment will not always be the correct one. However, in the absence of gross unreasonableness which leads the court to draw an inference of mala fides, this court should be hesitant to interfere with the exercise of management's discretion”.
[45]. I accept based on the evidence before me that both the Applicant as well as the Second Respondent
met the requirements of the position. The testimony of Sambo was that Khoza would be deemed to hold a REQV15 when regard is to have to his qualifications. This evidence, although rigorously cross-examined was not rebutted or displaced. It would therefore appear that both Khoza and Mabunda met the requirements for the position. In order for the Applicant to succeed in his claim, he has to prove that the decision of the Employer was “unreasonable”.
[46]. The question for determination is whether the decision by the Respondent to appoint Mr Khoza instead of Mr Mabunda was rational, and whether any unfairness arose out of this decision?
[47]. The Courts have expressed this principle in Jwajwa v Minister of Safety & Security & others, Case No 817 / 01 [2005] JOL 15727 (TK), Goliath v Medscheme (Pty) Ltd(1996) 17 ILJ 760 (IC) at 768 referred to with approval in PAWC (Department of Health & Social Services) v Bikwani & others (2002) 23 ILJ 761 (LC) 771:-
“It is quite possible that the assessment made of the candidates (The Employer) and the resultant appointment will not always be the correct one. However, in the absence of gross unreasonableness which leads the court to draw an inference of mala fides, this court should be hesitant to interfere with the exercise of management's discretion”.
“The Promotion Committee was tasked with assessing all the applications and had to exercise a discretion in selecting the best candidate. A court of review has no jurisdiction to enquire into the correctness of the conclusion arrived at by a body or functionary lawfully vested with a discretion...It will only be entitled to interfere with the decision taken by such a body or functionary if it is shown that it failed to properly apply its mind to the relevant issues and such failure may be shown by proof, inter alia, that the decision was arrived at arbitrarily or capriciously or mala fide, or as a result of unwarranted adherence to a fixed principle, or in order to further an ulterior or improper purpose, or that it misconceived the nature of the discretion conferred, or that the decision was so grossly unreasonable as to warrant the inference that it failed to properly apply its mind to the matter… or if there is such a material misdirection of fact that it is clear that it failed to exercise its discretion.
[48]. The Supreme Court of Appeal confirmed the principle that a court or tribunal should not determine whether an Education Department could have arrived at a better decision in selecting a suitable Educator for appointment to a teaching position, but whether its decision was a reasonable decision (Head, Western Cape Education Department and others v Governing Body, Point High School and others 2008 (5) SA 18 (SCA).
[49]. The Respondent argued that the interview panel considered all the candidates during the interview and found Mr Khoza to be the most suitable candidate and Mr Mabunda the second preferred candidate. The decision was ultimately taken by the Employer to accept the Panel’s recommendation and to promote Mr Khoza to the post.
[50]. No evidence was presented to me during this arbitration to conclude that the decision was unreasonable, or that the Employer acted in bad faith such as discriminating against the Applicant.
AWARD:
[51]. In the light of the above, I find that the Respondent did not subject the Applicant to an unfair labour practice by not promoting him to the position of Deputy Principle post level 3.
[52]. The matter is dismissed.
[53]. No order as to costs is made
Commissioner : R de Wet
Date : 2 May 2013