Case Number: PSES715-19/20GP
Applicant: PSA obo Ndikandika & 1 Other
Respondent: Department of Higher Education & Training (Sedibeng TVET College – Vereeninging)
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Sedibeng TVET College
Award Date: 10 December 2020
Arbitrator: Dennis Gondoza
Case Number: PSES715-19/20GP
Commissioner: Dennis Gondoza
Date of Award: 10 December 2020
In the ARBITRATION between
PSA obo Ndikandika & 1 Other
Department of Higher Education & Training
(Sedibeng TVET College – Vereeninging)
Employee’s representative: Mr B Sibeko
Employer’s representative: Mr JD Olifant
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration hearing in this unfair labour practice dispute in terms of Section 186(20(a) of the Labour Relations took place on the 16th of November 2020 at Sedibeng TVET College.
2. The “Applicants”, Mr Ndikandika and Radebe were represented Mr B Sibeko; the trade union official for PSA, and the “Respondent” was represented by Mr Mr JD Olifant.
3. The hearing was conducted in English and the proceedings were fully explained to the parties. Hand written notes were kept and the proceedings were digitally recorded.
ISSUE TO BE DECIDED
4. The Applicants applied for a vacant position advertised by the Respondent but were never shortlisted for interviews. The Respondent subsequently appointed another person to the advertised vacant position after the interview process was concluded.
5. I must decide whether the Respondent has committed an Unfair Labour Practice in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended (LRA). I must also decide on the appropriate relief.
BACKGROUND TO THE DISPUTE
6. The Applicants are both employed as lecturers by the Respondent on PL1.
7. In September 2018, the Respondent advertised a position (Campus Manager – PL5), both the Applicants applied for this position.
8. The position was advertised with the following requirements;
a. Bachelor’ degree or equivalent qualification;
b. Professional Qualification;
c. 7+ years’ experience in TVET/ Education Sector;
d. 3+ years’ experience in management.
THE APPLICANTS’ CASE
9. The Applicants contend that the Respondent deviated from the prescripts of the advert and hugely disadvantaged the Applicants. The Applicants aver that the advert mentioned explicitly that 3 years management experience is an advantage. However, the advert did not specify in which sector the management experience related to or would be given recognition. Furthermore, the Applicants argue that the advert itself did not specify that only those currently employed on PL2 and Pl3 would be the only ones considered for interviews to the exclusion of everyone else.
10. The Applicants contend that Mr Ndikandika’s exclusion on the basis of a lack of professional qualification was unjustified, as he is licensed to “Teach in the Further Education and Training Sector”. In addition, the Applicants aver that the Respondent did not consider the Bachelor’s Degree Mr Ndikandika possesses.
11. The Applicants submit that Mr Radebe met all the requirements for the position as per the job advert. The Applicants aver that Mr Radebe’s application was sifted and met the minimum requirements as prescribed in terms of clause 6.3 (a) of Collective Agreement 4 of 2013 (Policy on Recruitment and Selection for Lecturing Staff in the Public Further Education and Training Colleges). Furthermore, the Applicants argue that the exclusion of Mr Radebe because of additional criteria applied was unjustified as he met the minimum requirements for the advertised position.
THE RESPONDENT’S CASE
12. The Respondent submits that the first applicant Mr Ndikandika was not shortlisted because his application was disqualified during the sifting stage by the panel, the reason for the disqualification being that he did not possess a professional qualification. The Respondent, contends that the advertisement indicated that the requirement was a Bachelor’s Degree or equivalent qualification backed by a professional qualification. The Respondent argues that Mr Ndikandika did not have a professional qualification in education, this qualification is a qualification where a person is trained with a method of teaching.
13. The Respondent confirms that the second applicant Mr Radebe’s application met the minimum requirements and was part of the first round of shortlisted applicants. However, the Respondent submits that there were more that five applicants and the panel had to make an additional requirement to get a manageable number for interviews. The Respondent further submits that the additional criteria applied was to only consider applicants who were employed on PL2 and PL3 for the next round. The Respondent argues that following the application of the additional criteria, eight (8) applicants were invited for the interviews and Mr Radebe did not progress the stage of invitation to the interviews because he is a PL1 Lecturer.
14. The Respondent avers that the only reason why the panel applied the additional criteria was that the panel had an unmanageable number of applicants after the first round of sifting. The Respondent argued that the clause 6.4 of the ELRC Collective agreement allows for a further shortlisting process where many applicants meet the essential selection criteria.
ANALYSIS OF EVIDENCE AND ARGUMENT
15. While I have considered all the evidence and arguments, I have 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 when necessary during my evaluation of the evidence and arguments. The same applies to the exhibits that were handed in.
16. 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 Department & Others v Governing Body of the High School & Others (584/07)  SCA 48 the Supreme Court of Appeal held that an employer “… is required to act reasonably and, 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…”
17. 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 ILJ 513 (CCMA). It should also be highlighted that it is trite in 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.
18. 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.”
19. An employee who alleges that s/he is a 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.
20. 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.
21. 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.
22. Therefore, an arbitrator may only interfere with the employer’s decision if the employee proves that the employer, in not appointing s/he 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.
23. It is important to note that, an Applicant in a promotion dispute needs to establish a casual connection between the irregularity or unfairness and the failure to promote. To do that s/he needs to show that, but for irregularity or unfairness, he would have been appointed to the post or the post be re-advertised.
24. This necessarily means that s/he must show that not only was s/he better qualified and suited than the successful candidate who was appointed, but also that s/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 casual connection is not required.
25. In conclusion, when considering all the information before me containing the recruitment process and interviews, I am simply satisfied that the Applicants have not proven that they were necessarily better equipped than for the position than the appointed incumbent.
26. I accept that the Respondent did not unfairly and in malice overlook the Applicants for this position and / or exclude them from the process deliberately.
27. The Applicants could not establish any unreasonableness in the conduct of the Respondent except the belief that they should have been shortlisted and be invited for interview. In fact, the first Applicant Mr Ndikandika did not meet the minimum requirement for the position.
28. As regards the second Applicant Mr Radebe, I believe the additional criteria applied to further sift the application was within the discretion of the Respondent and that such exercised with the required prescripts. On this basis I find that the Applicants failed to discharge the onus on a balance of probabilities that the conduct of the Respondent amounts to unfair labour practice relating to promotion.
29. I am satisfied that the Respondent appointed the current incumbent correctly and substantively.
30. In the premise, I render the following award;
31. There was no unfair labour practice committed by the Respondent,
32. The Applicants’ application is dismissed.
Commissioner: Dennis Gondoza