Case Number: PSES 761-19/20 KZN
Applicant: Cynthia Maphanga
Respondent: 1st Respondent Department of Education & 2nd Respondent Sibusiso Ralarala
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 1 October 2020
Arbitrator: J.D. Vedan
Arbitrator: J.D. Vedan
Case Reference No.: PSES 761-19/20 KZN
Date of hearing: 1 October 2020
In the arbitration between:
Cynthia Maphanga Applicant/Employee party
Department of Education – KZN First Respondent/Employer party
Sibusiso Ralaral Second Respondent/Joinder party
Applicants’ representative: N E Ngcobo
Tel: 082 731 8694
First Respondent’s representative: S T Daniso
Tel: 033-355 2237 / 071 957 1986
Second Respondent’s representative: Mr Mabida
DETAILS OF HEARING AND REPRESENTATION:
1. The matter was held via a Zoom meeting on 1 October 2020 at 9:00 am.
2. The Applicant was represented by N. E. Ngcobo, an Union Official.
3. The First Respondent was represented by S.T. Daniso, its representative.
4. The Second Respondent was represented by Mr Mabida, an Union Official.
5. The parties were to submit written closing arguments by 8 October 2019, with the award being due on 16 October 2020. However an extension of time was requested by the parties in which to submit their written closing arguments. The extension of time was granted by the ELRC, with the award then being due on 23 October 2020
6. The dispute referred relates to the unfair promotion of the Second Respondent due to him not having met the requirements for the post.
BACKGROUND TO THE DISPUTE AND SURVEY OF SUBMISSIONS:
7. The Applicant is an educator at Mpophomeni High School at which the Second Respondent was appointed as the Deputy Principal. The Applicant also applied for the post in question.
8. The Applicant alleged that the Second Respondent did not meet the minimum requirement of experience for the post, which was set at five years. She claimed that he had four years and eleven months of experience, which is a month short of meeting the requirement.
9. The Respondents contended that the Second Respondent did, in fact, have the necessary experience, and provided evidence in the form of timesheets to that effect.
10. The Respondents were of the view that the Applicant’s case was baseless, and therefore no case existed to be met. A bundle of documents was submitted, as a common bundle, to be referred to by both parties during the proceedings.
11. The issue at hand is whether the full five years’ experience was achieved. Four years and eleven months of experience was not queried. Only one month of experience was queried, and the Second Respondent stated that for that one month he worked at Nansindlela High School on a School Governing Body post. He worked there from January 2014 to February 2014, and he taught grades 11 and 12.
12. The Applicant merely stated that she had received information about the fact that the Second Respondent did not have the necessary experience from a source, whom she did not want to name, and was not calling as a witness.
ISSUE TO BE DECIDED:
13. Whether the First Respondent committed an unfair labour practice against the Applicant in terms of promotion in accordance with Section 186(2)(a) of the LRA?
APPLICANT’S EVIDENCE AND ARGUMENT:
14. The Applicant testified that she had applied for the post in question, and had progressed to the interview stage. However she was not recommended for the post.
15. She stated that she did not know who had been appointed to the post until the Second Respondent arrived at school. She initially had no issues with the appointment.
16. According to the Applicant, a reliable source informed her, at a later date, that the Second Respondent did not possess the required years of experience for the post. She did not reveal the name of the reliable source. She stated that the reliable source advised her that they had been appointed at the same time as the Second Respondent, and therefore knew that he did not possess the necessary experience.
17. The Applicant thereafter began investigating the allegation posed by her reliable source. She stated that she consulted HRM 70 of 2018, and approached her Union for assistance. She stated that the results of her investigation yielded proof that the Second Respondent did not meet the minimum requirement of experience for the post.
18. The Applicant stated that she consulted with her Union, and was advised that she should refer a dispute.
19. She stated that she wished to find the truth regarding the Second Respondent’s experience. She is convinced that he does not have the necessary experience. She alleged that the Second Respondent was “months short” of meeting the requirement.
20. She further stated that she was not bitter, and that she is just seeking clarity.
21. With regard to the proof submitted by the Second Respondent, the Applicant stated that she is not convinced of it, and therefore requires further proof.
22. The Applicant’s representative stated that hearsay evidence is still evidence, despite carrying less weight.
RESPONDENTS’ EVIDENCE AND ARGUMENTS:
23. The First Respondent and Second Respondent indicated that they would reply on the cross-examination of the Applicant to substantiate their case. The documents were presented to the Applicant, and she was cross-examined on same.
24. The representative for the First Respondent stated that he does not believe that he needs to call any witness, as the Applicant has no case. He therefore asked for the case to be dismissed, as there was no case to be met.
25. The Second Respondent abided by the First Respondent’s statement.
26. The First Respondent stated that the bundle of documents submitted would be a common bundle, and that the Applicant is relying only on hearsay evidence. Therefore there is no need for the Respondents to call witnesses.
27. The Respondents maintained that there was no case to be met.
ANALYSIS OF EVIDENCE AND ARGUMENTS:
28. The general rule is that he/she who alleges a fact must prove it on a balance of probabilities. In unfair labour disputes, such as the present case, the onus rests on the Applicant to prove the unfair practice. In Lindsay v Ithala Development Finance Corporation Ltd (2) (2002) 23 ILJ 418 (CCMA), the Commissioner considered that, "with regard to onus, the principles of our labour law is clear that the initial burden of proof is always on the employee to show that the employer did something, whether it be a dismissal, or a labour practice, and once the existence of that fact is established, the burden of proof moves to the employer to show that what it did was fair. The overall onus always rests on the employee to show the existence of an unfair labour practice.” The Applicant has to prove her case on a balance of probabilities.
29. The Applicant’s representative alleged that the Second Respondent had only four years and eleven months of relevant experience, and not five years, as he had claimed. Therefore a specific period of the Second Respondent’s experience was disputed.
30. The Applicant provided no evidence to substantiate her allegations, and resorted to simply citing a “reliable source”, whom she did not name. This formed the basis and support for her allegations. She further stated that she investigated the matter, and that her results proved that the Second Respondent did not have the necessary experience, but once again failed to reveal any vital information that may substantiate her allegations.
31. To oppose the Applicant’s claims, the Second Respondent provided proof in the form of a letter from the Deputy Principal of Nansindlela Combined School, which enclosed staff registers that confirmed his time at the school. These documents were presented to the Applicant.
32. The Applicant provided no evidence to support her allegations and relied on unnamed sources and an investigation undertaken by herself. No conclusive proof was provided.
33. The Applicant as well failed to furnish any information as to her ranking, and whether she would have been appointed as the Deputy Principal had not the Second Respondent been appointed as the Deputy Principal.
34. It is noted that there are allegations by the Applicant that there are some discrepancies in the time book of Nansindlela Combined School, wherein the Second Respondent claimed he worked during the one month. However no forensic evidence was produced to establish this, and moreover this evidence was not produced as part of the Applicant’s testimony.
35. On the face of it I have to accept the Deputy Principal’s assertion that the Second Respondent was employed there in January 2014, as contained in the letter.
36. Any tampering with documents to gain an advantage is a criminal offence, and can be pursued in a different forum. Nonetheless on the evidence before me I have to dismiss the application.
37. I find that on a balance of probabilities there has not been any procedural or substantive unfairness on the part of the First Respondent in effecting the promotion.
38. The application is dismissed.
39. There is no order as to costs.