Case Number: PSES436-19/20EC
Province: Eastern Cape
Applicant: NAPTOSA obo Ludwe Eric Mazwi
Respondent: First Respondent Department of Education Eastern Cape; 2nd Respondent S. Besman
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Fort Beaufort Department of Education District office
Award Date: 11 February 2021
Arbitrator: M.A. Nozigqwaba
Case Number: PSES436-19/20EC
In the matter between
NAPTOSA obo Ludwe Eric Mazwi Applicant
Eastern Cape Department of Education First Respondent
S. Besman Second Respondent
Appearances: For the applicant: Adv G.D. Saayman (NAPTOSA);
For the first respondent: Mr T. Tsheko;
For the second respondent: Mr M. Mfazwe (SADTU)
Arbitrator: M.A. Nozigqwaba
Heard: 28 August 2020; 02 – 03 November 2020; 26 January 2021
Delivered: 11 February 2021
Summary: Labour Relations Act 66 of 1995, as amended, section 186(2)(a)-
Alleged unfair labour practice relating to promotion
DETAILS OF HEARING AND REPRESENTATION
1. This arbitration was held at Fort Beaufort Department of Education District office on 28 August 2020; 02- 03 November 2021 and 26 January 2021. Ms Ludwe Eric Mazwi (applicant) was represented by a NAPTOSA official, Adv G.D. Saayman. Eastern Department of Education (1st respondent) was represented by its official, Mr T. Tsheko. The appointed incumbent in the contested position, Dr Shirley Besman (2nd respondent), was represented by a SADTU official, Mr M. Mfazwe.
2. At completion of the proceedings parties agreed to submit written heads of arguments by not later than close of business on 02 February 2021. All parties submitted as agreed.
ISSUE TO BE DECIDED
3. I have to determine whether an unfair labour practice relating to promotion was committed, and if so, issue the appropriate relief.
BACKGROUND TO THE ISSUE
4. This is a promotion dispute involving Amathole West District based position of DCES: EDUCATION SOCIAL SUPPORT SERVICES HIV/AIDS, LIFE SKILLS& SNP CO-ORDINATOR (reference ECDOE32/1/19), which was advertised in the Eastern Cape Province Vacancy Circular 25 of 2018/19. The post’s salary scale, as per advert, is R482 706 per annum.
5. After the post was advertised the applicant, the 2nd respondent and other candidates applied for the post. The applicant was a Senior Education Specialist salary level 11(SES) when he applied and is still in this position. The 2nd respondent was the successful candidate and she was appointed to the position.
6. The applicant's challenge to the post is that there was a panellist who was not supposed to be part of the process, Ms Yekela, and this led to the processes being procedurally unfair. The process was also substantively unfair, and this was as a result of the following: the incumbent was given favourable treatment; the outcome of the process was predetermined on the incumbent’s favour; the incumbent misrepresented her profile; and the applicant the applicant was mistreated by the panel despite being the best candidate in terms of experience and knowledge of the work done in the position. The relief sought is that the promotion of the incumbent into the position be set aside, and the applicant be appointed in the position instead. Alternatively, the applicant is seeking 12 months’ salary compensation for the 1st respondent’s conduct. As the applicant’s notch is above the entry notch of the position challenged the relief of being promoted will be realize, if his challenge is successful, by 6% increase to his notch (which is R582 936.00) as provided by clause 8.6 of Chapter B of the PAM Document.
7. The 1st and the 2nd respondent are saying that the process towards the 2nd respondent’s promotion was fair, and the applicant’s challenge lacks merits and stands to be dismissed.
SURVEY OF THE EVIDENCE AND ARGUMENTS
8. It is common cause that the post was advertised in February 2019. The interviews were held on 28 March 2019, and the incumbent was appointed to the position with effect from 01 June 2019. The applicant was scored the 2nd best candidate. The applicant’s post matric academic qualifications are: Bachelor of Arts; Higher Diploma in Education; Post Graduate Diploma in HIV and Aids; and Honours in Public Administration. He has been with the Department from 1990 as an educator and has been a SES from 2009 to present. The 2nd respondent’s post matric qualifications are: Bachelor of Arts; Higher Diploma in Education; ACE ELT; Bachelor of Education Honours; Master’s Degree in Education; Principal Management and Development Programme; and PHD in Education. She has been in the Department from 1995 to present. She was a school’s based educator (post level 1) when she applied for the position. She has been in the school’s SMT from 2012 to 2019, but this is contested by the applicant.
9. The applicant’s case is that the 1st respondent shortlisted the incumbent even though she did not meet all the requirements set in the advert. It also deliberately excluded candidates in the short-list with qualifications similar to the incumbent, and those with profiles better than hers. The applicant was shortlisted even though she did not have a driver’s license. The incumbent was favoured because she was in SADTU leadership.
10. The 1st respondent’s case is that the process it employed leading to the appointment of the incumbent was fair. The incumbent made it to the shortlist by virtue of her academic qualifications and experience in management as a member of the school’s management team (SMT). The applicant was also shortlisted and given opportunity to sell himself to the inter-view panel, as was the case with the incumbent and other shortlisted candidates. The 1st respondent therefore fairly exercised its prerogative to appoint as it appointed a candidate who performed best in the interviews, after having granted the applicant the incumbent and other candidates a fair opportunity to compete for the position.
11. The 2nd respondent’s case is that the process towards her appointment was fair according to PAM standard, as she emerged out of a process that allowed shortlisted candidates to sell themselves. The applicant’s challenge is frivolous and stands to be dismissed.
12. The applicant testified that the position advertised talked to the very duties he was doing in the District as SES under the unit in which the post fell. In fact he had been rendering the functions of the position, while it remained vacant. He had also been appointed on acting capacity as section head on several occasions, when Mr Plata (CES- ESSSS) would be out of the district for some time. His profile in terms of experience and exposure was the exact match of the requirements set in the advert (page 2 of bundle A). He has proven experience in managing people as there junior staff members reporting him, which includes learner support agents and three social workers. He also runs curriculum support programs assigned to him and is responsible for the budget allocated to the programs. From 2009 he started to work as SES for HIV / AIDS in the District after he was assigned this responsibility by his manager, Mr Plata. He has performed very well in his unit and has received a number of endorsements and accolades. The 2nd respondent does not have management experience and exposure in curriculum support as far as he knows. She was a post level 1 educator when she applied for the position. There were candidates who did not make it to the shortlist even though they had higher profiles than the applicant, like a candidate who possessed a doctorate, like the applicant, and was also a principal with several years of experience. The incumbent also was not part HIV school co-ordinators in the District. Her school (Mdeni) had Mr Balashe, and not her, as the school’s co-ordinator. Her being involved in SADTU HIV / AIDS program, could not have given her the edge over him as the Education Department’s programs are of top priority than those of stake holders like unions. The applicant had filed all the required documents in his application, unlike the 2nd respondent who did not include the driver’s license, which was one of the requirements. The incumbent was favoured because she was in SADTU regional leadership. The applicant had reliably learnt from Mr Mgidi (who had heard from Mr Plata) that the late Superintendent General (SG) had directed the District Director to ensure that the 2nd respondent be appointed in the position. The applicant testified further that there was a supply chain manager (Ms Yekela) who should not have been included in the panel as she did not possess expertise that would have assisted in choosing the best candidate. It was put to the applicant on cross examination that as life orientation teacher, the incumbent was a co-ordinator of HIV / AIDS program at school and he conceded that it was possible that she was. It was further put to her that the 1st respondent was also co-ordinating HIV /AIDS in SADTU. The applicant’s reply was that the programs he managed never had any dealings with the union. It was also put to him that the applicant was part of SMT and was therefore exposed in leadership and managing of school finances. His response was that her exposure never made her a manager. On the issue of Ms Yekela the applicant conceded that the skills she had as supply chain manager would have assessing the candidates on knowledge of finances. The applicant was also referred to the master list (page 22 (vi)) where it is reflected that the 2nd respondent did submit her driver’s license as per requirement. She also had included it in her applicant and was not aware as to why its copy was no longer attached in her application.
13. Mr Louis Loyiso Mgidi (DCES- Exams in Amathole West District) testified that what he told the applicant is that he heard a rumour that the post had been cooked in favour of the incumbent. The rumour was communicated to him by the late Mr Ngondwana, and not Mr Plata. What Mr Plata said to him was that it was so unfortunate that the applicant was not appointed.
14. Ms Nomahlubi Nolisi (SES- School Health and Safety Enrichment Amathole West District) testified that she is responsible for co-ordinating Integrated School Health Program, and she works with school based co-ordinators. At Mdeni School the co-ordinators she worked with were Mr Thunyiswa and Mr Balashe, and also Mr Fihla who would represent the principal is she would not attend. She never worked with SADTU nor the applicant in her program. On cross examination the witness was asked whether she would say the applicant had exposure in dealing with school health issues as she was serving in the gender desk and was also in school’s health and safety committee. Her answer was that she cannot confirm or deny that as she did not work with her. When asked about involvement of stake holders in School Health Programs the witness conceded that unions (including SADTU in which the applicant was a leader) were involved, and because of that the applicant might have been involved in the program.
15. Mr Luvuyo Makhanda (panelist in the recruitment process 1st respondent’s witness) testified that he was part of the panel which set for the post in question, and his co-panelists were Ms Futshane (Amathole West District Director); Ms Yekela (Deputy Director- Supply Chain Management), and Mr Plata (CES- ESSS). On their first meeting they did the shortlisting, and ended up having 7 candidates (Angela Mzantsi; Berther Mosina; Nomxolisi Makayi; Kayalethu Siwisa; Ludwe Mazwi; Shirley Besman; and Nozibele Gusha- Nombombo (page C (ii))of A). In shortlisting they based their criteria on the advert. Those who did not meet the advert requirements were put aside. Questions for the interviews were set and the unions, SADTU and NAPTOSA who were represented, were happy with the process. The date of the interviews was set and all 7 candidates participated. SADTU and NAPTOSA were still represented and were happy with the process up to its outcome. Dr Besman was the successful candidate, while the applicant was ranked the second best candidate. On cross examination the witness was asked as to why the 2nd respondent was shortlisted and ultimately appointed while there was no driver’s license in her application, contrary to the post requirement. His reply was that he could not recall whether the license was in the application or not. However, when questioned by 2nd respondent’s representative on this issue, and referred to the master list (page 22(vii) of A), the witness said it is clear deducing from what appears in the master list that the applicant had submitted her driver’s license. When asked on whether the 2nd respondent had experience on curriculum support his answer was that there were variable number of items that made her a candidate with such experience. The witness objected to the notion that the incumbent’s appointment was predetermined. He further testified that he had seen the applicant before the interviews but they were not acquaintances or related in any way. On the issue of the incumbent having put him as her reference in her CV the witness’ answer was that there was nothing sinister about that as she might have done so because he was head of CMC and the incumbent might have had activities pertaining to CMC. He went further and said that even the applicant had Mr Plata (a panel member) as a reference, and there was still nothing sinister.
16. Ms Nomgcobo Perseverance Futshane (Amathole West District Director) testified that she was part of the panel for the position in question, and her co-panelists were Mr Makhanda; Mr Plata& Mrs Yekela. They had been appointed by their Cluster Chief Director). They started with 104 applicants and the criteria used to eliminate others in order to come to the shortlist was firstly derived from the advert. They never confined themselves to office based applicants, and equity was also one of their considerations. NAPTOSA and SADTU were involved as observers in the process up to the interviews. Unions observed even on crafting of interview questions. The applicant was shortlisted and when interviewed he answered the questions. With regards to question 2 (on applicable policies) talked only of CSTL framework and Integrated School Health. On this question the incumbent had given a satisfactory answer as she comprehensively mentioned all applicable policies. In giving her answers she would be more articulate than the applicant. The applicant concentrated on his qualifications in his answers. After they had individually scored the candidates they combined them and the ultimate top candidate was the 2nd respondent. She vehemently denied having received an instruction from the SG to appoint the 2nd respondent in the position. On the issue of the incumbent’s management experience she testified that the incumbent was SMT member and thus part of school management as she would have been eligible to act in the absence of the principal. She also denied that the ultimate appointment of the incumbent was influenced by the fact that she was a SADTU leader. She asserted that the panel was influenced by her performance during the interviews. When asked about the incumbent’s driver’s license at cross examination, she testified that the incumbent’s application could not have made it past the master list without the driver’s license. Her application did have the driver’s license. The incumbent could not have had ESSS experience but she rendered activities of the post where she was. The incumbent was also the member of the School Health Committee, and this appeared in her CV and this was confirmed by her principal (her reference). She did not call other applicants’ references as they were working with her in the district and she knew what they were doing. On the issue of Mr Makhanda being the incumbent’s reference she testified that Mr Makhanda only became aware of this fact on the day of shortlisting. This also happened with Mr Plata who appeared as the applicant’s reference. The two panelist did not declare prior the shortlisting because they did not know they were cited as such. She denied having influenced other panelists to give the incumbent higher score.
17. It was argued for the applicant that the incumbent misrepresented herself in her application to gain an unfair advantage. There was bad faith on the part of the 1st respondent as the applicant was shortlisted even though she did not attach a driver’s license in her application. The incumbent was unfairly favoured by the panel even though she did not meet the minimum requirements of the position. She was a post level 1 educator, while the applicant is in a position much senior than hers. The applicant is the better qualified for the position because of his vast experience in the position and in management. The 2nd respondent’s appointment should therefore be set aside as it was a result of an unfair decision and an unfair process. The applicant, who was ranked the second best candidate should be appointed instead, or alternatively be compensated with 12 months’ salary.
18. It was argued for the 1st respondent that a fair and correct procedure was followed leading to the appointment of the incumbent and it was in line with what is provided in the PAM document. The applicant, the incumbent and other candidates all got a fair opportunity to present their candidature. The incumbent presented hers the best hence she got appointed. The applicant got rated the second best candidate based on his performance in the interviews and this proves that his candidature was also fairly considered. The allegations of unfairness in the process and the ultimate decision to appoint the incumbent being an unjustified one are unfounded. No unfair labour practice was committed and the applicant is not entitled to any relief.
19. For the 2nd respondent it was argued that the applicant failed to prove unfairness on the process. The panel was properly constituted in accordance with PAM document. The recruitment process was observed by sake-holders, NAPTOSA and SADTU, from start to finish. From the fairly conducted process the 2nd respondent emerged as the best candidate, and this was as a result of her good performance in the interviews and the fact that she had met the minimum requirements which included her experience in management as SMT member, possession of a driver’s license (evident from the master list that she submitted it), 30 years plus experience in the Department. The applicant’s assertion that the process was predetermined and manipulated in the 2nd respondent’s favour could not stand as the applicant’s witness could not vouch on the veracity of the allegation that the SG had instructed the District Director that the incumbent be appointed in the position. The applicant’s case stand’s to be dismissed. If it were to be found on the applicant’s favour, compensation should be ordered as the 2nd respondent has served very well in the position.
ANALYSIS OF EVIDENCE AND ARGUMENTS
20. On the issue of whether the panel was properly constituted because of the fact that Ms Yekela was its part, I have considered the fact that she was the Supply Chain (SCM) manager and was well vested in dealing with finance issues which was one of requirements of the position. I find that there was nothing untoward with her inclusion in the panel as she is a manager and her insight was necessary in the panel. Besides the panellists were to first agree on questions and answers beforehand and then evaluate the candidates. As SCM manager she was well competent to discharge panellist duties in that process.
21. In Arries v CCMA and others the Labour Court held that the grounds for a commissioner (ELRC panellist in this case) to interfere with a competent discretion clothed organ of the employer are limited only to instances where such discretion was improperly exercised. The applicant has alleged that the 1st respondent improperly exercised its discretion when it shortlisted the incumbent who did not attach the driver’s license in her application and who did not have the requisite proven experience in management and experience in dealing with the activities mentioned in the advert. The 1st respondent, on the other hand, says it shortlisted the incumbent based on her qualifications, experience in management as SMT member, and exposure in HIV / AIDS program. It exercised its prerogative of appointing a suitable candidate after it had allowed a fair opportunity to the applicant, the incumbent and other candidates to compete for the position.
22. The 2nd respondent joined the Department in 1995, and has the requisite teaching experience as sought in the advert. She has qualification in the education profession. What is disputed is proven experience in management, her experience in curriculum support programs, and the fact that she had submitted her driver’s license. The 1st respondent’s witness, Mr Makhanda, testified that her application would not have made it to the shortlist if there was no license attached. He relied also to the fact that in the master-list (page ) she is reflected as having submitted it. Ms Futshane testified that the incumbent did attach her license in her application as this is reflected in the master-list. She went further to say that it may have happened that it was mistakenly removed from the application. I am persuaded to believe that the license was attached as the master-list says that it was attached. On the issue of whether the applicant had management experience, Ms Futshane testified that they relied on the fact that the applicant was SMT member for a long time. This meant that she was in management even though she was post level 1. As SMT member she would act as a principal and take critical decisions for the school. Ms Futshane had also called her reference (her school principal) to verify her management experience and that was confirmed. On the issue of the incumbent’s experience in HIV / AIDS experience Ms Nolisi testified that the incumbent was not part of educator representing her school on Schools Integrated Health program which dealt with HIV / AIDS. She however conceded at cross examination that the incumbent might have been part of the program by virtue of being leader of the stakeholder (SADTU) that was part of the program. On balance of probabilities I find that the incumbent did partake on HIV / AIDS program as a person who represented one of the stake holders.
23. With her academic qualifications, experience and exposure on the position in question the incumbent was given an opportunity to present her candidature, as was done to the applicant and the other shortlisted candidates. On ascertaining which of the shortlisted candidate was the best suited for the position the 1st respondent, through its panelists evaluated the candidates through interviews and then ranked them in order of preference as according to how they performed. When doing so the panel exercised the discretion and prerogative to appoint the best candidate on behalf of the 1st respondent.
24. This brings about the next question of whether the said prerogative was exercised fairly. In Noonan v SSSBC and others it was held that there is no right to promotion in the ordinary course. There is only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice. If the employee is not denied of competing for a post, then the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. In other words, whether the prerogative to appoint a suitable candidate was exercised fairly.
25. There was an allegation that the appointment of the respondent was predetermined as there had been an instruction from the then SG that the incumbent be appointed. This allegation could not be confirmed by the applicant’s witness, Mr Mgidi, who testified that the person who had related this to him had told him that it was only a rumour and nothing more. Ms Futshane denied that there was ever an instruction of that sort from the then SG. This allegation therefore falls to be dismissed.
26. On the allegation of the incumbent having been favoured I find that no satisfactory or persuasive evidence have been adduced to suggest that such had happened. The panellests had scored the candidates separately and then came together and consolidated their scores. Some of the panellists might not have comprehensively written the reasoning behind their scoring, but what remains key is that they sored as they did based on how satisfied they were with the answers. I have not been appraised of any proven untoward acts from any of the panellists.
27. In light of the aforesaid I find that the applicant, 2nd respondent na other shortlisted candidates all got a fair opportunity to present their candidature and the incumbent was the successful candidate. There was no unfairness whatsoever in the process and the decision to appoint the incumbent cannot be said to be arbitrary or motivated by an unacceptable reason.
28. I therefore make the following award:
28.1. The 1st respondent did not commit any unfair labour practice when it appointed the 2nd respondent to the position of DCES: EDUCATION SOCIAL SUPPORT SERVICES HIV/AIDS, LIFE SKILLS& SNP CO-ORDINATOR (reference ECDOE32/1/19.
28.2. The applicant’s claim falls to be dismissed and he is not entitled to any relief.
Commissioner: Mxolisi Alex Nozigqwaba