Case Number: ELRC 865-19/20 WC
Province: Western Cape
Applicant: Naptosa obo A Ahmed
Respondent: Department of Education Western Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 22 September 2020
Arbitrator: Adv.Terry Malgas-Senye
Panelist/s: Adv.Terry Malgas-Senye
Case No.: ELRC 865-19/20 WC
Date of Award: 22 September 2020
In the ARBITRATION between:
Naptosa obo A Ahmed
Department of Education
Union/Applicant’s representative: NAPTOSA
Union/Applicant’s address: Western Cape
Respondent’s representative: Ms.Randall
Respondent’s address: Department of Education
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing in this unfair labour practice dispute in terms of Section 186(2)(a) of the Labour Relations took place on 9-11 September 2020 Virtual Hearing. The Applicant is Mr.A.Ahmed an employee and educator currently stationed at a Deputy Principal at Spes Bona High School, represented by Mr.Segebi from NAPTOSA. The Respondent is the Department of Education in Western Cape and were represented by Ms.Randall. The parties agreed to submit their closing arguments in writing by not later than 18 September 2020.
ISSUE TO BE DECIDED
2. The Applicant referred an unfair labour practice dispute relating to promotion.
3. During 2020 the Applicant lodged a dispute against the filling of post no. 212 of VL 1/2019, Principal Post at Spes Bona High School. He applied for the said post and was interviewed but was not recommended or appointed for the post. The second Respondent, Mr Links was recommended and appointed in the post.
4. I have to determine whether any unfair labour practice relating to promotion was committed, and if so, the appropriate relief.
BACKGROUND TO THE ISSUE
5. The Applicant is currently a Deputy Principal at Spes Bona High School. During 2019 he applied for a position. He was shortlisted for the positions and also interviewed.
6. It is common cause that the Applicant was short listed, interviewed but not recommended as the number one candidate for the post, after having scored the highest rating in the interview. The 2nd highest scoring candidate, Mr.Links was recommended for post number post no. 212 of VL 1/2019. The Respondent rationale behind the appointment of Mr.Links was that the SGB unanimously supported the appointment of Mr.Links.
7. The Applicant is challenging the substantive unfair promotion.
SURVEY OF EVIDENCE AND ARGUMENT
8. The parties handed up two bundles of documents (Bundles "A "and "B"). Here follows a very brief outline of the parties’ respective cases. I do not intend to traverse the evidence in detail. Evidence not specifically mentioned was also taken into account in reaching my findings.
9. The Applicant testified that he was more suitably qualified due to the fact that he scored higher during the interview. Secondly, he has been in the Acting Principal position for a period of 2 years. He testified that he felt that as a Deputy Principal, he should have been appointed as he had far for experience in Acting as Principal than the second Respondent.
10. The Applicant submit that he was the best candidate of this position, and submitted that he wanted justice in that this position be re advertised. The Applicant further submit that the SGB as well as the Interview Committee (IC) assassinated his character. He was further of the view that the IC made their decision not to appoint him based on the CBA (Psychological Assessment) feedback.
Mrs. Anne Van Zyl
11. She is a coach at the Principal’s Academy. She testified that she is training and supporting the academy and supported the Applicant. She testified that she was not at the school on a daily basis to be able to testify as to how the school was being managed. She testified that she would visit the school every two weeks. The witness testified that she was surprised when the Applicant was not appointed.
12. He was the Caretaker Principal at the school prior to the Applicant being appointed as Deputy Principal. He testified that he only worked with the Applicant for 3 months prior to him retiring.
13. The Respondent submits that the Applicant was interviewed and not appointed in this position.
Mr. Shayna Cleophas , Mr. Paul Petersen
14. Both witnesses testified that the Applicant was not discriminated in terms of his age. If age was a determining factor, then the same argument could have been used for the second Respondent as he is two years younger than the Applicant.
15. The witnesses testified that the SGB took an unanimous decision on consensus to appoint only one candidate. The Departmental representatives that was part of the interview process as well as the CBA meeting and feedback and ratification processes all witnesses testified that the entire process was conducted fairly.
16. They submitted that the SGB Chairperson who was involved in the interview as well as the ratification process testified that the panel did not use the CBA as a determining factor when deciding on nominating only one candidate.
17. The witnesses testified that the panel felt that the Applicant was not suitable to be appointed in the post. They submitted that the Department is of the view that the members of the interview panel as well as the members of the SGB who was involved in the processes would be in the best position to provide an opinion on what would be in the best interest of the school as they are at the school on a daily basis
18. Furthermore, the IC and SGB consist of parents, educators as well as a learner component.
Mr. Frederick Adonis
19. The SGB Chairperson testified that he has nothing against the Applicant and that he respects him as the Deputy Principal but that he as well as the rest of the SGB took a decision in the best interest of the school and that it was nothing personal against the Applicant.
20. He further testified that despite the fact that the second Respondent is currently at home due to Comorbidities, he is still doing an effective job running the school from home. He testified that they look up to him as the father figure and under his leadership and guidance the school is running smoothly.
21. Mr Wyngaard testified to the fact that the Head of Education confirmed the nomination of the SGB. He further testified that when the nomination for the appointment reached the Department, he personally went through all the documentation to ensure that all the processes were followed correctly and further indicated that the SGB was allowed to nominate one candidate, provided that they motivated as to their reasons.
22. He further testified that the SGB did a thorough motivation and based on this, the Head of Education did not deviate from their recommendation. He further confirmed as per the Collective Agreement Number 3 of 2018, point 44 in the Combined Bundle that, “The Head of Education as employer must place significant weight on the recommendation of the school governing body who has interviewed the candidates”. Further, the witness confirmed as per point 46 of the same Collective Agreement, that “The mere fact that an employee is already acting in the post, does not give him or her an automatic right to a promotion when the position becomes available”. This is further confirmed in Chapter B of the PAM.
23. He testified that there exists no legislation or guideline that suggests that a candidate who has acted in a post should be appointed in the post. The reason why the Applicant acted for the period that he did was because he is the Deputy Principal. The fact that he had acted in the post can therefore not be used to validate any expectations to be promoted/appointed in the post.
24. He submitted that when a candidate is shortlisted, interviewed and nominated, the right to appoint any candidate rests with the Employer and can therefore not be used to validate any expectations to be promoted/appointed in the post until the Employer has given written indication that they wish to appoint the candidate.
25. Under cross examination, the witness stood there grounds and explained that the incumbent Mr.Links was appointed.
26. The Respondent prayed that the application be dismissed.
27. While I have considered all the evidence and arguments, I decided that for the sake of brevity, I will not summarise the evidence and arguments here in detail. I will refer in more detail to those aspects of the evidence and arguments where necessary during my evaluation of the evidence and arguments. The same applies to the exhibits that were handed in.
28. Foremost I deem it prudent to list a few principles that are applicable to disputes of this nature. An Applicant who alleges that an employer committed an unfair labour practice related to promotion bears the onus to prove that had it not been for an unfair act or omission on the part of the employer, s/he would have been appointed to the higher contested position. In Head of Western Cape Education Department & others v Governing Body of the Point High School & others (584/07)  SCA 48 the Supreme Court of Appeal held that an employer “... is required to act reasonably and, by taking into account all the relevant factors and considering the competing interests involved, to arrive at a decision which strikes a reasonable equilibrium. The court has no power to review this decision purely because there may be another, perhaps better equilibrium...”
29. In SAMWU obo Damon v Cape Metropolitan Council [1999) 3 BALR 255 (CCMA) the arbitrator stated that an employer’s decision should not be interfered with unless there’s proof that the employer acted in bad faith or with malice. This notion was confirmed in Dlamini v Toyota SA Manufacturing  25 ILJ1513 [CCMA]. It should also be highlighted that it is trite law that an employer has the prerogative to appoint whom it considers to be the most suitable candidate, and not necessarily the candidate with the better qualifications or the most experience.
30. It is of paramount importance to note that this tribunal derives its jurisdiction to arbitrate promotion disputes from section 186(2)(a) of the Labour Relations Act No 66 of 1995 , which reads as follows:
‘Unfair Labour Practice’ means any unfair act or omission that arises between an employer and an employee involving …unfair conduct by the employer relating to the promotion… of an employee”
31. An employee who alleges that he is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair. What is fair depends upon the circumstances of a particular case and essentially involves a value judgement.
32. Promotions fall within the managerial prerogative and it is important to understand that for that reason, arbitrators are not required to determine whether the employer has made the correct decision and has appointed the best candidate, but merely to determine whether the employer has acted fairly and has made a reasonable decision. These principles are well established and have been confirmed repeatedly by our Courts.
33. 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.
34. Therefore, an arbitrator may only interfere with the employer’s decision if the employee proves that the employer, in not appointing him and appointing another candidate, acted in a manner which would ordinarily permit a court of law to interfere with the decisions of a functionary on review. This the employee could do by inter alia proving that the employer had acted irrationally, grossly unreasonable, capriciously or arbitrarily, was actuated by bias, malice or fraud, or unfairly discriminated.
35. The Applicant is clearly of the view that he is the best candidate for the position. This is evident when he was the number on candidate on his scoring only. He accordingly asked for the post to be re-advertised on his percentage.
36. The Applicant submitted that his character was tarnished during the interviews.
37. Therefore, it is important to note that, an Applicant in a promotion dispute also needs to establish a causal connection between the irregularity or unfairness and the failure to promote. To do that he needs to show that, but for the irregularity or unfairness, he would have been appointed to the post or the post be re advertised.
38. This necessarily means that he must show that not only was he better qualified and suited for the post than the successful candidate who was appointed, but also that he was the best of all the candidates who applied for the position. It would however appear that this strict approach is only followed in respect of substantive unfairness and relief and that in respect of procedural unfairness and compensation for procedural unfairness, this strict approach and causal connection is not required.
39. In conclusion, when considering all the information before me containing the results of the interviews, I am simply satisfied that Applicant has not proven that he was necessarily better equipped for the position than the incumbent. The scoring between the parties is only 2 percent.
40. The Applicant did not proved substantive unfairness and substantive relief such as appointment to the post can therefore not be awarded.
41. I accept that the Respondent did not unfairly and in malice overlooked the Applicant for this position.
42. Furthermore, unless substantive unfairness has been proven in an unfair labour practice dispute, substantive relief is never competent or appropriate relief. I am accordingly not permitted to appoint Applicant to the position or grant any form of other substantive relief.
43. I am accordingly not permitted to appoint Applicant to the position or grant any form of other substantive relief. In fact, during closing arguments Mr. Ahmed conceded that he accepts that it would be difficult for him to persuade me to appoint Applicant to the post as it has already been filled. He requested and prayed that the post be re advertised.
44. Furthermore, it is evident from the facts that the Applicant met the minimum requirement of the post. The Applicant conceded under cross-examination that the incumbent, Ms Links, was best suited for the position.
45. The Applicant could not establish any unreasonableness in the conduct of the Respondent except the perception/believe that he should have been appointed as he acted in the position for 2 years.
46. I believe the requirement set to conduct screening was not prejudicial to the Applicant. The Respondent had a discretion to exercise and believe that such was conducted within the required prescripts. On this basis, I find that the Applicant has failed to discharge the onus on balance of probability that the conduct of the Respondent amounts to unfair labour: practice relating to promotion.
47. I am therefore satisfied that the Respondent appointed the incumbent correctly and substantively fair.
48. In the premise I render the following award;
49. There was no unfair labour practice committed by the Respondent, Western Cape Department of Education when not promoting the Applicant, Mr A. Ahmed.
50. The Application is dismissed.
ELRC Panelist: Adv. Theresa Malgas-Senye