ELRC644-20/21 EC
Text
ELRC 618-20-21 KZN
Award Date:
22 November 2021
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN DURBAN
Case No ELRC 618-20-21 KZN
In the matter between
PSA O B O Dr THANDISIWE MARY-JANE MAGUBANE Applicant
and
DEPARTMENT OF EDUCATION: KZN 1st Respondent
SADTU O B O SIBONISO SAMUEL KHOMO 2nd Respondent
ARBITRATOR : AS Dorasamy
HEARD : 11 NOVEMBER 2021
DATE OF AWARD : 22 NOVEMBER 2021
SUMMARY : Labour Relations Act 66 of 1995 – Section 186(2) (a) - alleged unfair
conduct related to promotion
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1 This matter was set down for arbitration on various dates and on the 11 November 2021 and the evidence was completed at the Durban Teacher’s Centre in Durban, under the auspices of the Education Labour Relations Council (ELRC). Ms Zinhle Manyoni of the PSA represented Dr Thandisiwe Mary- Jane (applicant), Ms Monica Mthethwa represented the Department of Education KZN (1st respondent), second respondent was represented by Mr Musa Zakhele Zulu of SADTU. The parties were to submit written closing arguments by the 18 November 2021. The parties’ submissions and the applicable provisions of the applicable circulars relating to promotions were considered when I arrived at my decision.
THE ISSUE IN DISPUTE
2 I am required to determine whether the 1ST respondent committed any unfair labour practice relating to promotion in not promoting the applicant to the post in question (OBE 35/2020), CES (Chief Education Specialist) Umlazi Teacher Development and dependent thereon the appropriate relief may be determined.
THE BACKGROUND TO THE DISPUTE
3.1 The applicant applied for the post, was short-listed and interviewed for the post but was not appointed.
3.2. Mr Siboniso Samuel Khomo was appointed to the post. The applicant prays that the appointment be set aside alternatively she seeks appointment to the post.
The respondents oppose the relief sought by the applicant.
3.3. All documents referred to had been made available to the parties at arbitration. The markings of the documents was standardised with the parties at the arbitration.
APPLICANT’S (EMPLOYEE) OPENING STATEMENT
4. The applicant lodged the dispute and seeks retrospective promotion from the date of appointment of the incumbent.
She seeks the setting aside of the appointment and to be appointed to the post.
FIRST RESPONDENT’S OPENING STATEMENT
5. The first respondent /employer prays that the dispute be dismissed.
SECOND RESPONDENT’S OPENING STATEMENT
6. The incumbent went through the process. The second respondent prays for the confirmation of his appointment.
SUMMARY OF EVIDENCE AND ARGUMENT
EVIDENCE ON BEHALF OF THE APPLICANT
THE SALIENT ASPECTS OF THE EVIDENCE ARE RECORDED BELOW.
Dr THANDISIWE MARY-JANE MAGUBANE
Dr Magubane testified to the following effect:
7. She is currently employed in the Umlazi District in Teacher Development- DCES. She has been in the employ of the Department for 40 years and has a Doctor in Philosophy qualification.
8. She was appointed as DCES in 2006 and acted as CES for the past 8 years (since 2012) to 2020 without acting allowance. The Department prioritised school based posts and HRM 28 of 2020 was advertised after 14 years.
9. She thinks that the key responsibilities in the advert was exactly what she was doing as acting CES. Her experience in Teacher Development was from 2001 to date. She was the best candidate because of her experience and understood what was entailed in the blue print for Teacher Development.
10. She was in a better position to understand the Teacher Development and capacitated principals etc. She also looked at other development and understood the Educator Professional Development (EPD).
11. She was also responsible for assessing the staff in teacher development through PMDS and non- teaching staff through EMMDS. Also other leadership roles and had constantly capacitated the under- performing schools.
12. She also sat in MANCO of the District and reported directly to the Director as the immediate supervisor. She acted for 8 years as CES and there were no complaints of under-performance .
13. She believes that she was the best candidate for the post and her career-pathing was to go to CES. She was suitable for the post and the incumbent was a principal. The advert was crafted to suit certain individuals like principals.
14. Her managerial skills and management role was far more than a principal. She was doing it at District level.
15. The incumbent indicated in his CV that he had matric and B Paed. The score for the incumbent had a person in mind. There were 5 candidates and the fifth did not attend. Her score was not a true reflection. She scored 24.6 and Mr Khomo 26.
Under cross-examination by the first respondent she stated as follows:
16. She was short-listed and interviewed. She did not raise any issues with the Interview Committee (IC). She questioned the IC on the time allocated in her closing remarks. Mr Cele responded to her query.
17. She did not score herself or Mr Khomo. On page 24 of BB refers to the questions asked. She did not apply for other CES posts. She believes that an independent panel would arrive at another decision. The person appointed was supervised by her.
18. The advert was flawed Mr Zulu observed the process and now represents the appointee. She was scored according to her responses to the questions. She does not think that the panel was fair on the scores.
19. She competed for the post and believes that she was under-scored.
Under cross-examination by the second respondent she stated as follows:
20. She was co-ordinating the section without remuneration. She did not receive any letter of appointment.
21. She was not aware of Mr Khomo’s involvement in the union. His school was doing well and he was asked to address principals of under-performing schools.
22. She did not have school management experience and this favoured principals.
FIRST RESPONDENT’S CASE (DOE-KZN)
THE SALIENT ASPECTS OF THE EVIDENCE ARE RECORDED BELOW.
MR MUSAWENKOSI MUZIWENHLANHLA SINOTHI LOUIS MADONDO
23. He works in the Ilembe District as a Director since 1995 (25 years) and 5 years as District manager.
24. He was a member of the panel and there were 5 scoring members and the final score was done by using the average. Each member gave a score and it was tallied and divided by the number of panellists.
25. The applicant disputed the scores and he was amazed because she should not have access to the scoring. They listen to the candidates and guided by their responses they were scored and at the end and after the candidate had left they shouted out their scores and the secretary calculated the scores.
26. The applicant lodged an unfair labour practice dispute that she was the best candidate and better than the appointee. As far as he knows qualification was considered in the sifting and short-listing. In the interview the answers of the candidates were scored. They needed the candidate to respond to the questions asked.
27. The panel followed the procedure as per HRM 38 of 2020. The panel checked the invites to the unions and SADTU was present. The applicant did not raise any concerns about the interview. She was not prejudiced and the process was observed by the union. There was no dispute raised at the interviews. The candidates were asked the same questions and given the same time to answer. The panel agreed on the process.
28. The questions were set at the start. The process was fair and everyone was treated in the same manner.
Cross examination by the Applicant
29. They had questions and expected answers.
30. The tallying of the scores was the duty of the secretary. He was the chair and he would have given scores only.
31. As per report all trade unions were invited.
Cross examination by the second respondent:
32. The panel did not draft the advert. The other candidates short-listed were not principals example Ms C Nair is not a principal.
The Second respondent
33. The second respondent (appointee) elected not to testify.
CLOSING ARGUMENTS
34. The parties submitted written closing arguments that were considered in arriving at my decision. The parties must be complimented for submitting comprehensive arguments.
ANALYSIS OF EVIDENCE AND ARGUMENT
THE RELEVANT LEGAL PRINCIPLES
35 In Noonan v Safety and Sectorial Bargaining Council and Others [2012] 33 ILJ 2597 (LAC) it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice. If the employee is not denied the opportunity of competing for a post then the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.
36. It is trite law that the courts will only interfere with the employer’s decision if it is grossly unreasonable.
The Interview Committee must submit to the Human Resources Component at Head Office who will thereafter proceed with the placement of the relevant candidates in accordance with their individual preference order (in order of preference- this was done).
37. The schedule of placed candidates will be submitted to the Superintendent- General for approval.
38. In the present case the Superintendent- General considered the indication/ recommendation of the Human Resources Component and decided to appoint the highest scoring candidate, Mr Siboniso Samuel Khomo. The appointment was not arbitrary or motivated by an unacceptable reason. The decision can be rationally justified, scored the highest mark and met the minimum requirements for the post. Therefore I do not believe that there are any justifiable reasons to interfere with the decision to appoint Mr S S Khomo as CES Umlazi Teacher Development - Post OBE 35/2020.
APPLICATION OF THE LAW TO THE FACTS
39. The promotion process of the respondent the Department of Education is regulated by HRM Circular NO.38 of 2020 documents and collective agreements (ELRC Collective Agreement No.1 of 2010.
The stakeholders in the education sector continuously appraise the procedure manuals and where necessary amendments are effected.
40. The following are of importance to direct parties in this sector that careful consideration must be given to the following principles that guide/ direct the promotion/ appointment process. Should a better understanding evolve then this would lead to a more expeditious filling of advertised posts and effective teaching and learning situation. It is a clear from the number of disputes attended to by the ELRC that the education sector is saddled with promotion disputes that have the net result that the vacant posts remain in limbo until the matters are settled either by agreement or by awards.
41. The following are recorded in the promotion manual HRM VACANCY CIRCULAR NUMBER 38 OF 2020.
ADVERTISEMENT OF OFFICE BASED EDUCATOR VACANCIES
2. GENERAL PRINCIPLES
This procedure manual is developed within the framework of the Personnel Administrative Measures (PAM) and PELRC Collective Agreement No. 1 of 2010. It replaces all other previous practices and procedure manuals.
GENERAL SERVICE REQUIREMENTS
POST REQUIREMENTS FOR CHIEF EDUCATION SPECIALIST (CES)-TEACHER DEVELOPMENT
REQUIREMENTS
A recognized three or four year’s qualification, which includes professional teacher education. A Minimum of 9 Years teaching and school management experience. Registration with SACE. Proof of a valid driver’s licence.
6.6 ROLE OF OBSERVERS (Collective Agreement 1 of 2010)
6.6.1 The observer be present at all meetings of the Interview Committee during the shortlisting
and interviewing processes.
6.6.2 The observer will………(eg Observers shall not score)
6.6.3 The observer has the right………in the Resolution.
6.6.4 In such an instance……………….. leave the room.
6.6.5 The observer must sign………………secrecy.
6.6.6 The observer must sign…………..and interviews.
6.6.7. The observer……… of the applicant.
6.6.8 The observer must continue…… Committee.
42. The first concern is that the promotion/ appointment procedure manual clearly defines the process and the obligations of the participants in the process. All participants must sign a confidentiality undertaking put simply it means that all information in their hands are privileged and confidential. As such any disclosure would render such information inadmissible. There must be strict adherence to the confidentiality clause. This seems to be the root cause of grievances and disputes at stages that the drafter had not envisaged.
43. Turning to the matter at hand it is clear that the Interview Committee was engaged/ monitored by the union SADTU and submitted its preferred candidate. They put their recommendations before the Human Resources Component resulting in the appointment of Mr S S Khomo the post.
RECOMMENDATION AND PLACEMENT
Clause 14.1 After satisfying itself that all procedures were complied with, the Human Resources
Component at Head Office will thereafter proceed with the placement of the relevant candidates in
accordance with their individual preference order.
15.1 The schedule of placed candidates will be submitted to the Superintendent-General or his/her delegate for approval.
44. In the collective agreement Number 3 of 2016 ELRC Guidelines: Promotion Arbitrations the following are recorded:
32. An employee who refers a promotion dispute must do more than just demonstrate that he has
the minimum advertised qualifications and experience. He must allege and prove that the
decision not to appoint him was unfair. Mere unhappiness or a perception of unfairness does
not establish unfair conduct. What is fair depends upon the circumstances of a particular case
and essentially involves a value judgment.
33. Where an applicant in a promotion dispute, is unable to prove that he was the best of all the candidates who applied for the job, then in order for the employee to prove an unfair labour
practice relating to promotion, he or she should generally, at least demonstrate that there was
conduct that denied him or her a fair opportunity to compete for a post, or conduct that was
arbitrary or motivated by an unacceptable reason, or that the successful candidate was
dishonest and misled the interview panel or employer.
45. The union SADTU was a party to the process and approved the appointment of Mr S S Khomo. I
conclude that the appointment process was fair. Further I have noted that the applicant did not meet all the requirements for the post. She did not have school management experience. The application must fail.
46. As a consequence of the above I determine that the appointment of Mr S S Khomo to the post of CES Umlazi Teacher Development post number OBE 35/2020 be confirmed.
COSTS
47 I have considered the issue of costs and determine that no party acted frivolously or vexatiously in the proceedings and make no order of costs against any party.
AWARD
49. The applicant’s, Dr Thandiswe Mary-Jane Magubane’s, application is dismissed.
50. The appointment of Mr Siboniso Samuel Khomo to the post of CES Umlazi Teacher Development post number OBE 35/2020 is confirmed.
51. There is no order as to costs.
DATED AT DURBAN ON THIS 22nd DAY OF NOVEMBER 2021.
A S DORASAMY (ARBITRATOR)
Case No ELRC 618-20-21 KZN
In the matter between
PSA O B O Dr THANDISIWE MARY-JANE MAGUBANE Applicant
and
DEPARTMENT OF EDUCATION: KZN 1st Respondent
SADTU O B O SIBONISO SAMUEL KHOMO 2nd Respondent
ARBITRATOR : AS Dorasamy
HEARD : 11 NOVEMBER 2021
DATE OF AWARD : 22 NOVEMBER 2021
SUMMARY : Labour Relations Act 66 of 1995 – Section 186(2) (a) - alleged unfair
conduct related to promotion
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1 This matter was set down for arbitration on various dates and on the 11 November 2021 and the evidence was completed at the Durban Teacher’s Centre in Durban, under the auspices of the Education Labour Relations Council (ELRC). Ms Zinhle Manyoni of the PSA represented Dr Thandisiwe Mary- Jane (applicant), Ms Monica Mthethwa represented the Department of Education KZN (1st respondent), second respondent was represented by Mr Musa Zakhele Zulu of SADTU. The parties were to submit written closing arguments by the 18 November 2021. The parties’ submissions and the applicable provisions of the applicable circulars relating to promotions were considered when I arrived at my decision.
THE ISSUE IN DISPUTE
2 I am required to determine whether the 1ST respondent committed any unfair labour practice relating to promotion in not promoting the applicant to the post in question (OBE 35/2020), CES (Chief Education Specialist) Umlazi Teacher Development and dependent thereon the appropriate relief may be determined.
THE BACKGROUND TO THE DISPUTE
3.1 The applicant applied for the post, was short-listed and interviewed for the post but was not appointed.
3.2. Mr Siboniso Samuel Khomo was appointed to the post. The applicant prays that the appointment be set aside alternatively she seeks appointment to the post.
The respondents oppose the relief sought by the applicant.
3.3. All documents referred to had been made available to the parties at arbitration. The markings of the documents was standardised with the parties at the arbitration.
APPLICANT’S (EMPLOYEE) OPENING STATEMENT
4. The applicant lodged the dispute and seeks retrospective promotion from the date of appointment of the incumbent.
She seeks the setting aside of the appointment and to be appointed to the post.
FIRST RESPONDENT’S OPENING STATEMENT
5. The first respondent /employer prays that the dispute be dismissed.
SECOND RESPONDENT’S OPENING STATEMENT
6. The incumbent went through the process. The second respondent prays for the confirmation of his appointment.
SUMMARY OF EVIDENCE AND ARGUMENT
EVIDENCE ON BEHALF OF THE APPLICANT
THE SALIENT ASPECTS OF THE EVIDENCE ARE RECORDED BELOW.
Dr THANDISIWE MARY-JANE MAGUBANE
Dr Magubane testified to the following effect:
7. She is currently employed in the Umlazi District in Teacher Development- DCES. She has been in the employ of the Department for 40 years and has a Doctor in Philosophy qualification.
8. She was appointed as DCES in 2006 and acted as CES for the past 8 years (since 2012) to 2020 without acting allowance. The Department prioritised school based posts and HRM 28 of 2020 was advertised after 14 years.
9. She thinks that the key responsibilities in the advert was exactly what she was doing as acting CES. Her experience in Teacher Development was from 2001 to date. She was the best candidate because of her experience and understood what was entailed in the blue print for Teacher Development.
10. She was in a better position to understand the Teacher Development and capacitated principals etc. She also looked at other development and understood the Educator Professional Development (EPD).
11. She was also responsible for assessing the staff in teacher development through PMDS and non- teaching staff through EMMDS. Also other leadership roles and had constantly capacitated the under- performing schools.
12. She also sat in MANCO of the District and reported directly to the Director as the immediate supervisor. She acted for 8 years as CES and there were no complaints of under-performance .
13. She believes that she was the best candidate for the post and her career-pathing was to go to CES. She was suitable for the post and the incumbent was a principal. The advert was crafted to suit certain individuals like principals.
14. Her managerial skills and management role was far more than a principal. She was doing it at District level.
15. The incumbent indicated in his CV that he had matric and B Paed. The score for the incumbent had a person in mind. There were 5 candidates and the fifth did not attend. Her score was not a true reflection. She scored 24.6 and Mr Khomo 26.
Under cross-examination by the first respondent she stated as follows:
16. She was short-listed and interviewed. She did not raise any issues with the Interview Committee (IC). She questioned the IC on the time allocated in her closing remarks. Mr Cele responded to her query.
17. She did not score herself or Mr Khomo. On page 24 of BB refers to the questions asked. She did not apply for other CES posts. She believes that an independent panel would arrive at another decision. The person appointed was supervised by her.
18. The advert was flawed Mr Zulu observed the process and now represents the appointee. She was scored according to her responses to the questions. She does not think that the panel was fair on the scores.
19. She competed for the post and believes that she was under-scored.
Under cross-examination by the second respondent she stated as follows:
20. She was co-ordinating the section without remuneration. She did not receive any letter of appointment.
21. She was not aware of Mr Khomo’s involvement in the union. His school was doing well and he was asked to address principals of under-performing schools.
22. She did not have school management experience and this favoured principals.
FIRST RESPONDENT’S CASE (DOE-KZN)
THE SALIENT ASPECTS OF THE EVIDENCE ARE RECORDED BELOW.
MR MUSAWENKOSI MUZIWENHLANHLA SINOTHI LOUIS MADONDO
23. He works in the Ilembe District as a Director since 1995 (25 years) and 5 years as District manager.
24. He was a member of the panel and there were 5 scoring members and the final score was done by using the average. Each member gave a score and it was tallied and divided by the number of panellists.
25. The applicant disputed the scores and he was amazed because she should not have access to the scoring. They listen to the candidates and guided by their responses they were scored and at the end and after the candidate had left they shouted out their scores and the secretary calculated the scores.
26. The applicant lodged an unfair labour practice dispute that she was the best candidate and better than the appointee. As far as he knows qualification was considered in the sifting and short-listing. In the interview the answers of the candidates were scored. They needed the candidate to respond to the questions asked.
27. The panel followed the procedure as per HRM 38 of 2020. The panel checked the invites to the unions and SADTU was present. The applicant did not raise any concerns about the interview. She was not prejudiced and the process was observed by the union. There was no dispute raised at the interviews. The candidates were asked the same questions and given the same time to answer. The panel agreed on the process.
28. The questions were set at the start. The process was fair and everyone was treated in the same manner.
Cross examination by the Applicant
29. They had questions and expected answers.
30. The tallying of the scores was the duty of the secretary. He was the chair and he would have given scores only.
31. As per report all trade unions were invited.
Cross examination by the second respondent:
32. The panel did not draft the advert. The other candidates short-listed were not principals example Ms C Nair is not a principal.
The Second respondent
33. The second respondent (appointee) elected not to testify.
CLOSING ARGUMENTS
34. The parties submitted written closing arguments that were considered in arriving at my decision. The parties must be complimented for submitting comprehensive arguments.
ANALYSIS OF EVIDENCE AND ARGUMENT
THE RELEVANT LEGAL PRINCIPLES
35 In Noonan v Safety and Sectorial Bargaining Council and Others [2012] 33 ILJ 2597 (LAC) it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice. If the employee is not denied the opportunity of competing for a post then the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.
36. It is trite law that the courts will only interfere with the employer’s decision if it is grossly unreasonable.
The Interview Committee must submit to the Human Resources Component at Head Office who will thereafter proceed with the placement of the relevant candidates in accordance with their individual preference order (in order of preference- this was done).
37. The schedule of placed candidates will be submitted to the Superintendent- General for approval.
38. In the present case the Superintendent- General considered the indication/ recommendation of the Human Resources Component and decided to appoint the highest scoring candidate, Mr Siboniso Samuel Khomo. The appointment was not arbitrary or motivated by an unacceptable reason. The decision can be rationally justified, scored the highest mark and met the minimum requirements for the post. Therefore I do not believe that there are any justifiable reasons to interfere with the decision to appoint Mr S S Khomo as CES Umlazi Teacher Development - Post OBE 35/2020.
APPLICATION OF THE LAW TO THE FACTS
39. The promotion process of the respondent the Department of Education is regulated by HRM Circular NO.38 of 2020 documents and collective agreements (ELRC Collective Agreement No.1 of 2010.
The stakeholders in the education sector continuously appraise the procedure manuals and where necessary amendments are effected.
40. The following are of importance to direct parties in this sector that careful consideration must be given to the following principles that guide/ direct the promotion/ appointment process. Should a better understanding evolve then this would lead to a more expeditious filling of advertised posts and effective teaching and learning situation. It is a clear from the number of disputes attended to by the ELRC that the education sector is saddled with promotion disputes that have the net result that the vacant posts remain in limbo until the matters are settled either by agreement or by awards.
41. The following are recorded in the promotion manual HRM VACANCY CIRCULAR NUMBER 38 OF 2020.
ADVERTISEMENT OF OFFICE BASED EDUCATOR VACANCIES
2. GENERAL PRINCIPLES
This procedure manual is developed within the framework of the Personnel Administrative Measures (PAM) and PELRC Collective Agreement No. 1 of 2010. It replaces all other previous practices and procedure manuals.
GENERAL SERVICE REQUIREMENTS
POST REQUIREMENTS FOR CHIEF EDUCATION SPECIALIST (CES)-TEACHER DEVELOPMENT
REQUIREMENTS
A recognized three or four year’s qualification, which includes professional teacher education. A Minimum of 9 Years teaching and school management experience. Registration with SACE. Proof of a valid driver’s licence.
6.6 ROLE OF OBSERVERS (Collective Agreement 1 of 2010)
6.6.1 The observer be present at all meetings of the Interview Committee during the shortlisting
and interviewing processes.
6.6.2 The observer will………(eg Observers shall not score)
6.6.3 The observer has the right………in the Resolution.
6.6.4 In such an instance……………….. leave the room.
6.6.5 The observer must sign………………secrecy.
6.6.6 The observer must sign…………..and interviews.
6.6.7. The observer……… of the applicant.
6.6.8 The observer must continue…… Committee.
42. The first concern is that the promotion/ appointment procedure manual clearly defines the process and the obligations of the participants in the process. All participants must sign a confidentiality undertaking put simply it means that all information in their hands are privileged and confidential. As such any disclosure would render such information inadmissible. There must be strict adherence to the confidentiality clause. This seems to be the root cause of grievances and disputes at stages that the drafter had not envisaged.
43. Turning to the matter at hand it is clear that the Interview Committee was engaged/ monitored by the union SADTU and submitted its preferred candidate. They put their recommendations before the Human Resources Component resulting in the appointment of Mr S S Khomo the post.
RECOMMENDATION AND PLACEMENT
Clause 14.1 After satisfying itself that all procedures were complied with, the Human Resources
Component at Head Office will thereafter proceed with the placement of the relevant candidates in
accordance with their individual preference order.
15.1 The schedule of placed candidates will be submitted to the Superintendent-General or his/her delegate for approval.
44. In the collective agreement Number 3 of 2016 ELRC Guidelines: Promotion Arbitrations the following are recorded:
32. An employee who refers a promotion dispute must do more than just demonstrate that he has
the minimum advertised qualifications and experience. He must allege and prove that the
decision not to appoint him was unfair. Mere unhappiness or a perception of unfairness does
not establish unfair conduct. What is fair depends upon the circumstances of a particular case
and essentially involves a value judgment.
33. Where an applicant in a promotion dispute, is unable to prove that he was the best of all the candidates who applied for the job, then in order for the employee to prove an unfair labour
practice relating to promotion, he or she should generally, at least demonstrate that there was
conduct that denied him or her a fair opportunity to compete for a post, or conduct that was
arbitrary or motivated by an unacceptable reason, or that the successful candidate was
dishonest and misled the interview panel or employer.
45. The union SADTU was a party to the process and approved the appointment of Mr S S Khomo. I
conclude that the appointment process was fair. Further I have noted that the applicant did not meet all the requirements for the post. She did not have school management experience. The application must fail.
46. As a consequence of the above I determine that the appointment of Mr S S Khomo to the post of CES Umlazi Teacher Development post number OBE 35/2020 be confirmed.
COSTS
47 I have considered the issue of costs and determine that no party acted frivolously or vexatiously in the proceedings and make no order of costs against any party.
AWARD
49. The applicant’s, Dr Thandiswe Mary-Jane Magubane’s, application is dismissed.
50. The appointment of Mr Siboniso Samuel Khomo to the post of CES Umlazi Teacher Development post number OBE 35/2020 is confirmed.
51. There is no order as to costs.
DATED AT DURBAN ON THIS 22nd DAY OF NOVEMBER 2021.
A S DORASAMY (ARBITRATOR)