Award  Date:

05 August 2021

Case Number: ELRC683-19/20EC
Commissioner Mxolisi Alex Nozigqwaba


In the matter between

Nondlela Mirriam Gosani Applicant



and

Eastern Cape Department of Education First Respondent

Judith Thuthuzelwa Jonas Second Respondent

School Governing Body- Sikhothina Combined Primary School Third Respondent



Appearances: For the applicant: Mr Du-Wayne Stoltz (Randell& Associates);
For the first respondent: Mr Sakhiwo Kralo;
For the second respondent: Mr. T January (SADTU)
For the third respondent: Mr Simphiwe Kota (SGB Chairperson)
Arbitrator: Mxolisi Alex Nozigqwaba
Heard: 14 April 2021; 18 May 2021; 01 June 2021
Delivered: 05 August 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 virtually on 14 April 2021. On 18 May 2021 and 01 July 2021 it was held in Port Elizabeth at Randell and Associates offices. Parties agreed to this venue as there was a challenge of electricity at the Department of Education Nelson Mandela District Office. Ms Nondlela Mirriam Gosani (applicant) was represented by Mr Du-Wayne Stoltz, an attorney from Randell and Associates Attorneys. Eastern Department of Education (first respondent) was represented by its official, Mr Sakhiwo Kralo. The appointed incumbent in the contested position, Ms Judith Thuthuzelwa Jonas (second respondent), was represented by a SADTU official, Mr T. January. Sikhothina Combined Primary School (CPS) Governing Body (third respondent) was represented by its chairperson, Mr Simphiwe Kota.
2. At completion of the proceedings parties agreed to submit written heads of arguments by not later than 08 July 2021. Both parties submitted as agreed. I have considered these heads in penning this award.
ISSUE TO BE DECIDED

3. I have to determine whether any unfair labour practice relating to promotion was committed when the first respondent appointed the second respondent and overlooked the applicant in the Head of Division (HOD) post of Sikhothina CPS, and if so, issue the appropriate relief.
BACKGROUND TO THE ISSUE

4. This is a promotion dispute involving Sikhothina CPS HOD (post level 2, with commencing annual salary of R379 497.00) advertised in the first respondent’s Open Post Bulletin Volume 4 of 2019. Sikhothina CPS is under the Nelson Mandela District.

5. After the post was advertised, the applicant (post level 1 educator at Sikhothina CPS at that time), the second respondent (also post level 1 educator at the same school) and other candidates applied for the post. The second respondent was ultimately appointed to the position with effect from 01 October 2019.
6. The applicant's challenge to the post is that second respondent did not meet the set criteria for the position and should not have been shortlisted. There were also inexcusable discrepancies in the process leading to the appointment of the incumbent.
7. The applicant is therefore saying the first respondent’s action of shortlisting and ultimately appointing the second respondent even though she did not meet the set requirements of the position, and the discrepancies in the recruitment process, rendered the appointment substantively and procedurally unfair. The relief she is seeking is that the second respondent’s appointment be nullified and set aside and the recruitment process be restarted from shortlisting, or any appropriate relief allowed by section 193(4) of the Labour Relations Act 66 of 1995 (LRA).
8. The first and second respondent dispute that an unfair labour practice was committed and are saying the incumbent did meet the set criteria, and there was nothing wrong with the processes leading to her appointment.
SURVEY OF THE EVIDENCE AND ARGUMENTS

9. The applicant testified that after seeing the HOD post’s advert she applied and submitted her application with curriculum vitae and copies of qualifications (pages 28 to 49 of bundle A). She is a post level 1 educator and has 27 years’ experience as a teacher. Her qualifications are Senior Primary Teachers’ Diploma (SPTD), Advanced Certificate in Education (ACE) - Special Needs (UNISA), ACE- Arts and Culture (NMMU), and Computer Training in MS Windows and Outlook from Laerskool Susannah Fourie Primary (Pages 36 to 49 of A). She met the basic criteria set in the post advertisement, which was REQV 13 in teaching qualification, three years’ experience. When the shortlisting panel was conducting its shortlisting they agreed on additional criteria which was meant to shortlist the best candidates from those in the master list. The additional criteria as reflected in shortlisting minutes is management and leadership, computer training, Grade four to seven, all interssen subjects, extramural, music and sport (page 54 of A). The applicant met the additional criteria as she has computer training and has a Certificate in Netball with National Umpire Associates (page 46 of A). She also has management and leadership experience. She does not understand why in the master list only SPTD is reflected as her academic qualification. The second respondent’s academic qualifications, on the other hand, are captured in the master list as SPTD and Bachelor of Arts (BA) (page 55 of A). The second respondent also has as hobbies music, reading and netball. It is common cause that she met the minimum requirement mentioned in the advertisement. What she did not have was computer training and qualification in music and sport and experience in management. She only mentioned music and netball as hobbies. She does not have any certificates for these hobbies. She therefore did not meet the additional requirements. The interview panel minutes ranked the applicant as number two and the incumbent as number one (page 57 of A). On the SGB Ratification Minutes the applicant is surprisingly ranked as number three and there is no explanation for that sudden change. This meant that had the incumbent decline the position the newly ranked number two, as per Ratification minutes, would have taken the position. It was put to the applicant that what was key was only the minimum requirements as reflected in the advertisement. Her answer was that the additional criteria was an important tool in getting to the minimum number of candidates to be shortlisted, and therefore had to be complied with.
10. Mr Rowarth Mlungiseleli Miggels (Sikhothina CPS principal) testified that the additional criteria was important as it took into account the curriculum needs of the school as well as approved profile submitted to the Department. An application which did not meet the additional criteria had to be put aside, and would not make it to the shortlist. He conceded that the second respondent did not meet the additional criteria and therefore should not have been shortlisted.
11. Mr Simphiwe Samuel Kota (SGB chairperson Sihkothina CPS) testified that he chaired the interview panel that set for the position at issue. After candidates meeting the minimum requirements had been put on the master list shortlisting process was conducted by the interview panel he chaired. The applicant, the second respondent and other three candidates were shortlisted. Only four attended the interviews, inclusive of the applicant and the second respondent. The latter was scored, the best and ultimately appointed to the position. In the Interview Minutes the second respondent was ranked as number one, while the applicant was ranked number two. In the Ratification Minutes, which were ultimately submitted to the District Office, the applicant was moved to number three. Mr Kota testified that the reason for this change was because after the panel finished interviewing her, she uttered threats saying she would take them on if she was not appointed as she believed that she was the best candidate. It was put to the witness on cross-examination that Mr Miggels, who had attended the processes as an observer had not mentioned these allegations. Also, this version was never put to the applicant to have a say on it. He also could not explain why the conduct so alleged was not put in the Interview Minutes and Ratification Minutes. When asked as to why the candidate without computer and experience in management (which was additional criteria) was shortlisted his answer was that what was important was a teacher with interssen subjects in grades four to seven.
12. The second respondent testified that she did have management experience and computer literacy qualification in addition to minimum requirements of the position. She has 29 years teaching experience. She, however conceded that evidence before the panel and before the arbitration did not show that she had management experience and computer literacy. She did not put computer training in her application because it was never mentioned as a minimum requirement. She does have computer training.
13. It was argued for the applicant that Personnel Administrative Measures, as amended (PAM) does not prevent the Department or the SGB from determining a higher threshold. This is what was done when the panel set an additional criteria of experience in management and leadership and computer training. In Khumalo and Another v The MEC for Edication, KZN , the Court held that: ‘The formulation and application of requirements for a particular post is a minimum prerequisite for ensuring the objectivity of the appointment process. Persons who do not meet the requirements for a post in the Public Sector ought not to be appointed.’ Uncontested evidence was led to the effect that the second respondent did not meet the adopted requirements for the post as advertised and as such should not have been shortlisted and ultimately appointed. The first respondent therefore committed an unfair labour practice against the applicant when it ultimately appointed her even though she did not meet the additional criteria requirements. The appointment of the incumbent should be reversed and the process be restarted from recruitment and selection.
14. It was argued by the first respondent that the candidates who made it to the short list met the minimum requirements of the position. In this short list was the applicant and the second respondent who had the required qualifications and have twenty nine years’ experience. There is no right to promotion. What is required is that the candidates should be given a fair opportunity to compete for the post in question. The applicant and the second respondent got that fair opportunity to compete for the position. The second respondent was fairly ranked number one after she had been scored higher than other candidate. The applicant’s claim should therefore be dismissed as there was no unfair labour practice committed.
15. No arguments were received from the third respondent.
ANALYSIS OF EVIDENCE AND ARGUMENTS

16. In scrutinizing the conduct of the employer, what needs to be ascertained mostly is whether fairness prevailed in the process which led to the appointment of the incumbent and non-appointment of the complainant. In Noonan v SSSBC and others the LAC held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for the post. Any conduct that denies an employee an opportunity to compete for a post constitutes unfair labour practice.
17. In the case at hand the incumbent, the applicant and other shortlisted candidates did meet the minimum requirements set out in the post advertisement. Yes, the interviewing panel did have authority in terms of clause B.5.4.8 of PAM to set out a criteria, which would assist it in getting five best candidates for the shortlist. In doing so, curriculum needs and the obligations of the employer to serving educators were amongst the requisite considerations. Management and leadership plus computer training were set out as additional criteria. The applicant testified that she did not include computer and management experience because it was not mentioned in the minimum requirements. She does have computer training and does have leadership experience. The applicant and the incumbent did get an opportunity to express their candidature. If the incumbent did not have the minimum qualifications I would definitely regard the appointment as flawed. In the case at hand, she did have minimum requirements, and her inclusion cannot be seen to have prejudiced the applicant. No evidence has been led to suggest that the incumbent was favoured based on capricious or sinister motives. The only issue is that she did not meet the additional criteria. She was in no position to have known that the panel would ex post facto require candidates to include qualifications which were never mentioned in the advert.
18. In the circumstances I find that no unfair labour practice had been committed.
19. On the issue of relegating the applicant from being number two to being number three I find that to be unfair. There was really no basis for that as there is nothing in the interview minutes suggesting that the applicant had uttered the alleged threat. No factual basis for this allegation was established. The applicant should have stayed as number two. No relief is competent to be made on this issue as it is no more than academic. This is because the incumbent took the position and the possibility of the second ranked candidate assuming it in the event of it being declined by the successful candidate is no longer there.
20. I therefore make the following award:

AWARD

21 The first respondent did not commit any unfair labour practice when it did not appoint the applicant to the HOD position under contest. The applicant is not entitled to any relief.


Signature:

Commissioner: Mxolisi Alex Nozigqwaba
Sector: ELRC

ELRC 302 -20 /21 NW