Award  Date:

14 July 2021

Panellist: Khuduga Tlale
Case Reference No.: ELRC313&314-20/21EC
Date of award: 14 July 2021


In the matter between:


Malerato E Thabatha & Thandile Makibeni Applicants

And

Department of Education – Eastern Cape 1ST Respondent

NC Retjie 2ND Respondent

ARBITRATION AWARD

Details of hearing and representation

1. The arbitration hearing between Malerato E Thabatha and Thandile Makibeni (“the Applicants”) and Department of Education – Eastern Cape (“the 1st Respondent”) and Ms. NC Retjie (“the 2nd Respondent”) was held on 18 May 2021 and concluded on 08 July 2021 at the 1st Respondent’s offices in Aliwal North. The Applicants appeared in persons and Mr. FJ Nevi, SADTU shop steward represented them. Ms. N Sikithi, Assistant-Director: Labour Relations, represented the 1st Respondent and, Ms. T Mbotja, SADTU fulltime shop stewards, represented the 2nd Respondent.

2. These proceedings were digitally recorded.

Issues to be decided

3. The issue to be decided is whether the 1st Respondent had committed an unfair labour practice by failing to promote the Applicants into the disputed position.

Background to the dispute

4. The 1st Respondent advertised the position of a Deputy Principal (PL3) at Egqili Secondary School with post reference number volume 2 of 2020 with the closing date of the 24 of February 2020. The Applicants occupies the position of an Educator (PL1) when they applied for the said position. The 2nd Respondent occupies the position of an Educator (PL2) when she applied for the said position. Both the Applicants and the 2nd Respondent met the requirements of the position as per the advertisement. The Applicants were not shortlisted and the 2nd Respondent was shortlisted. The 2nd Respondent was promoted to the position of the Deputy Principal at Egqili Secondary School with effect from 01 October 2020.

5. The Applicants referred an unfair labour practice dispute relating to promotion to the Council alleging that their non-promotion was procedurally and substantively unfair. They sought the whole selection process be null and void. The dispute was not resolved at conciliation and it was referred for an arbitration.

6. The parties submitted a bundle of document and it was marked bundle “A”, “B”, “C”, “D” and “R”.

Survey of Evidence

Applicant

First Witness: Ms. Malerato Eunice Thabatha

7. The witness testified under oath that she was the Applicant in this matter. She has a teaching experience of twenty-five (25) years. She was teaching grades 8-12 at Egqili Secondary School. She has a diploma in Education, Bachelor of Arts and leadership management course. She qualified for the position as per the advertisement. She found it not fair for not been shortlisted for the said position. It was not for the first time she applied for the same position and she was previously shortlisted. The 1st Respondent was not consistent when they conducted the selection processes.

8. On 25 January 2020, there was a meeting for profiling of subjects and the minutes of that meeting was taken by the 2nd Respondent. They had staff establishment of more than twenty but only twenty educators attended the meeting. The 1st Respondent overlooked the curriculum of the school and there was no specific subjects attached to the advertised position. The position need a five (5) years’ experience and there was no law that says Educator (PL1) could not be shortlisted and promoted to PL3 position.

9. The panel members did not form a quorum when the shortlisting process was conducted. The minutes of the shortlisting are not the same. There were candidates who qualified to be shortlisted but they were left behind. There was a recording of the shortlisting meeting that says if the panel members’ shortlist another candidate, they must also be shortlisted. This selection process was predetermined. The shortlisting criterion relating to age was a discriminating because she turned the age of fifty-one (51) years in the year 2020. The 2nd Respondent falls on the age group of between 30-50 years. As the Educator (PL1) she was a leader with her experience. There was no good working relationship at their school. Mr. Ngcwangu was the favourite candidate for the said position but he was not shortlisted because of the School Governing Body (“SGB”). The 2nd Respondent was promoted because the preferred candidate was not shortlisted.

1st Respondent

10. Under cross-examination she stated that she was having a Bachelor of Arts when she applied for the said position and she was teaching grade 8. Mr. Ngcwangu was the one who was taking the minutes of the meeting and he was conflicted. Mr. Nkomana, Education Development Officer (“EDO”) said according to his knowledge the SGB did not form a quorum. According to the criteria, all the candidates who were shortlisted were less than fifty (50) years. It came to their knowledge that if the preferred candidate must be shortlisted, they also need to be shortlisted. She heard it from the chairperson of the SGB. She did not say the 2nd Respondent was not qualify to be shortlisted. She did not say she was better than the 2nd Respondent.

2nd Respondent

11. The 2nd Respondent representative stated that he had no questions for the witness.

12. Under re-examination she stated that the chairperson of the SGB could attest to the discussion of the shortlisting meeting.

Second Witness: Mr. Thandile Makibeni

13. The witness testified under oath that he was the Applicant in this matter. The school favours individuals when coming to the promotional posts. The learners are not benefitting from the people who are promoted by the school. The former principal, once said they would not be promoted in the school. He has a teaching experience of twenty-five (25) years.

14. There was a profiling meeting at the school on 21 January 2020 and the person who took the minutes of the meeting was the preferred candidate for the said position. The curriculum needs of the school was not taken into consideration during that meeting. The advertisement mentioned stated subjects to the said position. Phase 4 of the criteria wanted the candidates that were between 30 and 50 years old. This criteria was done deliberately to side-line him. The shortlisting criteria was not in terms of the 1st Respondent policy.

15. He was not sure whether the 1st Respondent followed the selection processes to the letter. The shortlisting criteria must not discriminate but phase 4 of the criteria was discriminating. He produced quality results at the school but that effort was ignored by the 1st Respondent. He went extra miles for the learners. The 1st Respondent promoted the people favoured by the school management. He was not shortlisted intentionally because Mr. Ngcwangu influenced the shortlisting process.

1st Respondent

16. Under cross-examination he stated that the minutes of the meeting held on 21 January 2020 was taken by Mr. Ngcwangu. Mr. Ngcwangu was conflicted because he was the candidate of the said position and he was the one who was favoured for the said position. There was a recording device of the chairperson of the SGB about the shortlisting process. The chairperson said if they want to shortlist Mr. Ngcwangu as PL1, they must also shortlist other PL1 educators who applied. They were informed by the SGB Chairperson of what transpired during the shortlisting process. Mr. Ngcwangu was not shortlisted for the said position. There was no law that says no PL1 educator could be shortlisted and/or promoted to the position of a deputy principal. If the position was not tailored for somebody, the specific subjects could have been stated in the advertisement. He was not teaching grades 8-12 when he applied for the said position.

2nd Respondent

17. Under cross-examination he stated that the position was tailor made for Mr. Ngcwangu because he took the minutes of the profiling meeting. The shortlisting criteria did not accommodate him based on age. He was not shortlisted because he was an Educator (PL1).

Third Witness: Mr. Khayalomzi Ralarala

18. The witness testified under oath that he is the regional secretary of Congress of South African Trade Unions (“COSATU”). The Applicants’ came to him about the filling of the position in dispute. There was a nepotism and corruption happening at Egqili Secondary School. The Applicants’ qualified to be shortlisted for the said position. The Applicants’ were excluded for attending the profiling meeting.

1st Respondent

19. Under cross-examination he stated that he was told how profiling was done. He stated that he was not part of the shortlisting processes. He was doing oversight as COSATU office bearer.

2nd Respondent

20. Under cross-examination he stated that he was not provided with the outcome of the shortlisting processes.

1st Respondent

First Witness: Ms. Noluntu Ntano

21. The witness testified under oath that the school had a profiling meeting for the subjects that were going to be attached on the post in dispute. Everyone was invited for the meeting but the Applicants’ did not attend. The shortlisting process was held on 07 August 2020. The trade unions were invited. They received twenty (20) application forms. The shortlisting panel set a criteria of five (5) phases. The first phase was looking for the candidates that occupied the post of an educator PL2. From twenty (20) application forms, six (6) were eliminated that included the Applicants’ because they were educators’ PL1. The Applicants’ were not treated unfairly and they were teaching grades 8-9 not grades 8-12.

2nd Respondent

22. Under cross-examination she confirmed that the first phase of the shortlisting process was looking for the candidates that occupied the position of an educator PL2.

Applicants’

23. Under cross-examination she stated that she was SGB member for the educators’ component. She was the panel member of the shortlisting process. Their criteria was fair to all the candidates.

Second Witness: Ms. Nompumelelo Ramaheshane

24. The witness testified under oath that she was SGB member for parents’ component. She was the panel member of the shortlisting process. Their criteria was fair to all the candidates. The shortlisting process was held on 07 August 2020 and the trade unions were invited. They received twenty (20) application forms. The shortlisting panel set a criteria of five (5) phases. The first phase was looking for the candidates that occupied the position of an educator PL2. From twenty (20) application forms, six (6) candidates were eliminated that included the Applicants’ because they were educators’ PL1. The Applicants’ were not treated unfairly and they were teaching grades 8-9 not grades 8-12.

2nd Respondent

25. Under cross-examination she stated that they did not have any person in mind when they were conducting the selection processes. All the candidates were subjected to the criteria set by the shortlisting panel.

Applicants’

26. Under cross-examination she stated that there was nothing wrong with their criteria and no subjects were required for the said position. The Applicants’ were eliminated during phase 1 of the shortlisting process because they were educators’ PL1. The Applicants’ application forms were not considered for phases 2-5 because they were eliminated at phase 1.

27. Under re-examination she stated that phase 1 of the shortlisting criteria was looking for an educators’ who were on PL2 and six (6) candidates were eliminated during phase 1 that included the Applicants’.

Survey of Arguments

Applicants’

28. The Applicants’ representative stated that the Applicants’ are disputing not been shortlisted for the said position. The shortlisting criteria was not in compliance with the Personnel Administrative Measures (“PAM”). The 1st Respondent ignored PAM deliberately to disadvantage the Applicants’. The 2nd Respondent application form for employment was not completed properly. The 2nd Respondent did not attach her academic records of her qualifications. The pages of the Applicants’ curriculum vitae were not all submitted to the proceedings. The Applicants’ wanted to know why they were not shortlisted. The Applicants’ sought the promotion of the 2nd Respondent be nullified and the selection process to start afresh.

1st Respondent

29. The 1st Respondent representative stated that the Applicants’ met the post requirements and they were eliminated by the first phase of the shortlisting criteria. The Applicants’ were not targeted to be excluded from the selection processes. The 1st Respondent did not commit any unfair labour practice against the Applicants’.

30. The 2nd Respondent representative stated that they did not have the closing arguments.

Analysis of evidence and arguments

31. Section 186(2)(a) of the Labour Relations Act, 66 of 1995, as amended (“the Act”), states that an unfair labour practice is any unfair act or omission that arises between an employer and an employee involving-

• Unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to benefits to an employee.

32. The Applicants’ were not shortlisted for the said position and had they been shortlisted and been successful their appointment would have constituted a promotion. The 2nd Respondent was joined as a party to the proceedings. Promotion is an area of managerial prerogative unless the Applicants’ can prove bad faith or improper motives were present which were neither alleged nor proved by the Applicants’.

33. It is not the panellist’s function or responsibility to choose the best candidate for promotion for the 1st Respondent but simply to ensure that in selecting candidates for promotion, the 1st Respondent does not act unfairly. All that the 1st Respondent was required to do in this proceeding was to show that it had a rational basis for its decision.

34. The Applicants’ application met all the post requirements but they were not shortlisted. It is trite that the 1st Respondent has an obligation to act fairly towards the Applicants’ in the selection and promotion process, but apart from that, it is the prerogative of the 1st Respondent whom it intends to appoint (See Department of Justice v CCMA & Others (2004) 13 (LAC). In casu,, the Applicants’ has failed to substantiate their claims that they were better candidates. They must in addition, prove that they were better than any of the candidates applying for the position. It is the Applicants’ version that they are not disputing the promotion of the 2nd Respondent.

35. The Applicants’ application were eliminated at phase 1 of the shortlisting processes. The 1st Respondent decision for not shortlisting them, was reasonable due to the fact that they did not meet the criteria of phase 1 shortlisting process. The phase 1 shortlisting criteria was looking for a candidates who occupied an educator PL2 because the said position was the management post. The Applicants’ were educators’ PL1, therefore, they did not qualify to be shortlisted. The crux of the matter is that the Applicants’ has failed to substantiate their claims that they were subjected to unfair conduct by the 1st Respondent.

36. The Applicants’ unfairness case has a significant difficulty from the outset in trying to convince me that indeed the 1st Respondent, especially the school management, played a critical role to deny them an opportunity for promotion in the advertised position. I have also considered their evidence during the arbitration proceedings so as to establish whether there was any undue interference by the 1st Respondent or the school management during the selection processes. I could not find any undue interference by the 1st Respondent and the school management during the selection processes.

Conclusion

37. In these circumstances, the Applicants’ has failed to proof that the 1st Respondent has committed an unfair labour practice in relation to the promotion.

Award

38. The Applicants’ has failed to proof that the 1st Respondent has committed an unfair labour practice in terms of Section 186(2)(a) of the Act, in relation to promotion.

39. The application is dismissed.

Signature: _____________________
ELRC Panelist: Khuduga Tlale

ELRC 302 -20 /21 NW