ELRC644-20/21 EC
Text
ELRC91-20/21 KZN
Award Date:
09 December 2021
IN THE ELRC ARBITRATION
BETWEEN:
MBAMBO, G.N “the Applicant”
and
DEPARTMENT OF EDUCATION – KWAZULU NATAL “the 1st Respondent”
KHOTSENG, N.N “ the 2nd Respondent”
ARBITRATION AWARD
Case Number: ELRC91-20/21 KZN
Last date of the arbitration proceedings: 25 November 2021
Date of the Award: 09 December 2021
ELRC Arbitrator: Lindiwe Makhanya
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601 E-Mail: gen.sec@elrc.co.za Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
1. This arbitration commenced on 23 April 2021, and after several sessions was finalised on 25 November 2021, at the Respondent’s premises, Durban Teachers Centre. It was held under the auspices of the Education Labour Relations Council (“the council”) ELRC in terms of section 191(5) (a) of the Labour Relations Act No.66 of 1995, as amended (“the Act”).
2. The Applicant, Mr. Gregory Njengabantu Mbambo, was represented by Ms. N.G. Thabethe, Union Official from SADTU and the Respondent, Department of Education-KwaZulu Natal, was represented by Mr. A. Preethpaul, Labour Relations Practitioner. The proceedings were digitally recorded.
PRELIMINARY ISSUES, JURISDICTION, and ISSUES TO BE DECIDED
3. No jurisdictional issues were raised.
4. I have to decide whether or not the First Respondent committed unfair labour practice by not appointing the Applicant.
5. The Applicant sought to be appointed to the position of the Departmental Head: Culture and Arts Post number 170.
BACKGROUND TO THE DISPUTE
6. The Respondent is the Department of Education located in Durban, KwaZulu Natal. The Applicant commenced his employment with the First Respondent on 14 January 2008 and is employed as an Educator (PL1). The Applicant applied for the position of Departmental Head: Culture and Arts (Post no. 170 as advertised in HRM Circular no. 36 of 2019) at Sithokozile High School. He attended the interview and was scored the highest but was not appointed to the position, instead, the Second Respondent (Ms. Khotseng) was appointed whereas she had scored lower than the Applicant.
SURVEY OF EVIDENCE AND ARGUMENT
7. Only the First Respondent submitted bundles of a document. The Applicant requested to use the same bundle. I will refer to it as “Common Bundle”
8. Both parties submitted their closing arguments on 02 December 2021.
THE APPLICANT’ CASE
9. Mr. Gregory Njengabantu Mbambo testified under oath that on 23 November 2019 he attended an interview for the position of Departmental Head: Culture and Arts and he scored the highest points ( 37.8) but was not appointed to the position instead Ms. Khotseng who scored 34.5 points was appointed. He referred to page 65 of the bundle, point 4.2.2.2 by stating that at the school where he was based, subjects like life orientation, and technology were grouped under culture and arts, this was confirmed before the position in question was advertised. The announcement was made by the former caretaker Principal, Mr. Kati during the staff meeting. After that meeting, Zondi, the former acting principal informed him that he had made an application at the circuit office for Life orientation to be grouped under culture and arts. When the position was advertised, Zondi told him to apply for the position and later validated his application forms.
10. According to him, he was qualified to be appointed to the position because he had majored in all three subjects at the University i.e., life orientation, technology and culture, and arts. He had also taught all three subjects and considered himself an expert in the field. He had taught life orientation for more than six years and was a subject head for life orientation and culture and arts.
11. He did not know why the First Respondent stated on the motivation letter page 57 that he did not have teaching experience for culture and arts subject because, during his studies, he went through a four-year training and had done his practical’s where he engaged learners in class. Khotseng did not teach culture and arts, she only taught technology as a subject, she did not qualify to be appointed to the position. He believed that he was discriminated against because the post was reserved for Khotseng and that his performance was not considered during an interview. The School Governing Board’s minutes on page 61 state clearly in isiZulu that it was their wish to appoint Khotseng.
12. During cross-examination, he conceded that he had never taught culture and arts but he was the subject head and that culture and arts is appearing in his academic record as one of the subjects he studied. He applied for the position because his application forms had been validated by Zondi, but when it was put to him that Zondi’s role in his application for the position was to check if his curriculum vitae had an original signature as stated on page 74, clause 5.6.1.1, he did not dispute it.
13. He said according to the needs of the school since he had been teaching life orientation which had been grouped under culture and arts he did qualify to be appointed to this position. He maintained that he considered himself as having teaching experience in culture and arts.
14. During re-examination, he maintained that when he asked Zondi to validate his application forms, Zondi had said that he met the requirements of the post. The school where he was based did not follow the grouping of subjects as per page 65 (job advertisement).
15. Mr. Bonginkosi Kati testified that he was employed as a Principal at Buhlebemfundo Secondary school but was previously an acting Principal at Sithokozile high school during 2018 and 2019. When he was still at Sithokozile high school he and the school management team wanted to group the subject life orientation with culture and arts. A request was sent to the circuit office for the departmental head: creative culture and arts vacancy, however, when the job advertisement was returned to them, life orientation was not included. He later submitted a request to have life orientation included, but on the final draft of the job advertisement, corrections had not been made.
16. Under cross-examination, he reiterated that the school management team decided to group life orientation and culture and arts because they are subjects that are related to each other. He conceded that an educator who has only taught life orientation would not be qualified to be appointed to the position in question.
17. He emphasized that the job had been incorrectly advertised as culture and arts, they had wanted to include life orientation as per the need of the school at that time, but the First Respondent did not change the advert to include life orientation even after they had sent a request.
18. During re-examination, he maintained that the successful incumbent in this position would be required to have two years of teaching experience in culture and arts.
19. Mr. Thabani Ndlovu testified that he was employed as a Head of the department: Commerce at Sithokozile high school. The school had culture and arts, technology, and life orientation grouped. Kati had informed him as Site Stuart that life orientation would move from humanities to culture and arts before the job was advertised.
20. There was no cross-examination.
21. There was no re-examination.
THE RESPONDENT’S CASE
22. Ms. Nothando Duma testified under oath that she was a member of the School Governing Body (SGB) at Sithokozile High school. She was part of the interview committee for the Departmental head culture and arts position.
23. The Applicant was shortlisted and interviewed for the position in question and obtained the highest score. Khotseng was ranked in the third position in terms of scoring, however, the SGB decided not to appoint the Applicant because he did not teach culture and arts. The Applicant was interviewed because according to his application forms, he met the requirements of the post. In his cv, it is stated that he taught life orientation, culture, and arts, however, Zondi, who was the resource person during the interviews had informed the committee that the Applicant did not teach culture and arts but was teaching life orientation which was not part of culture and arts at that time.
24. Khotseng was appointed because she previously acted as departmental head for culture and arts for two years, she had taught culture and arts, and technology, she referred to page 28.
25. Under cross-examination, she further elaborated that Zondi had informed them after the interviews that the Applicant did not meet the requirements of the post because he did not teach culture and arts.
26. When she was asked if Khotseng had studied culture and arts she said she did not know.
27. Kati attempted to take the Applicant’s subjects to be under arts and culture but when the bulletin or the job advert came, it did not include life orientation.
28. During re-examination, she maintained that the job required the successful candidate to have at least 2 years of teaching experience in culture and arts which the Applicant did not have, hence Khotseng was recommended by the SGB and later appointed by the First Respondent. The Applicant only taught life orientation and tourism which was not part of culture and art.
29. Mr. Lucky Zondi testified under oath that he was employed by the Respondent at Umqhele Secondary School but was previously employed at Sithokozile High School as an acting principal. The Applicant taught tourism and life orientation which did not fall under the department of culture and arts. He referred to page 54, the Applicant’s cv under teaching experience where subjects like tourism, life orientation, arts, and technology are listed but the Applicant did not teach culture and arts and technology at Sithokozile High School.
30. He admitted that he validated the Applicant’s application, but the Applicant had made an error by writing that he taught culture and arts on page 54. Khotseng qualified as she had teaching experience as required by the job advert, she was also the acting head; culture, and arts. As a resource person, it was his duty to advise the panel and the SGB that the Applicant did not have teaching experience in culture and arts.
31. He denied that the Applicant was a subject head at the school before the post in question was advertised. Kati had advised that life orientation would be grouped with culture and arts but it was implemented after the appointment of Khotseng.
32. Under cross-examination, he reiterated that the Applicant never taught culture and arts. He validated the Applicant’s application forms because the Applicant had studied culture and arts. He explained that when you validate the application forms it means that you check the requirements, it was not his duty to decide whether the Applicant qualified for the position or not.
33. He also reiterated that he informed the interview panel and the SGB that the Applicant did not have teaching experience in culture and arts. Once the job advertisement had been drafted and concluded by the circuit office, the school had no say but to comply with it.
34. When asked if Khotseng had taught culture and arts, he said as a resource person he did not make any decisions regarding the interviews but the job advertisement did accommodate a person who had acted in the position to be shortlisted. Khotseng had been teaching technology and had acted as a subject head: culture and arts.
35. During re-examination, he maintained that the Applicant was not appointed because he did not meet the requirements of the post, whereas Khotseng had taught technology and was acting head: culture and arts.
ANALYSIS OF EVIDENCE AND ARGUMENT
36. I have taken note of section 186(2) of the LRA, which states that an “unfair labour practice” means any unfair act or omission that arises between an employer and an employee. I read this section together with section 185 (b) of the LRA which states as follows; “Every employee has the right not to be: (b) subjected to unfair labour practice.
37. The applicant bears the onus to prove that he was subjected to an unfair labour practice related to promotion.
38. It was common cause that the Applicant had been scored the highest during an interview for Departmental Head: Culture and Arts position. It was also common cause that the Applicant was not appointed in the position, but Khotseng was appointed whereas she was scored third highest during an interview.
39. The Applicant disputed that he did not have teaching experience in culture and arts, on the other hand, the First Respondent argued that the Applicant was not appointed because he did not have teaching experience in culture and arts.
40. At the outset, it is important to state that I found that the Applicant was not a credible witness because he contradicted himself on numerous occasions; at first, he claimed that he had teaching experience in culture and arts because, during his studies, he had engaged learners, but during cross-examination, he conceded that he did not have teaching experience for this subject. Duma and Zondi’s evidence revealed that the Applicant was shortlisted because he had stated on his cv that he had taught culture and arts which was untrue. Also, the Applicant claimed that he was the subject head for culture and arts, but when Zondi testified that the Applicant was never a subject head for culture and arts during his time at Sithokozile High Schools his evidence was unchallenged.
41. The Applicant’s contended that he ought to have been appointed to the position because Kati had announced that life orientation and technology would be grouped with culture and arts before the job was advertised. The evidence presented revealed that each school was permitted to have its arrangements in terms of subject grouping, however, the circuit office had to approve it. The Applicant conceded that before the job was advertised, Zondi had informed him that an application had been sent to the circuit office to have the subjects grouped. The Applicant knew that the final draft of a job advertisement had to be approved by the Respondent, not Zondi or Kati.
42. The Applicant argued that Zondi was not supposed to validate his application forms if he did not meet the minimum requirements of the post. I note that according to the HRM Circular no 36 of 2019 (job advertisement), Zondi as a validating official was not required to validate the application forms of the applicant who did not meet the minimum requirement. The Applicant did not have two years of teaching experience in culture and arts. Zondi was aware of this, since his request to have the circuit office include life orientation was not granted. He ought not to have validated the Applicant’s application forms. More so, because he is the person who had approached the Applicant to apply for the position. Be that as it may, Zondi’s validation of the Applicant’s application forms did not imply that the Applicant ought to have been appointed even if he did not meet the job requirements.
43. When the final job advertisement did not include life orientation, the Applicant ought to have known that he did not meet the minimum requirements of the post. I agree with Kati’s testimony that the job was incorrectly advertised because it was not what they had requested at the circuit office, but the Applicant insisted that he was scored the highest during an interview, therefore he ought to have been appointed. Being scored the highest in an interview does not mean that you must be appointed to the position even if it is discovered that you do not meet the requirements, like in this case, the Applicant did not have two years of teaching experience in culture and arts as required by the job advertisement.
44. Despite the Applicant’s claim that according to the needs of the school, he ought to have been appointed to the position because he taught life orientation which had been grouped with culture and arts, the job advertisement did not suggest such because according to the HRM circular No 36 of 2019, culture and arts is a stand-alone subject, it is not grouped with life orientation. It would appear that Kati and Zondi did not succeed to persuade the circuit office to group these subjects. It is, therefore, cannot be correct for the Applicant to claim that he ought to have been appointed when he did not meet the requirements of the position.
45. The Applicant claimed that Khotseng did not meet the requirements of the position because she did not teach culture and arts. Duma’s evidence suggests that Khotseng had taught culture and arts at Batlokoa Secondary School during 2004 and 2005 as indicated in her cv also, under cross-examination Zondi revealed that Khotseng had been a subject head for culture and arts which the job advertisement recognised as a requirement for this position. Both Duma and Zondi’s testimony in this regard was not challenged by the Applicant. There was no evidence presented by the Applicant to suggest that Khotseng had not taught culture and arts as per her CV.
46. It is trite that an employee who complains that the employer’s decision or conduct constitutes an unfair labour practice must first establish the existence of such decision or conduct. If that decision or conduct is not established, that is the end of the matter. In the circumstances, it is my finding that the Applicant has failed to establish the existence of an unfair labour practice case within the context of section 186(2)(a) of the LRA.
47. I, therefore, make the following award:
AWARD
48. The Applicant, Gregory Njengabantu Mbambo has failed to prove that he was subjected to unfair labour practice conduct relating to promotion by the Respondent, Department of Education-KwaZulu Natal,
49. The Applicant is not entitled to any relief.
LINDIWE MAKHANYA
PANELLIST
BETWEEN:
MBAMBO, G.N “the Applicant”
and
DEPARTMENT OF EDUCATION – KWAZULU NATAL “the 1st Respondent”
KHOTSENG, N.N “ the 2nd Respondent”
ARBITRATION AWARD
Case Number: ELRC91-20/21 KZN
Last date of the arbitration proceedings: 25 November 2021
Date of the Award: 09 December 2021
ELRC Arbitrator: Lindiwe Makhanya
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601 E-Mail: gen.sec@elrc.co.za Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
1. This arbitration commenced on 23 April 2021, and after several sessions was finalised on 25 November 2021, at the Respondent’s premises, Durban Teachers Centre. It was held under the auspices of the Education Labour Relations Council (“the council”) ELRC in terms of section 191(5) (a) of the Labour Relations Act No.66 of 1995, as amended (“the Act”).
2. The Applicant, Mr. Gregory Njengabantu Mbambo, was represented by Ms. N.G. Thabethe, Union Official from SADTU and the Respondent, Department of Education-KwaZulu Natal, was represented by Mr. A. Preethpaul, Labour Relations Practitioner. The proceedings were digitally recorded.
PRELIMINARY ISSUES, JURISDICTION, and ISSUES TO BE DECIDED
3. No jurisdictional issues were raised.
4. I have to decide whether or not the First Respondent committed unfair labour practice by not appointing the Applicant.
5. The Applicant sought to be appointed to the position of the Departmental Head: Culture and Arts Post number 170.
BACKGROUND TO THE DISPUTE
6. The Respondent is the Department of Education located in Durban, KwaZulu Natal. The Applicant commenced his employment with the First Respondent on 14 January 2008 and is employed as an Educator (PL1). The Applicant applied for the position of Departmental Head: Culture and Arts (Post no. 170 as advertised in HRM Circular no. 36 of 2019) at Sithokozile High School. He attended the interview and was scored the highest but was not appointed to the position, instead, the Second Respondent (Ms. Khotseng) was appointed whereas she had scored lower than the Applicant.
SURVEY OF EVIDENCE AND ARGUMENT
7. Only the First Respondent submitted bundles of a document. The Applicant requested to use the same bundle. I will refer to it as “Common Bundle”
8. Both parties submitted their closing arguments on 02 December 2021.
THE APPLICANT’ CASE
9. Mr. Gregory Njengabantu Mbambo testified under oath that on 23 November 2019 he attended an interview for the position of Departmental Head: Culture and Arts and he scored the highest points ( 37.8) but was not appointed to the position instead Ms. Khotseng who scored 34.5 points was appointed. He referred to page 65 of the bundle, point 4.2.2.2 by stating that at the school where he was based, subjects like life orientation, and technology were grouped under culture and arts, this was confirmed before the position in question was advertised. The announcement was made by the former caretaker Principal, Mr. Kati during the staff meeting. After that meeting, Zondi, the former acting principal informed him that he had made an application at the circuit office for Life orientation to be grouped under culture and arts. When the position was advertised, Zondi told him to apply for the position and later validated his application forms.
10. According to him, he was qualified to be appointed to the position because he had majored in all three subjects at the University i.e., life orientation, technology and culture, and arts. He had also taught all three subjects and considered himself an expert in the field. He had taught life orientation for more than six years and was a subject head for life orientation and culture and arts.
11. He did not know why the First Respondent stated on the motivation letter page 57 that he did not have teaching experience for culture and arts subject because, during his studies, he went through a four-year training and had done his practical’s where he engaged learners in class. Khotseng did not teach culture and arts, she only taught technology as a subject, she did not qualify to be appointed to the position. He believed that he was discriminated against because the post was reserved for Khotseng and that his performance was not considered during an interview. The School Governing Board’s minutes on page 61 state clearly in isiZulu that it was their wish to appoint Khotseng.
12. During cross-examination, he conceded that he had never taught culture and arts but he was the subject head and that culture and arts is appearing in his academic record as one of the subjects he studied. He applied for the position because his application forms had been validated by Zondi, but when it was put to him that Zondi’s role in his application for the position was to check if his curriculum vitae had an original signature as stated on page 74, clause 5.6.1.1, he did not dispute it.
13. He said according to the needs of the school since he had been teaching life orientation which had been grouped under culture and arts he did qualify to be appointed to this position. He maintained that he considered himself as having teaching experience in culture and arts.
14. During re-examination, he maintained that when he asked Zondi to validate his application forms, Zondi had said that he met the requirements of the post. The school where he was based did not follow the grouping of subjects as per page 65 (job advertisement).
15. Mr. Bonginkosi Kati testified that he was employed as a Principal at Buhlebemfundo Secondary school but was previously an acting Principal at Sithokozile high school during 2018 and 2019. When he was still at Sithokozile high school he and the school management team wanted to group the subject life orientation with culture and arts. A request was sent to the circuit office for the departmental head: creative culture and arts vacancy, however, when the job advertisement was returned to them, life orientation was not included. He later submitted a request to have life orientation included, but on the final draft of the job advertisement, corrections had not been made.
16. Under cross-examination, he reiterated that the school management team decided to group life orientation and culture and arts because they are subjects that are related to each other. He conceded that an educator who has only taught life orientation would not be qualified to be appointed to the position in question.
17. He emphasized that the job had been incorrectly advertised as culture and arts, they had wanted to include life orientation as per the need of the school at that time, but the First Respondent did not change the advert to include life orientation even after they had sent a request.
18. During re-examination, he maintained that the successful incumbent in this position would be required to have two years of teaching experience in culture and arts.
19. Mr. Thabani Ndlovu testified that he was employed as a Head of the department: Commerce at Sithokozile high school. The school had culture and arts, technology, and life orientation grouped. Kati had informed him as Site Stuart that life orientation would move from humanities to culture and arts before the job was advertised.
20. There was no cross-examination.
21. There was no re-examination.
THE RESPONDENT’S CASE
22. Ms. Nothando Duma testified under oath that she was a member of the School Governing Body (SGB) at Sithokozile High school. She was part of the interview committee for the Departmental head culture and arts position.
23. The Applicant was shortlisted and interviewed for the position in question and obtained the highest score. Khotseng was ranked in the third position in terms of scoring, however, the SGB decided not to appoint the Applicant because he did not teach culture and arts. The Applicant was interviewed because according to his application forms, he met the requirements of the post. In his cv, it is stated that he taught life orientation, culture, and arts, however, Zondi, who was the resource person during the interviews had informed the committee that the Applicant did not teach culture and arts but was teaching life orientation which was not part of culture and arts at that time.
24. Khotseng was appointed because she previously acted as departmental head for culture and arts for two years, she had taught culture and arts, and technology, she referred to page 28.
25. Under cross-examination, she further elaborated that Zondi had informed them after the interviews that the Applicant did not meet the requirements of the post because he did not teach culture and arts.
26. When she was asked if Khotseng had studied culture and arts she said she did not know.
27. Kati attempted to take the Applicant’s subjects to be under arts and culture but when the bulletin or the job advert came, it did not include life orientation.
28. During re-examination, she maintained that the job required the successful candidate to have at least 2 years of teaching experience in culture and arts which the Applicant did not have, hence Khotseng was recommended by the SGB and later appointed by the First Respondent. The Applicant only taught life orientation and tourism which was not part of culture and art.
29. Mr. Lucky Zondi testified under oath that he was employed by the Respondent at Umqhele Secondary School but was previously employed at Sithokozile High School as an acting principal. The Applicant taught tourism and life orientation which did not fall under the department of culture and arts. He referred to page 54, the Applicant’s cv under teaching experience where subjects like tourism, life orientation, arts, and technology are listed but the Applicant did not teach culture and arts and technology at Sithokozile High School.
30. He admitted that he validated the Applicant’s application, but the Applicant had made an error by writing that he taught culture and arts on page 54. Khotseng qualified as she had teaching experience as required by the job advert, she was also the acting head; culture, and arts. As a resource person, it was his duty to advise the panel and the SGB that the Applicant did not have teaching experience in culture and arts.
31. He denied that the Applicant was a subject head at the school before the post in question was advertised. Kati had advised that life orientation would be grouped with culture and arts but it was implemented after the appointment of Khotseng.
32. Under cross-examination, he reiterated that the Applicant never taught culture and arts. He validated the Applicant’s application forms because the Applicant had studied culture and arts. He explained that when you validate the application forms it means that you check the requirements, it was not his duty to decide whether the Applicant qualified for the position or not.
33. He also reiterated that he informed the interview panel and the SGB that the Applicant did not have teaching experience in culture and arts. Once the job advertisement had been drafted and concluded by the circuit office, the school had no say but to comply with it.
34. When asked if Khotseng had taught culture and arts, he said as a resource person he did not make any decisions regarding the interviews but the job advertisement did accommodate a person who had acted in the position to be shortlisted. Khotseng had been teaching technology and had acted as a subject head: culture and arts.
35. During re-examination, he maintained that the Applicant was not appointed because he did not meet the requirements of the post, whereas Khotseng had taught technology and was acting head: culture and arts.
ANALYSIS OF EVIDENCE AND ARGUMENT
36. I have taken note of section 186(2) of the LRA, which states that an “unfair labour practice” means any unfair act or omission that arises between an employer and an employee. I read this section together with section 185 (b) of the LRA which states as follows; “Every employee has the right not to be: (b) subjected to unfair labour practice.
37. The applicant bears the onus to prove that he was subjected to an unfair labour practice related to promotion.
38. It was common cause that the Applicant had been scored the highest during an interview for Departmental Head: Culture and Arts position. It was also common cause that the Applicant was not appointed in the position, but Khotseng was appointed whereas she was scored third highest during an interview.
39. The Applicant disputed that he did not have teaching experience in culture and arts, on the other hand, the First Respondent argued that the Applicant was not appointed because he did not have teaching experience in culture and arts.
40. At the outset, it is important to state that I found that the Applicant was not a credible witness because he contradicted himself on numerous occasions; at first, he claimed that he had teaching experience in culture and arts because, during his studies, he had engaged learners, but during cross-examination, he conceded that he did not have teaching experience for this subject. Duma and Zondi’s evidence revealed that the Applicant was shortlisted because he had stated on his cv that he had taught culture and arts which was untrue. Also, the Applicant claimed that he was the subject head for culture and arts, but when Zondi testified that the Applicant was never a subject head for culture and arts during his time at Sithokozile High Schools his evidence was unchallenged.
41. The Applicant’s contended that he ought to have been appointed to the position because Kati had announced that life orientation and technology would be grouped with culture and arts before the job was advertised. The evidence presented revealed that each school was permitted to have its arrangements in terms of subject grouping, however, the circuit office had to approve it. The Applicant conceded that before the job was advertised, Zondi had informed him that an application had been sent to the circuit office to have the subjects grouped. The Applicant knew that the final draft of a job advertisement had to be approved by the Respondent, not Zondi or Kati.
42. The Applicant argued that Zondi was not supposed to validate his application forms if he did not meet the minimum requirements of the post. I note that according to the HRM Circular no 36 of 2019 (job advertisement), Zondi as a validating official was not required to validate the application forms of the applicant who did not meet the minimum requirement. The Applicant did not have two years of teaching experience in culture and arts. Zondi was aware of this, since his request to have the circuit office include life orientation was not granted. He ought not to have validated the Applicant’s application forms. More so, because he is the person who had approached the Applicant to apply for the position. Be that as it may, Zondi’s validation of the Applicant’s application forms did not imply that the Applicant ought to have been appointed even if he did not meet the job requirements.
43. When the final job advertisement did not include life orientation, the Applicant ought to have known that he did not meet the minimum requirements of the post. I agree with Kati’s testimony that the job was incorrectly advertised because it was not what they had requested at the circuit office, but the Applicant insisted that he was scored the highest during an interview, therefore he ought to have been appointed. Being scored the highest in an interview does not mean that you must be appointed to the position even if it is discovered that you do not meet the requirements, like in this case, the Applicant did not have two years of teaching experience in culture and arts as required by the job advertisement.
44. Despite the Applicant’s claim that according to the needs of the school, he ought to have been appointed to the position because he taught life orientation which had been grouped with culture and arts, the job advertisement did not suggest such because according to the HRM circular No 36 of 2019, culture and arts is a stand-alone subject, it is not grouped with life orientation. It would appear that Kati and Zondi did not succeed to persuade the circuit office to group these subjects. It is, therefore, cannot be correct for the Applicant to claim that he ought to have been appointed when he did not meet the requirements of the position.
45. The Applicant claimed that Khotseng did not meet the requirements of the position because she did not teach culture and arts. Duma’s evidence suggests that Khotseng had taught culture and arts at Batlokoa Secondary School during 2004 and 2005 as indicated in her cv also, under cross-examination Zondi revealed that Khotseng had been a subject head for culture and arts which the job advertisement recognised as a requirement for this position. Both Duma and Zondi’s testimony in this regard was not challenged by the Applicant. There was no evidence presented by the Applicant to suggest that Khotseng had not taught culture and arts as per her CV.
46. It is trite that an employee who complains that the employer’s decision or conduct constitutes an unfair labour practice must first establish the existence of such decision or conduct. If that decision or conduct is not established, that is the end of the matter. In the circumstances, it is my finding that the Applicant has failed to establish the existence of an unfair labour practice case within the context of section 186(2)(a) of the LRA.
47. I, therefore, make the following award:
AWARD
48. The Applicant, Gregory Njengabantu Mbambo has failed to prove that he was subjected to unfair labour practice conduct relating to promotion by the Respondent, Department of Education-KwaZulu Natal,
49. The Applicant is not entitled to any relief.
LINDIWE MAKHANYA
PANELLIST