Panellist/s: Jonathan Gruss
Case No.: ELRC 1036-19/20 EC
Date of Award: 12 May 2021
In the ARBITRATION between:
SADTU obo Nomathemba Victoria Pule (Applicant)
Department of Education – Eastern Cape & Others
Applicant’s representative: Mr Magobiane
Applicant’s address: 37 Belgravia Cresent,
East London, 5200 Telephone: 073468 7401/0731883822
Email email@example.com / firstname.lastname@example.org
Respondent’s representative: Mr Tsheko
Respondent’s address: Rubusana Building, NU1,
Telephone: 0437086244 & 0605238324
Email email@example.com & firstname.lastname@example.org
Third Party representative: Mr Campher
Third Party’s address: 37 Belgravia Cresent,
East London, 5200
Telephone: 0784230087/ 0731883822
Email email@example.com / firstname.lastname@example.org
DETAILS OF HEARING AND REPRESENTATION
1. This dispute was referred for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The hearing was held at the premises of the District Office at the Rubusana Building, NU1, Mdantsane. The proceedings were electronically recorded and held on 28 April 2021. The applicant, Nomathemba Victoria Pule was represented by Mr Magobiane, an official from SADTU, a registered trade union. The respondent, Department of Education: Eastern Cape was represented by Mr Tsheko, a Labour Relations Officer. The incumbent third party, Mr Mandla Mlongo was represented by Mr Campher, an official from SADTU, a registered trade union. The SGB of Kusile Comprehensive School was represented by Mr Beula, the chairperson of the SGB. The parties agreed to submit written closing arguments by no later 5 May 2021 and submitted written closing arguments.
ISSUE TO BE DECIDED
2. I am required to determine whether or not, the respondent, Department of Education: Eastern Cape committed an unfair labour practice as contemplated in terms of Section 186(2)(a) of the LRA by not shortlisting the applicant and thereby denying her the opportunity to be interviewed for the position of HOD, IsiXhosa at Kusile Comprehensive School and thereafter determine appropriate relief.
3. In terms of narrowing of the issues at the commencement of the arbitration hearing, the parties agreed that the following were accepted as common cause facts, namely:
3.1 The applicant is currently employed as a post level 1 educator at Kusile Comprehensive School and earns R315 637.00 per annum. She commenced initially employment after graduating with the Western Cape Department of Education as a temporary educator in 2005 and worked in George. In 2007 she worked as a lecturer for Rhodes University teaching the language subject of IsiXhosa. In 2008 she joined the Department of Education: Eastern Cape as an educator on a temporary educator in Queenstown and became permanent during 2010 at Nompomelelo High School.
3.2 The post of HOD IsiXhoza was advertised in Bulletin 6/2019-189. Closing date for the submission of applications was 11 October 2019. The applicant applied for the post and submitted an application form, a CV and supporting documentation.
3.3 The shortlisting for the advertised post was done on 29 October 2019 and the applicant was not shortlisted and therefore not interviewed. The interviews for the post was held on 12 November 2019. The incumbent was appointed on 7 February 2020 and the applicant was informed of the appointment of 11 February 2020. An unfair labour practice promotion dispute was on 5 March 2020 referred to the ELRC.
3.4 According to the respondent, the applicant was not shortlisted in that no standard 10 certificate (matriculation) was attached to her application, the applicant’s education employment profile form was not completed as it relates “highest REQV level” and “highest NQF level” and the information in the column dealing with her Post Graduate Certificate in Education as it relates subjects did not correspond with documentation submitted by her.
3.5 The applicant seeks for the appointment of the incumbent to be set-aside and that the she be appointed.
4. The applicant claims that she should have been shortlisted and was denied an opportunity to complete by not being interviewed.
SURVEY OF EVIDENCE AND ARGUMENT
5. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) of the Act relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
6. The Applicant testified under oath to the following effect.
6.1 She was not shortlisted as a person who is highly qualified, she has an honours degree from Rhodes University and taught the subject IsiXhosa at university. In 2019 she started teaching grade 9 learners and she receive an award from the Buffalo City Metro Education District as the best performing educator. In 2020 she was assigned to teach grade 9 and 10 and thereafter she taught grade 12. And as from 2020 she was promoted to teach grade 12. As from 2021, February she was charged with misconduct.
6.2 After she was not shortlisted she wrote a letter to the District Manager, Mr Tom on 7 November 2019 enquiring as to why she was not shortlisted. She did not receive any response from the District Office. On 6 November 2019 she also sent an email to Mr Tshibo at the Labour Relations Section enquiring as to the reason for her not been shortlisted. On 11 November 2019, she called a Mr Jevu from the labour relations office and he advised her to lodge a complaint. This she did and she was told by him not to stress in that he would stop the interviews because she was challenging having not been shortlisted.
6.3 On 20 November 2019, she again called Mr Jevu to reminding about what he had said. He then started not to take her calls. She also called Mr Tsheko in that Jevu was not taking her calls. Mr Tsheko indicated to her that he had referred the matter to the District Director and that District Director would call her in due course.
6.4 On the reason for her not attaching her Standard 10 matriculation certificate to her application form was that she had applied for copy original certificate in that it was lost. She did however attach an official Department of Basic Education and training statement wherein it is stated that the statement was issued in lieu of a certificate which had been lost or destroyed. The statement further records that according to the departments records the Standard 10 certificate General Group dated 1 January 1998 was issued to the candidate and her name appeared thereon and a list of subjects passed is recorded therein. The fact that she could not attach her Standard 10 certificate should not be a big deal in that she has certificates and degrees to prove her qualification. Had there been an issue this would have been recorded on the minutes. She is of the view the reason given was manufactured in that Ms Ngqondela on 22 February 2001 said that they (interview committee) had made a decision that she cannot succeed in challenging the appointment of incumbent and that she was silly. She told her (applicant) that she was just wasting her time and energy in that she cannot get the post.
6.5 Should you look at the incumbent’s qualifications, she is better qualified for the position in that he only has a BA and the HDE and some courses. As confirmed by the minutes of the interview panel, the SADTU representative, Mr Matsinya had raised an issue with the panel that an educator had already logged a complaint to the head office, stating that he was just making the panel aware that procedures had been challenged. The panel states that the process would continue.
6.6 Should you look at gender equity at the school, the incumbent is a male and he is replacing the previous HOD who was a female and therefore gender equality is not recognised by the school. Should you look at the composition of management at the school you have the principal who is male, two deputy principal who are male and 3 male HOD’s and one female and 2 SNT members who are male.
6.7 For her it is difficult to report to someone such as the incumbent who does not have specialisation qualifications.
6.8 Under cross examination, the applicant indicated that she was not contesting the profile of the post and she is aware of the equity plan. On a question whether it is not unreasonable to expect her to fill in an application form to the fullest, she responded, yes and commented that it was not an issue. As it relates to the applicant claiming that she has a letter from the Department of Basic Education that records that they no longer issue certificates, she was asked why she did not include the letter as part of her bundle when applying for the post. Her response was that the panel should have queried her and they could have called Pretoria. She indicated that there is a lady at HR who checks according to checklist if the form and documentation are correct and had there been a problem her application should never been allowed to be processed. Even if the SACE certificate is not attached that lady will tell you.
7. Ms Nondumiso Mangisa testified under oath to the following effect.
7.1 She formed part of the panel for the HOD post. The applicant applied for the advertised post and was not shortlisted. The reason for her not being shortlisted was that there was no Standard 10 certificate attached to application and the application form was not completed completely. She failed complete paragraph 19 of the educator employment profile form in that she did not record the highest REQV level and her highest NQF level. At paragraph 20.6 she failed to indicate as relates a basic Financial Management whether her skills can be recorded as established or developing or not yet established. At paragraph 21.2 the applicant did not indicate previous posts she held as an educator. She knows Ms Nondela and that person is not authorised to speak on behalf of the SGB in that she is not the SGB spokesperson.
7.2 Under cross examination when asked since when the witness notice that the applicant’s application was not completed properly, she indicated that they first noticed there was no matric certificate and then they went through the application form. All panellist check each application form and had a discussion concerning the absence of a matric certificate and the incompleted application form. The applicant should have written on the application form to see the attached CV. The instruction given on application form is that this form combines information in the standard application form and the standards CV information into one employment profile form. Place an X in blocks where applicable. When they were busy with compiling the shortlist, no rejection remarks were made against the applicant in that no personal discussions were held.
8. Ms Chokozile Dyantyi-Moya testified under oath to the following effect.
8.1 She is employed by the respondent at works at their head office. When they receive application forms they sign acknowledgement of receipt and check whether the application was filed on or before the closing date. They also capture candidates and compile a final list for them to shift. They do not at a HO take any applications out of the bundle, all applications of then forwarded to the Circuit Manager.
8.2 There is no checklist, they have a master list and only check to see that the list is completed after the interviews.
8.3 Under cross examination, she reiterated by signing receipt for the applications, they do not check the application form. On the master list they capture the highest qualification recorded.
ANALYSIS OF EVIDENCE AND ARGUMENT
9. It has become trite law that there are three basic requirements for a fair appointment or promotion: the procedure must have been fair, there must have been no discrimination, and the decision must not have been grossly unreasonable.
10. The principles which determine promotion disputes are summarised by Commissioner Rycroft in Dlamini v Toyota SA Manufacturing (2004) 25 ILJ 1513 (CCMA) at 1517 where he is reported as follows:
“The principles which must determine this dispute are, in my view, the following:
1. In the area of appointments and promotions, in the absence of gross unreasonableness which leads the Court or the CCMA to draw an inference of mala fides, the CCMA or Court should be hesitant to interfere with the exercise of management’s discretion.
2. In drafting the unfair labour practice provision, the legislature did not intend to require arbitrating Commissioners to assume the roles of employment agencies. The Commissioner’s function is not to ensure that employers choose the best or most worthy candidates for promotion, but to ensure that, when selecting employees for promotion, employers do not act unfairly towards candidates.
3. The relative inferiority of a successful candidate is only relevant if it suggests that the superior candidate was overlooked for some unacceptable reason, such as those listed in section 6 of the EEA (Employment Equity Act 55 of 1998).
4. The division of the unfair labour practice jurisdiction between the Labour Court and the CCMA indicates that the legislature did not intend Commissioners to concern themselves when deciding disputes relating to promotion with the reasons why the employer declined to promote the applicant employee, but rather with the process which led to the decision not to promote the employee when selecting a candidate for promotion are relevant only insofar as they shed light on the fairness of the process.”
See also Cullen and Distell (Pty) Ltd  8 BALR 834 (CCMA).”
11. As was said in Public Servants Association obo Dalton & Another v Department of Public Works  9 BALR 1177 (CCMA) at 118 F–G, an employee will only be considered for promotion by the CCMA, or for that matter by an arbitrator, if he or she shows both unfair conduct on the part of the employer as well as that he or she would have been promoted, but for that unfair conduct. There must be a causal connection between the unfair conduct proved and the failure to promote the employee ( – see also Garbers, Contemporary Labour Law, Vol 9, No 3 of October 1999 at p30 and the cases cited there.)
12. One has to look at the matter SA Police Service v SSSBC, Robertson NO & Noonan case no P426/08, Cheadle AJ at  held:
“(a) There is no right to promotion in the ordinary course; only a right to be given a fair opportunity to compete for a post.
(b) Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice.
(c) The employee is not denied the opportunity 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.
(d) As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.”
13. On Appeal in, Noonan v Safety & Security Sectoral Bargaining Council and others  9 BLLR 876 (LAC), the LAC indicated that there must be a causal connection between the consequences of the procedural irregularity (omission) and its unfair effect on the promotion process.
14. I pause at this juncture to emphasize as an arbitrator in such disputes, my job is not to evaluate each candidate and determine who the best candidate is. That is a job of the interview panel. I’m required to determine whether unfair labour practice was committed when the applicant was not shortlisted. The question remains, was the applicant afforded a fair opportunity to compete for the position.
15. The evidence tendered by the respondent is that they failed to shortlist the applicant in that she failed to attach to her application form her Standard 10 certificate and in the Educator Employment Profile Form and at paragraph 17.2 ,the applicant indicated as it relates to her a Postgraduate Certificate in Education qualification she did Educational Law. This information did not correspond with the subjects taken by the applicant as contained in her academic record. She also failed to complete paragraph 19 in that she failed to indicate her highest REQV level and her highest NQF level she had achieved as it relates to qualifications and short courses and certificates. Furthermore, at paragraph 20.6 she failed under the heading, Basic Financial Management to record her skill level for that category. The instruction when it comes to completion of the form is that the form combines information in the standard application form and standard CV information into one employment profile form. Candidate must place an X in the blocks where applicable.
16. The applicant did not attach the standard 10 certificate in that that certificate had been lost. She did however attach a statement issued by the Department of Basic Education and Training wherein it is recorded that the statement is issued in lieu of a certificate which had been lost or destroyed. The statement further confirms and certifies that according to the records of the Department, the Standard 10 Certificate General Group dated 1 January 1988 was issued to Ndumiso Victoria Nomathemba (the applicant, my emphasis) and the subjects passed is recorded therein. As far as I’m concerned, this statement is issued in lieu of a certificate which had been lost or destroyed and this must suffice. The failure of the applicant to attach a Standard 10 certificate considering the submission of a statement by the Department of Basic Education and Training cannot be a justifiable reason on its own not to shortlist the applicant.
17. As it relates to applicant not completing her employment profile form I cannot falter the respondent in not shortlisting the applicant. The reason therefore, considering the post in question, HOD and the fact that the post is a promotion post, the manner in which an application form is completed is a reflection on the candidate. Where candidates do not complete application forms completely and properly it reflects on the competence of the candidate to perform administration work. It shows that a candidate is not strong when it comes to administration work as it relates to attentiveness to detail. A candidate is therefore compared as it relates administration to other candidates as to the completion of the application forms.
18. In the matter of NAPTOSA obo Lorraine Barnard and the Department of Education: Eastern Cape and others Case Number PSES 392-19/20EC the arbitrator, Willows A at paragraph [ 58 ] held as follows: “Applicant complained that she should have been short-listed as she met the minimum requirements for the Post. However, before one is short-listed, one has to comply with the requirements including the submission of a duly completed and signed EDP01 form. Had the form been correctly completed, inclusive of REQV and NQF levels, then Applicant ought to have been short-listed and called to an interview. Her form was incomplete and omitted such information, therefore she failed to meet the necessary criteria set out in the advertisement and the resolution of the ELRC, thereby excluding herself.” At paragraph  the arbitrator held further “Her omission has been fatal to the application. This is most unfortunate but no blame can be placed on the 1st and 2nd Respondent. There are requirements and criteria for every application and the failure to comply therewith is fatal.”
19. I am therefore satisfied that the applicant was afforded a fair opportunity to compete for the position, unfortunately she submitted an incomplete application form and was therefore correctly so, not shortlisted. This is unfortunate in that she has excellent qualification and experience in teaching IsiXhosa and therefore she had the ability to be a competitive candidate.
20. The respondent, the Department of Education: Eastern Cape did not perpetrate an unfair Labour practice relating to promotion when they did not short list the applicant, Nomathemba Victoria Pule for the post of HOD.
21. The Applicant is not entitled to any relief.
Name: Jonathan Gruss