CASE NO: ELRC 25 – 20/21KZN
In the arbitration between:
NAPTOSA obo S. PARMASWAR APPLICANT
DEPARTMENT OF EDUCATION, KZN FIRST RESPONDENT
N. MUNSAMY SECOND RESPONDENT
DETAILS OF HEARING AND REPRESENTATION
 This arbitration took place over three days and was finalized on 24 February 2021. Ms I. Dhanook, an official from the Union NAPTOSA, represented the Applicant and Ms M. Mtetwa, from the First Respondent’s Employee Relation’s Office, represented the First Respondent. Mr E. Shozi, an official from the Union SADTU, represented the Second Respondent.
 The hearing was held on a virtual platform and recorded accordingly.
 The representatives made an application to submit closing arguments in writing on 3 March 2021 which I granted. The arguments were timeously received.
 The First Respondent’s bundle of documents was marked “A” and the Applicant’s bundle “B”. The Pre-Arbitration Minute concluded between the parties on 17 September 2020 was marked “C”.
ISSUE IN DISPITE
 I am required to decide whether the Applicant was treated unfairly in the selection process in respect of Post No. 342 advertised in terms of Human Resource Management Circular No. 36 of 2019.
BACKGROUND TO THE DISPUTE
 The Applicant is a Level 1 educator based at the Centenary Secondary School in Asherville, Durban, KwaZulu-Natal. She applied for Post No. 342 based at her school, that is, the post of Head of Department, Human and Social Studies (the post in dispute). The Applicant and 4 other candidates were short listed and thereafter interviewed for the post on the 25 January 2020.
 The Second Respondent (“Munsamy”) scored 40 points at the interview assessment and the Applicant 39 points. Munsamy, having scored the highest number of points, was ranked as the first preferred candidate on the recommended candidates list and the Applicant as the second. Munsamy was appointed to the post.
 The Applicant referred a dispute to the ELRC alleging that she was the victim of an unfair labour practice. The dispute remained unresolved at conciliation and was referred to arbitration, before me.
ANALYSIS OF EVIDENCE AND ARGUMENT
 The facts of this matter appear from the analysis that follows.
 The Pre-Arbitration Minute concluded between the parties stipulates the issues that I as the arbitrator am required to decide and are recorded in the minute as follows:
“THE ISSUES THAT THE PANELIST IS REQUIRED TO DECIDE
1. Was the process flawed by Ms. Mbatha signing documents without her being part of the IC?
2. Was (an) unfair labour practice committed by the employer by not hearing the grievance within the 30- day period?
3. Was the appointment process correct in that it was made without the grievance being heard?
4. (Is) Mrs. Parmeswar the best candidate for the post and should (she) have been ranked 1?
 The Applicant and the resource person of the IC, Mrs. O. Maharajh (Maharajh), testified on behalf of the Applicant. Mr. D. Gounden (Gounden) the Chairperson of the IC and Mr. A. A. H. Jeewa (Jeewa), a scoring member of the IC, testified on behalf of both Respondents. I proceed to determine the issues individually as delineated by the parties.
Was the process flawed by Ms. Mbatha signing the documents without her being part of the IC?
 Ms. KD Mbatha was appointed by the Circuit Manager to succeed Maharajh as the resource person to the selection committee on 10 February 2020 . Both the shortlisting and the interview process had by then been finalized. Mbatha was therefore not a member of the IC at the time and had not attended these processes. Of relevance is that she signed the EHR10 Forms, that is, the Interview Assessment Forms for the Applicant and Second Respondent dated 25 January 2020. She further signed the recommended candidates list to the department, Form EHR11 , dated 12 February 2020.
 The Applicant contends that this was unfair in that Mbatha was not competent to endorse the shortlisting and the interview process as having been fair because she did not witness those processes. Her conduct was not only improper but also fraudulent. It is common cause that Maharajh had refused to sign those documents on account of her personal view that the process was not fair.
 On 31 January 2020, six days after the interview process, Maharajh addressed letters to the Circuit Manager, Durban Central Circuit and to the Chairperson of the SGB . In the first letter she requests that the issues of the procedural and substantive irregularities that she raised in her report on the interview process be investigated. In her letter to the SGB she records the following at paragraph 3. “As indicated previously, I cannot be part of a process that is tainted by irregularities”. At paragraph 5 she states, “therefore I am not in a position to continue, I shall submit a further report to the circuit manager in this regard” and finally at paragraph 6 “I shall hand over all the documentation regarding this process to the circuit office”.
 It is evident that Maharajh had unilaterally withdrawn from further involvement in the selection process. She also refused to sign the necessary documents required to finalize the process. The difficulty that presented itself to the First Respondent was what should be done in the circumstances. The obvious answer was to appoint another resource person to succeed Maharajh and to see the process through to its finalization. I point out here that as a matter of reason and logic that decision cannot be faulted as with any other position that becomes vacant for one reason or the other.
 The question of whether Mbatha’s conduct rendered the selection process flawed must be answered with reference to the role of the Resource Person. Two consequential questions arise. Firstly, was Maharajh justified in her refusal to sign the EHR 10 and 11 Forms on account of her view that the process was procedurally and substantively irregular? Secondly, was Mbatha competent to sign those documents even though she had not personally witnessed those processes and if not was her conduct improper or fraudulent?
 The relevant HRM Circulars are derived from the Personnel Administration Measures (PAM) and are generically referred to as the “Procedure Manual”. They govern the manner and conduct of selection processes. HRM 36 of 2019 (the procedure manual), dealing with the shortlisting and interview process in this matter, provides that the Interview Committee (IC) shall, amongst others, comprise of:
“10.2.1 One departmental representative (who may be the school principal) as an observer and resource person. (The role of the resource person is to provide guidance on procedural issues).” (my emphasis).
 It is necessary for me here and later in relation to issues of substantive fairness to set out in detail the role of the resource person. Para 12 of the procedure manual provides that the resource person will be responsible to, amongst other things, ensure the following:
“12.1.4 The interview plan which includes the structure, types of questions to be asked, interviewing techniques, rating format and final recommendation is developed.
12.1.5 The selection process is transparent, fair non- discriminatory and in keeping with the constitution of the country.
12.1.8 Any challenges that may arise during the selection process is addressed.”
 It is evident from the quoted provisions that the resource person is required to manage and provide guidance to the IC on procedural matters only. Paragraph 24 of the procedure manual dealing with grievances and disputes is more instructive. It provides that only an aggrieved applicant or a union observer may lodge a grievance . No provision is made for the resource person to grieve or to complain, post the selection process. This is highlighted by the directive that all members of the IC sign a declaration of confidentiality . In the premises Maharajh erred in her decision firstly to raise her own complaints and secondly not to sign the relevant documents. Her conduct merely delayed finalization of the process. The applicant always retained the express right to lodge a grievance and if not satisfied to refer a dispute to council , which Applicant did.
 Appending one’s signature to the relevant process documents confirms the date, the name of the attendees and the capacity in which you attended . Paragraph 3.5 of Chapter 3 of PAM simply calls for accurate records of the process to be kept. There is no endorsement on the forms to the effect that by signing same you confirm that the process was fair. Selection processes are prone to challenge even when they are declared by all the role players to be fair. Although Mbatha did not witness the interview process she was properly appointed by the Circuit Manager to do what remained for the resource person to do. It is not in dispute that she attended and participated in the ratification process on the 12 February 2020. By appending her signature to all the necessary documents for submission to the department, she was simply confirming that the process was completed.
 If she were not permitted to do so that would have the absurd result that both the shortlisting and interview process would have had to be redone in her presence. The High Court held in Observatory Girl Private School & Another v Head of Department of Education that strict compliance with procedure is not necessary and form must not be elevated above substance. There must however be substantial compliance with procedure. The approach adopted by the First Respondent was both practical and expeditious.
 I reiterate that the applicant to the extent that she was aggrieved retained her remedy to refer a dispute to council, which she did. From a legal perspective Applicant’s unfair labour practice dispute only accrued upon finalization of the process. I find that the selection process was not flawed nor was there any improper or fraudulent conduct on Mbatha’s part.
Was an unfair labour practice committed by the first respondent by not hearing the grievance within the 30- day period?
 Sub paragraph 24.4 of the procedure manual provides that “A grievance shall be lodged within 7 days from the date when the grievance arises”. Applicant confirms that the grievance arose on 25 January 2020 . The 7- day period for the lodgment of her grievance expired on 1 February 2020.The Applicant lodged her grievance on 14 February 2020, 13 days out of the mandatory 7- day period provided for in the circular.
 I agree that there was no obligation on the First Respondent, in those circumstances, to deal with the Applicant’s grievance. The word shall in the context in which it is used is prescriptive. Time limits, where provided for, are critical in a selection process as for instance with closing dates for applications; and in my view must be abided by. I find on this aspect that there was no unfairness on the First Respondent’s part.
Was the appointment process correct in that it was made without the grievance being heard?
 Paragraph 24.7 of the procedure manual provides that “the DGC must finalize the grievance within 30 days, except where evidence is required, then the committee shall state the number of additional days required”. The Applicant’s grievance was not before the grievance committee within the prescribed 7 -day period. I persist in my finding that in those circumstances there was no obligation upon the First Respondent to deal with Applicant’s grievance. Moreover, this finding is fortified by the further provision in paragraph 24.8 which states that “a declaration of a grievance will not prevent the interview committee from proceeding with the selection process unless it is advised to halt the proceedings by the district grievance committee”.
 In the premises, I find that paragraph 24.8 of the procedure manual empowered the First Respondent to proceed with the appointment process.
Is Ms. Parmaswar the best candidate for the post and should (she) have been ranked 1?
 The applicant raised two challenges as to why she believes that she should have been ranked as the first preferred candidate on the recommended candidates list.
 In the first instance she alleged that Jeewa had interacted with Munsamy for a much longer time than the other candidates and “could have passed on information to him relating to the interview questions”. The IC had earlier agreed to the protocol that no one would leave the interview room without being accompanied by a union representative, as recorded in the minutes of the IC .
 It transpired that no union representatives attended the process. The IC nominated Jeewa to call each candidate from the waiting area. Jeewa testified that he was only requested to do so because he sat closest to the door of the interview room; which was not disputed. He denied Maharaj’s evidence that she had objected. He confirmed that he had escorted all candidates to the interview room and had spent a similar amount of time with each. The IC Minutes also record that Maharajh escorted each candidate out of the interview room . She too had left the interview room without being accompanied by a union representative.
 The possibility that Jeewa could have passed on information to Munsamy is speculative and was not borne out by the evidence. Secondly, Jeewa’s version that Maharaj did not raise this time issue with him at the process was not disputed. Thirdly, Jeewa explained that he had been requested by the IC to check whether Munsamy would be prepared to be interviewed at an earlier time due to the absence of a candidate. Munsamy refused and was interviewed at his allocated time. This explanation was not disputed. Finally, no motive was suggested as to why Jeewa would favor Munsamy. Jeewa, on my questioning, explained that both candidates were known to him on equal terms, as educators at the school.
 Even if Jeewa had in those circumstances spent more time with Munsamy it remained for the applicant to prove not only that Jeewa passed on information but that such information resulted in Munsamy performing better than she did in the interview process. In other words, the Applicant was required to prove that the irregularity that she complains of ultimately led to Munsamy being promoted over and above her . The applicant failed to do so. The IC’s decision was apparently a practical one given the time, effort and logistics that are required to arrange an interview process. Moreover, the absence of union involvement on the day was unforeseen. I accordingly find that this conduct by the IC in itself; did not constitute a procedural irregularity.
 Secondly, the Applicant testified that she was the best candidate for the post because she had higher qualifications and more experience than Munsamy. Moreover, she had acted in the post for a period of 20 months. The decision to appoint Munsamy over her was therefore unfair. She is consequently entitled to the relief that the process be redone from the interview stage before an independent interview committee.
 The labour court has pronounced on both issues raised by the Applicant. The fact that a successful candidate does not have better qualifications than an unsuccessful candidate does not mean that his or her promotion was unfair. Moreover, the fact that applicant acted in the post for 20 months did not give her an automatic right to promotion. See SAPS v SSSBC .
 In the matter of Noonan V SSSBC and Others the Labor Appeal Court held that there is no right to promotion. Candidates only have the right to be given a fair opportunity to compete for a particular post. If a candidate has been given that opportunity the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. So long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying interference with the decision to appoint. The fact that Munsamy scored the highest number of points was a perfectly rational reason to appoint him to the post.
 In the matter of Ncane v SSSBC and Others the Labor Appeal Court further held that the process of evaluating the suitability of a candidate for promotion is not a mechanical process and there is a justifiable element of subjectivity or discretion involved. It is for this reason that the discretion of an arbitrator to interfere with an employer’s substantive decision to promote a certain person is limited. An arbitrator may only interfere where the decision is irrational, grossly unreasonable or mala fides. The candidate who scores the most points must be recommended by the panel. A failure to comply with the rules may result in substantive unfairness.
 Whether the Applicant’s attributes warranted her scoring the overall higher number of points and whether the interview committee erred in the point scoring exercise I as an arbitrator am not qualified to determine. No allegation of bad faith in the scoring process was made by the applicant party. The one- point difference between the two candidates does not appear to be irrational or unreasonable let alone grossly unreasonable .Finally, the difference in the averaged scoring in respect of each of the five questions between the two candidates is literally, fractional.
 In the final analysis the onus to prove that the scoring process was substantively unfair rested with the Applicant. It was incumbent upon her to prove that the process was beset with irrationality or unreasonableness on the part of the IC. There is no evidence before me to that effect. I accordingly find that the Applicant has failed to discharge the onus on her to prove the unfairness alleged.
I accordingly make the following award:
(a) The application is dismissed.
(b) I make no order as to costs.
15 March 2020
Adv. Anashrin Pillay