ELRC644-20/21 EC
Text
ELRC602-20/21EC
Text
Award Date:
13 October 2021
Case Number: ELRC602-20/21EC
Commissioner / Panelist: Ali Ncume
Date of Award: 13 October 2021
In the ARBITRATION between
MS VAALTYN
(Union/Applicant)
And
DEPARTMENT OF EDUCATION EASTERN CAPE
(First Respondent)
MR JACOBS
(First Respondent)
DETAILS OF HEARING AND REPRESENTATION
1. This matter was set down for arbitration on 01 June 2021 and on 24 August 2021 (virtually on Zoom) under the auspices of the Education Labour Relations Council (“ELRC”). The Applicant, Ms Vaaltyn (“the Applicant”), despite appearing in person, was represented by Adv Blundin (“Blundin”), in his capacity as an advocate, there and then instructed by the Applicant’s attorneys of record, being Ashley Meyer Attorneys. The First Respondent, being the Department of Education Eastern Cape (“the First Respondent”), was represented by Mr Hector (“Hector”), in his capacity as a labour representative of the First Respondent. The Second Respondent, being Mr Jacobs (“the Second Respondent”), represented himself in his personal capacity. It should be noted that the Second Respondent was joined to this dispute as the “successful candidate”.
2. The parties hereto submitted their bundle of documents electronically. It should be noted that the Applicant’s bundle of documents only consisted of the Applicant’s Curriculum Vitae. The arbitration hearing was digitally and manually recorded.
THE ISSUE TO BE DETERMINED
3. The issue concerns an alleged unfair labour practice relating to promotion. I must decide whether the First Respondent’s conduct and/or omission in promoting the Applicant (if any), amounts to an unfair labour practice as set out in section 186 (2)(b) of the Labour Relations Act, 66 of 1995, as amended (“LRA”).
BACKGROUND
4. There is no dispute regarding the background of this dispute. The parties agreed to same in the pre-arbitration Therefore, for the purposes of this arbitration award, it would be irrational and/or illogical to discuss the background of this matter.
THE APPLICANT’S EVIDENCE
5. The Applicant testified under oath. The Applicant submitted that she has been a principal since 2007. To date, she has been a principal for 14 years. The Applicant applied for the vacant principal position in Lingcom Primary School. According to the Applicant, this is and/or was a promotion post because she is currently in a principal position which is P2 (grading – less learners and educators). At Lingcom Primary School, the principal position is P4 (grading – more learners and educators). The school is bigger, and the salary is more. The Applicant testified that all employment of educators falls under the Employment of Educators Act. The significance of the Employment of Educators Act, in particular section 7.1, provides that when making any appointment or the filling of any post, amongst other things, regard shall be given to redressing the past for the minorities. According to the Applicant she falls within the minority. She is a female and she has experience of 14 years and same ought to have been considered – “ability of the candidate”. The First Respondent was supposed to also consider her qualification.
6. According to the Applicant, the Second Respondent only has acting experience as a principal for 11 months. He did and/or does not have any principal experience, and this was one of the requirements for the position in question.
7. In addition to the above, the Applicant submitted that she does not know the members of the SGB on a personal level.
8. The Applicant submitted that she was invited to an interview. She was not given any explanation as to how the SGB would finalise the interview process. They just said they would ask few questions [page 29 of the First Respondent’s bundle of documents]. According to the Applicant, they were first expected to do a power-point presentation regarding their vision for Lingcom Primary School. The second question was a financial question. The Applicant submitted that for question 3 [page 42 of the First Respondent’s bundle of documents], the Second Respondent was scored: 3, 5, 4, 4, 4 (by the panellists). When considering question 3, as an experience principal who is dealing for 14 years with finances, the Applicant submitted that she was scored: 3, 4, 3, 3, 4 (by the panellists). The Applicant submit that she provided a better answer than the First Respondent when considering the minutes of the interview [page 30 of the First Respondent’s bundle of documents]. She explained the relevant documents the principal needs to know. The Second Respondent failed to mention all the documents you need to know as a principal. The Applicant submitted that one needs to know financial policies and/or other documents, financial management and planning. However, when considering the Second Respondent's answer to the same question [page 36 of the First Respondent’s bundle of documents], according to the Applicant it does not make sense.
9. Moreover, the Applicant made reference to question 5 in the interview [page 29 of the First Respondent’s bundle of documents]. According to the Applicant, when comparing her answer [page 31 of the First Respondent’s bundle of documents], with that of the Second Respondent [page 36 of the First Respondent’s bundle of documents], she answered the question best. Despite this, the Second Respondent was scored: 3, 4, 3, 3, 3 and the Applicant was scored: 3, 2, 3, 3, 4. The Applicant emphasised that the scores were bias because the Second Respondent was acting, and he had an advantage. The interviewing panel was subjective and not objective.
10. Furthermore, the Applicant made reference to question 4 in the interview [page 29 of the First Respondent’s bundle of documents]. The same issue transpired. The Applicant reiterated that she explained and/or answered this question better than the Second Respondent. Despite this, the Second Respondent was scored: 3, 4, 3, 3, 4, and the Applicant was scored: 3, 4, 3, 3, 4.
11. When considering the final marks, the Applicant scored 161 and the Second Respondent scored 175. A recommendation was made by Ms. Daniels and supported by Ms. Pietersen. The entire panel confirmed the recommendation. The Applicant submitted that there was no dialogue at all regarding what requirements they needed for the post [page 38 of the First Respondent’s bundle of documents]. They did not even consider section 7.1 of the Employment of Educators Act.
12. The Applicant submitted that her experience was never considered by the panel. The panel was not fair, when considering qualifications. The Applicant emphasised that her qualifications all include “management”. The Applicant submitted that if section 7.1 of the Employment of Educators Act was considered she would have been appointed. The panel knew the Second Respondent as they had been working with him. The Applicant seeks that the appointment of the Second Respondent be set aside and she be appointed in the post.
13. During cross-examination, the Applicant confirmed that she is aware of the recruitment procedure and/or interview set-up. The Applicant further stated that the interviewing panel consists of educators, non-teaching staff, and the parents. They were all asked the same questions during the interviews. The Applicant submitted that there were trade unions present during the interview.
14. The Applicant emphasised that she lodged the dispute to the ELRC because of her experience and since she is a woman. She feels as if she was the better person. Hector put it to the Applicant that she was not in the interview of the Second Respondent and thus she cannot comment on what the Second Respondent stated during his interview. The Applicant conceded to same. The Applicant further confirmed that just because she is a principal same does not mean she should have automatically be appointed / make her a better candidate, but she does possess the experience and it was supposed to be considered. Hector put it to the Applicant that just because the minutes of the interview do not reflect something it does not mean that it was not discussed during the interview. The Applicant did not comment to this.
15. Hector referred the Applicant to page 15 of the First Respondent’s bundle of documents (the advert). According to the advert, the Applicant confirmed that the requirements for the post were “all learning areas”. Hector put it to the Applicant that job requirements are set per school and on that basis the Second Respondent qualified to be interviewed for the post. The Applicant confirmed that the Second Respondent qualified for the position.
16. Furthermore, it transpired during cross-examination that no irregularities were raised by the trade unions during the interviews. The Applicant is a member of both the trade unions which were present during the interviews. Both the trade unions confirmed that the process was “well done” and accepted the recommendation.
17. During re-examination, the Applicant stated that the trade unions attended the interviews to observe and not score. They only dealt with procedural fairness and not substantive issues. The main issue is that the interviewing panel did not apply the principle of fairness.
THE FIRST RESPONDENT’S EVIDENCE
18. The First Respondent’s witness is and/or was Ms. Singeni (“Singeni”), in her capacity as a Circuit Manager at Lingcom Primary School. Singeni testified under oath. She submitted that based on her role, she manages the appointment of principals in her circuit; she forms part of the committee which deals with sifting of applications; she is also involved in the training of SGBs in appointments and recommendations etc.
19. According to Singeni, the recruitment procedure in this particular post was done fairly and without prejudice. The criteria and the questions which were used were fair and non-discriminatory. The candidates were asked the same questions. The trade unions were part of this process and parties were given an opportunity to express themselves on how they found the interview – they all confirmed they were “happy”. The trade unions agreed and signed off on the process (“they signed off everything”).
20. Moreover, Singeni submitted that the interviewing panel gave regards to section 7.1. of the Employment of Educators Act. Before the recommendation, the employment equity grid was completed. The staff component of the school was considered. The Applicant was not recommended for the position.
21. During cross-examination, Blundin put to Singeni the principle enshrined in section 7.1 of the Employment of Educators Act (i.e. the ability of the candidate / the employment of females) was not applied. The Applicant was the most suitable candidate. Singeni submitted that the ability of the candidate was considered, as well as the need to redress. This was done holistically. According to Singeni, section 7 of the Employment of Educators Act was considered throughout the interview and not at a particular stage.
22. Blundin put it to Singeni that the minutes of the interview do not make any reference to the consideration of section 7 of the Employment of Educators Act. If it was considered, the interviewing panel would have considered that the Applicant was the only female and she had more experience than the person who was appointed. Singeni did not comment on this.
23. In addition to this, Singeni confirmed that the Second Respondent was not a principal when he was appointed. She also confirmed that the Applicant had 14 years’ experience at the time of making the application and they both met the requirements. According to Singeni, the scores showed that the Second Respondent was the best candidate and/or the manner he articulated himself during the interview.
24. Blundin further put it to Singeni that the Second Respondent knew the panel members, therefore he could have been favoured. Singeni submitted that she cannot comment on the integrity of the interviewing panel. According to her, the interviewing panel did not make reference to favouring a person during the interviewing process.
ANALYSIS OF EVIDENCE
25. In Buffalo City Public FET College v CCMA and others (P 372/12) [2016] ZALCPE 18 (handed down on 04 November 2016), it was held that in unfair labour practice disputes, particularly in those relating to promotions, the onus is on the employee to prove that he / she is suitable and better candidate for the position.
26. In IMATU obo Visagie v Mogale City Municipality (JR 86/15) [2017] ZALCJHB 432 (handed down on 20 November 2017) it was held that the law requires the employee to show the existence of the conduct or decision complained of. Therefore, the onus rests with the employee. It follows that if the employee is challenging the process and that decision or conduct by the employer is not established by the employee, then that is the end of the matter.
27. In City of Cape Town v SAMWU obo Slyvester and others (2013) 34 ILJ 1156 (LC); [2013] 3 BLLR 267 (LC) it was held, with reference to Aries v CCMA and others (2006) 27 ILJ 2324 (LC), that the overall test is fairness. In deciding whether the employer acted fairly in failing or refusing to promote the employee it is relevant to consider the following:
a) whether the failure or refusal to promote was caused by unacceptable or invidious consideration on the part of the employer or
b) whether the employer’s decision was arbitrary, or capricious, or unfair; or
c) whether the employer failed to apply its mind to the promotion of the employee; or
d) whether the employer’s decision not to promote was discriminatory; or
e) whether the employer’s decision not to promote was motivated by bad faith; or
f) whether there were insubstantial reasons for the employer’s decision not to promote; pr
g) whether the employer’s decision not to promote was based upon a wrong principle; or
h) whether the employer’s decision not to promote was taken in a biased manner.
28. In addition to the above, it should be noted that there are limited grounds on which a commissioner may interfere with a discretion which has been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed. It only ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised [See: Aries case]. An employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner.
29. In Sun International Management (Pty) Ltd v CCMA and others (JR 939/14) LC (handed down on 18 November 2016) it was held that an employee must not only show that he was the suitable candidate for consideration, but that he was the best candidate.
30. I considered the above case law in conjunction with the submissions which were made by the parties hereto, it has been established that the Applicant, in attempting to prove that she was the suitable / best candidate, is relying on the minutes of the interviews. The Applicant’s entire case rests on the minutes of the interview. In other words, the Applicant alleges that she is and/or was the most suitable / best candidate solely by comparing her answers in the interview with those of the Second Respondent, as captured in the minutes of the interview. Is it logical and/or rational for the Applicant to suggest that the minutes of the interview are a verbatim of actually what was said during the interview?
31. It is and/or was the Applicant’s own evidence that there are thing which she stated during the interview which are and/or were not captured in the minutes thereof. Does this not imply that the minutes are not a transcript of the interview? It is my view that it does. Therefore, the Applicant, in establishing unfairness on the part of the First Respondent, cannot rely solely on the minutes of the interview. It is common cause that the Applicant was not present during the Second Respondent’s interview and thus does not know how the Second Respondent answered the questions during his interview. She only has sight of the minutes and this, on its own, is not a verbatim of the Second Respondent’s interview. It would be a bad proposition in law to suggest that.
32. In addition to this, the Applicant also submitted that the Second Respondent did not consider section 7 of the Employment of Educators Act prior to making the appointment. In justifying this, Blundin (in cross-examining Singeni) submitted that the minutes of the interview do not make reference to the interviewing panel considering section 7 of the Employment of Educators Act. This is aligned with my concern in paragraphs 30 and 31 hereof. Just because something is not noted in the minutes of the interview does not mean that it was not done. Singeni disputed this.
33. It should also be noted and/or highlighted that Singeni was present during the interviews. According to her, the interviewing panel did consider section 7 of the Employment of Educators Act throughout the entire process. They even completed an employment equity grid. I have no reason to doubt Singeni’s testimony. She tendered direct evidence as she was present during the interviews. It is illogical and/or irrational for the Applicant to suggest, as specifically mentioned in paragraphs 30 and 31 hereof, that the minutes are a verbatim of the interviews.
34. Moreover, the Applicant placed reliance on the allegation that the interviewing panel was bias because they knew the Second Respondent since he was already working in the school in question. As a result of this, the scoring was not fair (as suggested by the Applicant). I am not sure how the Applicant established that the Second Respondent does not deserve the scores he received during his interview as she was not present when the Second Respondent answered his questions. I take note that the Applicant makes reference to the minutes of the interview, which captured the Second Respondent’s answers (not verbatim). Hector did emphasise this issue – the minutes cannot be used to establish what the Second Respondent stated during his interview. The parties were interviewed separately. This is common cause. Therefore, it is my view that the Applicant cannot dictate what the Second Respondent ought to have scored during his interview as she was not present therein. The minutes could merely be a guidance but not a verbatim of the interview.
35. It could be that the interviewing panel knew the Second Respondent. However, in attempting to establish biasness on the part of the interviewing panel, the Applicant once again relied on the minutes of the interview. I have deliberated too much regarding the minutes of the interview and will not be dealing with same again herein.
36. It has also been established that both trade unions who were present during the interviews were satisfied with how the process was conducted by the First Respondent. The Applicant is a member of both these trade unions. It is common cause that the Applicant, together with the Second Applicant, met the requirements for the position in question; they both possessed the necessary qualification; however, the manner in which they articulated themselves during the interview resulted in the Second Respondent being the best candidate.
37. It is common cause that the Applicant had the most experience. Despite this, it is my view that she has failed to discharge the onus which rests upon her. On this basis, I find that the First Respondent did not commit unfair labour practice in not promoting the Applicant.
AWARD
38. The First Respondent’s conduct and/or omission in promoting the Applicant does not amount to an unfair labour practice as set out in section 186 (2)(b) of the Labour Relations Act, 66 of 1995, as amended (“LRA”).
DATED AND ELECTRONICALLY SIGNED IN GQEBERHA ON 13 OCTOBER 2021
Ali Ncume
ELRC COMMISSIONER
Commissioner / Panelist: Ali Ncume
Date of Award: 13 October 2021
In the ARBITRATION between
MS VAALTYN
(Union/Applicant)
And
DEPARTMENT OF EDUCATION EASTERN CAPE
(First Respondent)
MR JACOBS
(First Respondent)
DETAILS OF HEARING AND REPRESENTATION
1. This matter was set down for arbitration on 01 June 2021 and on 24 August 2021 (virtually on Zoom) under the auspices of the Education Labour Relations Council (“ELRC”). The Applicant, Ms Vaaltyn (“the Applicant”), despite appearing in person, was represented by Adv Blundin (“Blundin”), in his capacity as an advocate, there and then instructed by the Applicant’s attorneys of record, being Ashley Meyer Attorneys. The First Respondent, being the Department of Education Eastern Cape (“the First Respondent”), was represented by Mr Hector (“Hector”), in his capacity as a labour representative of the First Respondent. The Second Respondent, being Mr Jacobs (“the Second Respondent”), represented himself in his personal capacity. It should be noted that the Second Respondent was joined to this dispute as the “successful candidate”.
2. The parties hereto submitted their bundle of documents electronically. It should be noted that the Applicant’s bundle of documents only consisted of the Applicant’s Curriculum Vitae. The arbitration hearing was digitally and manually recorded.
THE ISSUE TO BE DETERMINED
3. The issue concerns an alleged unfair labour practice relating to promotion. I must decide whether the First Respondent’s conduct and/or omission in promoting the Applicant (if any), amounts to an unfair labour practice as set out in section 186 (2)(b) of the Labour Relations Act, 66 of 1995, as amended (“LRA”).
BACKGROUND
4. There is no dispute regarding the background of this dispute. The parties agreed to same in the pre-arbitration Therefore, for the purposes of this arbitration award, it would be irrational and/or illogical to discuss the background of this matter.
THE APPLICANT’S EVIDENCE
5. The Applicant testified under oath. The Applicant submitted that she has been a principal since 2007. To date, she has been a principal for 14 years. The Applicant applied for the vacant principal position in Lingcom Primary School. According to the Applicant, this is and/or was a promotion post because she is currently in a principal position which is P2 (grading – less learners and educators). At Lingcom Primary School, the principal position is P4 (grading – more learners and educators). The school is bigger, and the salary is more. The Applicant testified that all employment of educators falls under the Employment of Educators Act. The significance of the Employment of Educators Act, in particular section 7.1, provides that when making any appointment or the filling of any post, amongst other things, regard shall be given to redressing the past for the minorities. According to the Applicant she falls within the minority. She is a female and she has experience of 14 years and same ought to have been considered – “ability of the candidate”. The First Respondent was supposed to also consider her qualification.
6. According to the Applicant, the Second Respondent only has acting experience as a principal for 11 months. He did and/or does not have any principal experience, and this was one of the requirements for the position in question.
7. In addition to the above, the Applicant submitted that she does not know the members of the SGB on a personal level.
8. The Applicant submitted that she was invited to an interview. She was not given any explanation as to how the SGB would finalise the interview process. They just said they would ask few questions [page 29 of the First Respondent’s bundle of documents]. According to the Applicant, they were first expected to do a power-point presentation regarding their vision for Lingcom Primary School. The second question was a financial question. The Applicant submitted that for question 3 [page 42 of the First Respondent’s bundle of documents], the Second Respondent was scored: 3, 5, 4, 4, 4 (by the panellists). When considering question 3, as an experience principal who is dealing for 14 years with finances, the Applicant submitted that she was scored: 3, 4, 3, 3, 4 (by the panellists). The Applicant submit that she provided a better answer than the First Respondent when considering the minutes of the interview [page 30 of the First Respondent’s bundle of documents]. She explained the relevant documents the principal needs to know. The Second Respondent failed to mention all the documents you need to know as a principal. The Applicant submitted that one needs to know financial policies and/or other documents, financial management and planning. However, when considering the Second Respondent's answer to the same question [page 36 of the First Respondent’s bundle of documents], according to the Applicant it does not make sense.
9. Moreover, the Applicant made reference to question 5 in the interview [page 29 of the First Respondent’s bundle of documents]. According to the Applicant, when comparing her answer [page 31 of the First Respondent’s bundle of documents], with that of the Second Respondent [page 36 of the First Respondent’s bundle of documents], she answered the question best. Despite this, the Second Respondent was scored: 3, 4, 3, 3, 3 and the Applicant was scored: 3, 2, 3, 3, 4. The Applicant emphasised that the scores were bias because the Second Respondent was acting, and he had an advantage. The interviewing panel was subjective and not objective.
10. Furthermore, the Applicant made reference to question 4 in the interview [page 29 of the First Respondent’s bundle of documents]. The same issue transpired. The Applicant reiterated that she explained and/or answered this question better than the Second Respondent. Despite this, the Second Respondent was scored: 3, 4, 3, 3, 4, and the Applicant was scored: 3, 4, 3, 3, 4.
11. When considering the final marks, the Applicant scored 161 and the Second Respondent scored 175. A recommendation was made by Ms. Daniels and supported by Ms. Pietersen. The entire panel confirmed the recommendation. The Applicant submitted that there was no dialogue at all regarding what requirements they needed for the post [page 38 of the First Respondent’s bundle of documents]. They did not even consider section 7.1 of the Employment of Educators Act.
12. The Applicant submitted that her experience was never considered by the panel. The panel was not fair, when considering qualifications. The Applicant emphasised that her qualifications all include “management”. The Applicant submitted that if section 7.1 of the Employment of Educators Act was considered she would have been appointed. The panel knew the Second Respondent as they had been working with him. The Applicant seeks that the appointment of the Second Respondent be set aside and she be appointed in the post.
13. During cross-examination, the Applicant confirmed that she is aware of the recruitment procedure and/or interview set-up. The Applicant further stated that the interviewing panel consists of educators, non-teaching staff, and the parents. They were all asked the same questions during the interviews. The Applicant submitted that there were trade unions present during the interview.
14. The Applicant emphasised that she lodged the dispute to the ELRC because of her experience and since she is a woman. She feels as if she was the better person. Hector put it to the Applicant that she was not in the interview of the Second Respondent and thus she cannot comment on what the Second Respondent stated during his interview. The Applicant conceded to same. The Applicant further confirmed that just because she is a principal same does not mean she should have automatically be appointed / make her a better candidate, but she does possess the experience and it was supposed to be considered. Hector put it to the Applicant that just because the minutes of the interview do not reflect something it does not mean that it was not discussed during the interview. The Applicant did not comment to this.
15. Hector referred the Applicant to page 15 of the First Respondent’s bundle of documents (the advert). According to the advert, the Applicant confirmed that the requirements for the post were “all learning areas”. Hector put it to the Applicant that job requirements are set per school and on that basis the Second Respondent qualified to be interviewed for the post. The Applicant confirmed that the Second Respondent qualified for the position.
16. Furthermore, it transpired during cross-examination that no irregularities were raised by the trade unions during the interviews. The Applicant is a member of both the trade unions which were present during the interviews. Both the trade unions confirmed that the process was “well done” and accepted the recommendation.
17. During re-examination, the Applicant stated that the trade unions attended the interviews to observe and not score. They only dealt with procedural fairness and not substantive issues. The main issue is that the interviewing panel did not apply the principle of fairness.
THE FIRST RESPONDENT’S EVIDENCE
18. The First Respondent’s witness is and/or was Ms. Singeni (“Singeni”), in her capacity as a Circuit Manager at Lingcom Primary School. Singeni testified under oath. She submitted that based on her role, she manages the appointment of principals in her circuit; she forms part of the committee which deals with sifting of applications; she is also involved in the training of SGBs in appointments and recommendations etc.
19. According to Singeni, the recruitment procedure in this particular post was done fairly and without prejudice. The criteria and the questions which were used were fair and non-discriminatory. The candidates were asked the same questions. The trade unions were part of this process and parties were given an opportunity to express themselves on how they found the interview – they all confirmed they were “happy”. The trade unions agreed and signed off on the process (“they signed off everything”).
20. Moreover, Singeni submitted that the interviewing panel gave regards to section 7.1. of the Employment of Educators Act. Before the recommendation, the employment equity grid was completed. The staff component of the school was considered. The Applicant was not recommended for the position.
21. During cross-examination, Blundin put to Singeni the principle enshrined in section 7.1 of the Employment of Educators Act (i.e. the ability of the candidate / the employment of females) was not applied. The Applicant was the most suitable candidate. Singeni submitted that the ability of the candidate was considered, as well as the need to redress. This was done holistically. According to Singeni, section 7 of the Employment of Educators Act was considered throughout the interview and not at a particular stage.
22. Blundin put it to Singeni that the minutes of the interview do not make any reference to the consideration of section 7 of the Employment of Educators Act. If it was considered, the interviewing panel would have considered that the Applicant was the only female and she had more experience than the person who was appointed. Singeni did not comment on this.
23. In addition to this, Singeni confirmed that the Second Respondent was not a principal when he was appointed. She also confirmed that the Applicant had 14 years’ experience at the time of making the application and they both met the requirements. According to Singeni, the scores showed that the Second Respondent was the best candidate and/or the manner he articulated himself during the interview.
24. Blundin further put it to Singeni that the Second Respondent knew the panel members, therefore he could have been favoured. Singeni submitted that she cannot comment on the integrity of the interviewing panel. According to her, the interviewing panel did not make reference to favouring a person during the interviewing process.
ANALYSIS OF EVIDENCE
25. In Buffalo City Public FET College v CCMA and others (P 372/12) [2016] ZALCPE 18 (handed down on 04 November 2016), it was held that in unfair labour practice disputes, particularly in those relating to promotions, the onus is on the employee to prove that he / she is suitable and better candidate for the position.
26. In IMATU obo Visagie v Mogale City Municipality (JR 86/15) [2017] ZALCJHB 432 (handed down on 20 November 2017) it was held that the law requires the employee to show the existence of the conduct or decision complained of. Therefore, the onus rests with the employee. It follows that if the employee is challenging the process and that decision or conduct by the employer is not established by the employee, then that is the end of the matter.
27. In City of Cape Town v SAMWU obo Slyvester and others (2013) 34 ILJ 1156 (LC); [2013] 3 BLLR 267 (LC) it was held, with reference to Aries v CCMA and others (2006) 27 ILJ 2324 (LC), that the overall test is fairness. In deciding whether the employer acted fairly in failing or refusing to promote the employee it is relevant to consider the following:
a) whether the failure or refusal to promote was caused by unacceptable or invidious consideration on the part of the employer or
b) whether the employer’s decision was arbitrary, or capricious, or unfair; or
c) whether the employer failed to apply its mind to the promotion of the employee; or
d) whether the employer’s decision not to promote was discriminatory; or
e) whether the employer’s decision not to promote was motivated by bad faith; or
f) whether there were insubstantial reasons for the employer’s decision not to promote; pr
g) whether the employer’s decision not to promote was based upon a wrong principle; or
h) whether the employer’s decision not to promote was taken in a biased manner.
28. In addition to the above, it should be noted that there are limited grounds on which a commissioner may interfere with a discretion which has been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed. It only ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised [See: Aries case]. An employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner.
29. In Sun International Management (Pty) Ltd v CCMA and others (JR 939/14) LC (handed down on 18 November 2016) it was held that an employee must not only show that he was the suitable candidate for consideration, but that he was the best candidate.
30. I considered the above case law in conjunction with the submissions which were made by the parties hereto, it has been established that the Applicant, in attempting to prove that she was the suitable / best candidate, is relying on the minutes of the interviews. The Applicant’s entire case rests on the minutes of the interview. In other words, the Applicant alleges that she is and/or was the most suitable / best candidate solely by comparing her answers in the interview with those of the Second Respondent, as captured in the minutes of the interview. Is it logical and/or rational for the Applicant to suggest that the minutes of the interview are a verbatim of actually what was said during the interview?
31. It is and/or was the Applicant’s own evidence that there are thing which she stated during the interview which are and/or were not captured in the minutes thereof. Does this not imply that the minutes are not a transcript of the interview? It is my view that it does. Therefore, the Applicant, in establishing unfairness on the part of the First Respondent, cannot rely solely on the minutes of the interview. It is common cause that the Applicant was not present during the Second Respondent’s interview and thus does not know how the Second Respondent answered the questions during his interview. She only has sight of the minutes and this, on its own, is not a verbatim of the Second Respondent’s interview. It would be a bad proposition in law to suggest that.
32. In addition to this, the Applicant also submitted that the Second Respondent did not consider section 7 of the Employment of Educators Act prior to making the appointment. In justifying this, Blundin (in cross-examining Singeni) submitted that the minutes of the interview do not make reference to the interviewing panel considering section 7 of the Employment of Educators Act. This is aligned with my concern in paragraphs 30 and 31 hereof. Just because something is not noted in the minutes of the interview does not mean that it was not done. Singeni disputed this.
33. It should also be noted and/or highlighted that Singeni was present during the interviews. According to her, the interviewing panel did consider section 7 of the Employment of Educators Act throughout the entire process. They even completed an employment equity grid. I have no reason to doubt Singeni’s testimony. She tendered direct evidence as she was present during the interviews. It is illogical and/or irrational for the Applicant to suggest, as specifically mentioned in paragraphs 30 and 31 hereof, that the minutes are a verbatim of the interviews.
34. Moreover, the Applicant placed reliance on the allegation that the interviewing panel was bias because they knew the Second Respondent since he was already working in the school in question. As a result of this, the scoring was not fair (as suggested by the Applicant). I am not sure how the Applicant established that the Second Respondent does not deserve the scores he received during his interview as she was not present when the Second Respondent answered his questions. I take note that the Applicant makes reference to the minutes of the interview, which captured the Second Respondent’s answers (not verbatim). Hector did emphasise this issue – the minutes cannot be used to establish what the Second Respondent stated during his interview. The parties were interviewed separately. This is common cause. Therefore, it is my view that the Applicant cannot dictate what the Second Respondent ought to have scored during his interview as she was not present therein. The minutes could merely be a guidance but not a verbatim of the interview.
35. It could be that the interviewing panel knew the Second Respondent. However, in attempting to establish biasness on the part of the interviewing panel, the Applicant once again relied on the minutes of the interview. I have deliberated too much regarding the minutes of the interview and will not be dealing with same again herein.
36. It has also been established that both trade unions who were present during the interviews were satisfied with how the process was conducted by the First Respondent. The Applicant is a member of both these trade unions. It is common cause that the Applicant, together with the Second Applicant, met the requirements for the position in question; they both possessed the necessary qualification; however, the manner in which they articulated themselves during the interview resulted in the Second Respondent being the best candidate.
37. It is common cause that the Applicant had the most experience. Despite this, it is my view that she has failed to discharge the onus which rests upon her. On this basis, I find that the First Respondent did not commit unfair labour practice in not promoting the Applicant.
AWARD
38. The First Respondent’s conduct and/or omission in promoting the Applicant does not amount to an unfair labour practice as set out in section 186 (2)(b) of the Labour Relations Act, 66 of 1995, as amended (“LRA”).
DATED AND ELECTRONICALLY SIGNED IN GQEBERHA ON 13 OCTOBER 2021
Ali Ncume
ELRC COMMISSIONER