PSES115-18/19WC
Text
ELRC 562-21/22 GP
Award Date:
08 April 2022
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN VIRTUALLY
CASE NO.: ELRC 562-21/22 GP
In the matter between:-
SHONGWE.MZANYWA JEFFREY APPLICANT
and
DEPARTMENT OF EDUCATION- GAUTENG RESPONDENT
SEBASHEGO D 2nd RESPONDENT
ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
HEARD: 16 MARCH 2022
CLOSING ARGUMENTS: 23 MARCH 2022
DATE OF AWARD: 08 April 2022
SUMMARY: Labour Relations Act 66 of 1995 –Section 186(2)(b) – Unfair Labour Practice by employer relating to promotion.
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
1. A virtual arbitration was held on 16 March 2022.The Applicant was represented by Mr T. Monyatsi, union official of SADTU. The respondent was represented by Mr S.Nawa, its Deputy Chief Education Specialist: Labour Relations. The proceedings were recorded digitally. The parties were given until 23 March 2022 to submit their closing arguments. The respondent failed to submit the closing arguments.
BACKGROUND TO THE ISSUE
2. The Applicant had referred the dispute of unfair labour practice relating to promotion to the Council for Conciliation. The dispute could not be resolved and a certificate of outcome of conciliation to that effect was issued. The applicant then requested that the dispute be arbitrated.
ISSUE TO BE DECIDED
3. I am required to decide whether the respondent’s failure to appoint the Applicant to the position of a Principal at Lefa-Ifa Secondary School, amounts to an unfair labour practice. The appropriate relief should I find in favour of the applicant. The Applicant seeks to be appointed on the position in dispute
AGREED FACTORS
4. The parties agreed to the following factors as being common cause:-
4.1 The applicant has been a deputy principal at Lefa-Ifa Secondary School for the past 15 years.
4.2 The post for a school principal: GE 30ED 1008 was advertised during October 2020. The applicant was shortlisted for interviews.
4.3 The interviews were conducted on 12 March 2021.The applicant scored the highest in the interviews and ranked number one. The interview panel recommended him for the position. The recommendation was ratified by the School Governing Body “SGB”.
4.4 The 2nd respondent is the successful incumbent. She scored second and was ranked number 2 in terms of the recommendation list of the interview panel.
SURVEY OF ARGUMENTS AND EVIDENCE
5. Mzanywa Jeffrey Shongwe testified that he has twenty-one (21) years’ experience as Educator, of which 15 years he was a Deputy Principal at the school the dispute relates to. He was the best candidate as he scored highest, recommended by the interview panel. The recommendation was ratified by SGB and signed by the director.
6. He was surprised when the 1st Respondent informed him that he was not appointed to the position because of the gender equity plan. The 2nd Respondent incumbent is not the best suitable candidate because she has a primary education [Senior Primary Teachers Diploma] not High School as compared to him. He has a Secondary Teachers Diploma and is currently studying for a Master’s degree.
7. The 1st Respondent relied on the Equity plan on bundle AB15 which was not part of the vacancy list. The interviews were held on 12 March 2021 and the grid is dated 30 April 2021, post the interviews.
8. The 2nd Respondent has never been a Deputy Principal. She came from post level 1 straight to principalship at a primary school. She was only a primary school principal for six months before taking the current position. There is a huge difference between high school and primary school education. Scores play important role in the interviews. He disputes that the different score between his and the 2nd Respondent of 5 points is insignificant. He scored 63 and the 2nd Respondent scored 58 points.
9. The motivation on AB17-18 of the interview panel for his recommendation which is more detailed is evidence that he is the best suitable candidate. The 2nd Respondent`s motivation on AB18 is generic and not detailed.
10. The Head of Department (``HOD``) is not close to the schools like the Director who signed and supported for the recommendation for his appointment on AB21. The HOD does not know the performance and candidates. The Director signed the recommendation with awareness because he knew him and is close to schools. The HOD took a decision based on the wrong information that the 2nd respondent was a deputy principal which was not true. He has acted on the principal position several times.
11. During cross examination, he testified that the last time he acted on the principal position for 12 consecutive months. He acted on the contested position on five (5) separate occasions. His acting is evidence that he has vast experience.
12. The fact that the Director signed the recommendation of the panel proves that he was the best suitable candidate. He is aware that the HOD is vested with the powers to appoint anyone of the top three candidates recommended by the panel.
13. When a version was put to him that the gender equity plan in terms of circular 09 of October 2020 and April 2021 was applied in the appointment of the incumbent, his response was that the gender equity grid is not a justifiable ground because it was not in existence. It came after the interviews. The post was not identified as that of a gender equity. The decision of the HOD on AB 21, was not correct because it was based on the wrong information that the incumbent had acted as the deputy principal.
14. Tebogo Joseph Ndlovu testified for the respondent that he was the interview panelist. The panel recommended the applicant. His role ended upon submitting the file of the interviews at the Director’s office. He did not get involved beyond that point. He confirmed during cross examination that he was not involved beyond making the recommendations and submitting the file to the Director.
CLOSING ARGUMENTS
15. The applicant’s representative argued that the applicant has been an educator in a secondary school for twenty nine (29) years, of which fifteen (15) years he was a deputy principal. It is common cause that he acted on a position of a principal several times. He had performed and is knowledgeable about all the functions as prescribed by section 16A of the South African Schools Act 84 of 1996. The motivation by the panel for his appointment is comprehensive and well detailed, versus that of the incumbent which is just ``generic``. This makes him the best suitable candidate for the position.
16. He demonstrated during cross examination that when the post was advertised in Vacancy Circular 3 of October 2020 there was absolutely no indications of the respondent`s equity plan. The respondent’s Employment Equity Plan came long after the interviews were concluded. This plan could have only been known by the senior officials of the department.
17. The respondent `s representative failed to prove that the equity grid was made available. He was not decisive whether to use the grid in circular 9 of 2020 or mainly rely on the April 2021 grid.
18. The assertion by the respondent that the submission made by Mr J. Coetzee, the CD: Strategic HR management of the insignificant in scores is neither here nor there. The incumbent is favoured by the respondent for equity purposes, regardless of her poor performance and motivations by the panel. In South African Police Service vs Inspector Zandberg and others (JR1162/08- PP/CD 9 JUDGEMENT ) the court held that `` Equity means fairness
and justice, to the candidate and to the people they serve. Fairness and justice cannot prevail if candidate who are less than best, who are less suitable and less meritorious are appointed.
19. The very same circular 7.1. ( e) reads as follows ;``Should subject a number of applicants invited to the interviews to applicable legislation and collective agreement as well as competency assessment to strengthen selection process as per the Recruitment and Selection guidelines. It is the applicant`s submission that competency assessment can only be attained through the ranking of candidates according to their performance during the interview. The respondent compromised the integrity of the process by appointing the 2nd respondent. and has compromised the best interest of the child by appointing a weaker candidate to the post.
20. The decision of the HOD to appoint the incumbent is unfair and a clear indication of bias. The issue of equity was just used as a scapegoat with no indication that Circular 09/2020 was diligently interrogated as a tool for appointment. Therefore, the respondent had committed an act of unfair labour practice.
ANALYSIS OF EVIDENCE AND ARGUMENT
21. The applicant bears the onus to prove that the respondent committed an act of
unfair labour practice when it did not appoint him to the promotional post. In Sun International Management (Pty) Ltd v CCMA and others (JR 939/14) LC ,the court held that in promotion disputes, it is not enough to merely show that there is a breach of protocol or procedures in the recruitment process. It is also necessary for an Employee to show that the breach of the procedure had unfairly prejudiced him. This means that the employee must not merely show that he was the suitable candidate for consideration, but that he was the best candidate.
22. According to the vacancy circular 3 of 2020 the post was published on 15 October 2020 with the closing date of 23 October 2020. In terms of clause 5.2. of the circular, a minimum experience of 7 years as educator for the position of a principal was required. It is a common cause that the 2nd Respondent was an educator for 25 years.
23. According to the interview minutes, she was the deputy principal at the time of appointment. The applicant’s contention which is not supported by any evidence is that she was a primary school principal. However, it is immaterial if she was a primary school principal or deputy principal as either way, she met the required experience for the position. There is no evidence proving that the HOD decision to appoint the incumbent was based on her being the deputy principal.
24. The applicant’s contention that the incumbent did not qualify for the position because she lacked experience as deputy principal of the high school and that she possessed primary teachers diploma is misdirected. The applicant conveniently failed to mention that 2nd Respondent possessed a master degree, which the applicant is still studying towards. She has more qualifications amongst others, honors degree than the applicant.
25. I accept that the applicant has demonstrated more managerial experience than the incumbent as he has been the deputy principal for 15 years. This is because he has acted on the contested position on 5 occasions, with the last being for 12 months consecutive months. The applicant failed to appreciate the fact that experience was not the only consideration for the appointment.
.
26 The existence of circular 9 of 2020 dated 13 October 2020 is not in dispute.
The circular relates to the implementation of the Employment Equity Plan. The
distribution is among others to `` All principals and staff or all public ordinary
schools.
27. I agree with the applicant that the interview score is another factor considered for the recommendation and appointment. The applicant conceded that the outcome of the interview panel is a recommendation and that the HOD is vested with the powers to appoint any of the top three recommended candidates. The incumbent was recommended second.
28. I must determine if the HOD’s deviation from appointing the recommended candidate is justifiable and fair. Clause 3.4 of the vacancy circular, provides that women and people with disabilities are encouraged to apply and preference will be given to the underrepresented groups as the GDE Employment Equity Targets as in circular for the implementation of Employment Equity Plan No.09 of 2020.
29. The link between this Equity plan and the advertised post is distinguishable.
The plan was issued shortly following the advertisement and prior to the
shortlisting and interviews. Clause 3.3. of the vacancy circular, provides that in
advertising and filling of the vacant post the department will be guided by policy
guiding viz :
• Employment Equity measure for designated groups namely black
people in general [which include Indians, Coloured and Africans]
women and people with disabilities.
• representativity.
30. Circular 9, Table 4(c) : School principal provides that there are more male principals than females which shows a gender imbalance favouring male employees. Table 6 (a) : Under represented employees, the goal was to achieve 763 principals in 2020/21 and 789 principals in 2021/ 2022 from 736 baseline in 12/2019
31. The strategy to achieve the targets should among others:-
(a ) fast track the recruitment of underrepresented occupational levels and
Groups, the Department will use open advertisement and shall indicate if
it is an equity post .
(b) ensure that recommendations and appointment must address the under
representation according to the gender and race.
32. The October grid which is sound and clear is applicable. It is not in dispute
that women were underrepresented on the level of principals. It is clear from
the vacancy circular that circular 9 equity plan was going to be applicable on
advertised position.
33. The applicant’s contention that the respondent failed to state that it was an equity position is a fallacy. This is corroborated by the Director: recruitment & selection noting that HOD to further note Equity plan report of April 2021 as attached. It is misleading for the applicant to suggest that the Director supported his recommendation but she signed off “supported as amended”, which is appointment based on equity i.e female candidate.
34. This is further proven in AB 22, where the director reported to the HOD that “the minutes of the process including the shortlisting criteria reflects that equity was considered, however the candidates are recommended based on competency. If there was equity plan in place, it should not have been considered during the shortlisting process. It is not in dispute that the interview panel deviated from considering equity but based its recommendation based on competency i.e score. There was no motivation for deviation.
35. Both the CD:Strategic HR management and Deputy Director General supported as amended, the appointment of the second ranked candidate who is a female. The HOD approved the appointment of a female candidate after applying his mind. It is common cause that the interview panel decision is a recommendation subject to the discretion and final decision of the HOD.
36. The implementation of employment equity did not come from nowhere. It came from the circular 03 and 09 of 2020. For the reason, that the vacancy circular was clear that equity was applicable, it becomes immaterial which plan was applicable i.e October 2020 or April 2021 grid. It is substantiated by the fact that both indicate that females are under-represented with the plan to address gender equity. It is not unfair to apply the April 2021 grid because it became available before the appointment and the advertisement referenced the application of Employment equity.
27. It is not true that the incumbent performed poorly in the interviews but five points below the applicant. I agree with the respondent that the score gap is not substantial proving her competency to the position. The implementation of gender equity and the HOD decision is justifiable and fair.
28. The Court in City of Cape Town v SA Municipal Workers Union on behalf of Sylvester and others (2013) 34 ILJ 1156 (LC), held that in deciding whether or not the employer had acted unfairly in failing or refusing to promote the employee, relevant factors to consider include whether the failure or refusal to promote was motivated by unacceptable, irrelevant or invidious considerations on the part of the employer; or whether the employer’s decision was motivated by bad faith, was arbitrary, capricious, unfair or discriminatory; whether there were insubstantial reasons for the employer’s decision not to promote; whether the employer’s decision not to promote was based upon a wrong principle or was taken in a biased manner; whether the employer failed to apply its mind to the promotion of the employee; or whether the employer failed to comply with applicable procedural requirements related to promotions. The list is not exhaustive.
29. The applicant was able to prove that he was the suitable candidate in terms of score but not the best suitable for the position as required by the court decision in Sun International case, supra. The applicant failed to discharge his onus in proving that the decision taken by the respondent in not promoting him was based on any of the negative aspects mentioned in the City of Cape Town case above and his closing arguments. In the premise, he failed to prove on the balance of probabilities that the respondent committed an act of unfair labour practice.
AWARD
30. The respondent did not commit an act of unfair labour practice.
31. The dispute is dismissed.
Signed and dated at Pretoria on this 08th day of April 2022.
MG Rabyanyana
M.G Rabyanyana
ELRC Panellist
CASE NO.: ELRC 562-21/22 GP
In the matter between:-
SHONGWE.MZANYWA JEFFREY APPLICANT
and
DEPARTMENT OF EDUCATION- GAUTENG RESPONDENT
SEBASHEGO D 2nd RESPONDENT
ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
HEARD: 16 MARCH 2022
CLOSING ARGUMENTS: 23 MARCH 2022
DATE OF AWARD: 08 April 2022
SUMMARY: Labour Relations Act 66 of 1995 –Section 186(2)(b) – Unfair Labour Practice by employer relating to promotion.
ARBITRATION AWARD
DETAILS OF HEARING AND REPRESENTATION
1. A virtual arbitration was held on 16 March 2022.The Applicant was represented by Mr T. Monyatsi, union official of SADTU. The respondent was represented by Mr S.Nawa, its Deputy Chief Education Specialist: Labour Relations. The proceedings were recorded digitally. The parties were given until 23 March 2022 to submit their closing arguments. The respondent failed to submit the closing arguments.
BACKGROUND TO THE ISSUE
2. The Applicant had referred the dispute of unfair labour practice relating to promotion to the Council for Conciliation. The dispute could not be resolved and a certificate of outcome of conciliation to that effect was issued. The applicant then requested that the dispute be arbitrated.
ISSUE TO BE DECIDED
3. I am required to decide whether the respondent’s failure to appoint the Applicant to the position of a Principal at Lefa-Ifa Secondary School, amounts to an unfair labour practice. The appropriate relief should I find in favour of the applicant. The Applicant seeks to be appointed on the position in dispute
AGREED FACTORS
4. The parties agreed to the following factors as being common cause:-
4.1 The applicant has been a deputy principal at Lefa-Ifa Secondary School for the past 15 years.
4.2 The post for a school principal: GE 30ED 1008 was advertised during October 2020. The applicant was shortlisted for interviews.
4.3 The interviews were conducted on 12 March 2021.The applicant scored the highest in the interviews and ranked number one. The interview panel recommended him for the position. The recommendation was ratified by the School Governing Body “SGB”.
4.4 The 2nd respondent is the successful incumbent. She scored second and was ranked number 2 in terms of the recommendation list of the interview panel.
SURVEY OF ARGUMENTS AND EVIDENCE
5. Mzanywa Jeffrey Shongwe testified that he has twenty-one (21) years’ experience as Educator, of which 15 years he was a Deputy Principal at the school the dispute relates to. He was the best candidate as he scored highest, recommended by the interview panel. The recommendation was ratified by SGB and signed by the director.
6. He was surprised when the 1st Respondent informed him that he was not appointed to the position because of the gender equity plan. The 2nd Respondent incumbent is not the best suitable candidate because she has a primary education [Senior Primary Teachers Diploma] not High School as compared to him. He has a Secondary Teachers Diploma and is currently studying for a Master’s degree.
7. The 1st Respondent relied on the Equity plan on bundle AB15 which was not part of the vacancy list. The interviews were held on 12 March 2021 and the grid is dated 30 April 2021, post the interviews.
8. The 2nd Respondent has never been a Deputy Principal. She came from post level 1 straight to principalship at a primary school. She was only a primary school principal for six months before taking the current position. There is a huge difference between high school and primary school education. Scores play important role in the interviews. He disputes that the different score between his and the 2nd Respondent of 5 points is insignificant. He scored 63 and the 2nd Respondent scored 58 points.
9. The motivation on AB17-18 of the interview panel for his recommendation which is more detailed is evidence that he is the best suitable candidate. The 2nd Respondent`s motivation on AB18 is generic and not detailed.
10. The Head of Department (``HOD``) is not close to the schools like the Director who signed and supported for the recommendation for his appointment on AB21. The HOD does not know the performance and candidates. The Director signed the recommendation with awareness because he knew him and is close to schools. The HOD took a decision based on the wrong information that the 2nd respondent was a deputy principal which was not true. He has acted on the principal position several times.
11. During cross examination, he testified that the last time he acted on the principal position for 12 consecutive months. He acted on the contested position on five (5) separate occasions. His acting is evidence that he has vast experience.
12. The fact that the Director signed the recommendation of the panel proves that he was the best suitable candidate. He is aware that the HOD is vested with the powers to appoint anyone of the top three candidates recommended by the panel.
13. When a version was put to him that the gender equity plan in terms of circular 09 of October 2020 and April 2021 was applied in the appointment of the incumbent, his response was that the gender equity grid is not a justifiable ground because it was not in existence. It came after the interviews. The post was not identified as that of a gender equity. The decision of the HOD on AB 21, was not correct because it was based on the wrong information that the incumbent had acted as the deputy principal.
14. Tebogo Joseph Ndlovu testified for the respondent that he was the interview panelist. The panel recommended the applicant. His role ended upon submitting the file of the interviews at the Director’s office. He did not get involved beyond that point. He confirmed during cross examination that he was not involved beyond making the recommendations and submitting the file to the Director.
CLOSING ARGUMENTS
15. The applicant’s representative argued that the applicant has been an educator in a secondary school for twenty nine (29) years, of which fifteen (15) years he was a deputy principal. It is common cause that he acted on a position of a principal several times. He had performed and is knowledgeable about all the functions as prescribed by section 16A of the South African Schools Act 84 of 1996. The motivation by the panel for his appointment is comprehensive and well detailed, versus that of the incumbent which is just ``generic``. This makes him the best suitable candidate for the position.
16. He demonstrated during cross examination that when the post was advertised in Vacancy Circular 3 of October 2020 there was absolutely no indications of the respondent`s equity plan. The respondent’s Employment Equity Plan came long after the interviews were concluded. This plan could have only been known by the senior officials of the department.
17. The respondent `s representative failed to prove that the equity grid was made available. He was not decisive whether to use the grid in circular 9 of 2020 or mainly rely on the April 2021 grid.
18. The assertion by the respondent that the submission made by Mr J. Coetzee, the CD: Strategic HR management of the insignificant in scores is neither here nor there. The incumbent is favoured by the respondent for equity purposes, regardless of her poor performance and motivations by the panel. In South African Police Service vs Inspector Zandberg and others (JR1162/08- PP/CD 9 JUDGEMENT ) the court held that `` Equity means fairness
and justice, to the candidate and to the people they serve. Fairness and justice cannot prevail if candidate who are less than best, who are less suitable and less meritorious are appointed.
19. The very same circular 7.1. ( e) reads as follows ;``Should subject a number of applicants invited to the interviews to applicable legislation and collective agreement as well as competency assessment to strengthen selection process as per the Recruitment and Selection guidelines. It is the applicant`s submission that competency assessment can only be attained through the ranking of candidates according to their performance during the interview. The respondent compromised the integrity of the process by appointing the 2nd respondent. and has compromised the best interest of the child by appointing a weaker candidate to the post.
20. The decision of the HOD to appoint the incumbent is unfair and a clear indication of bias. The issue of equity was just used as a scapegoat with no indication that Circular 09/2020 was diligently interrogated as a tool for appointment. Therefore, the respondent had committed an act of unfair labour practice.
ANALYSIS OF EVIDENCE AND ARGUMENT
21. The applicant bears the onus to prove that the respondent committed an act of
unfair labour practice when it did not appoint him to the promotional post. In Sun International Management (Pty) Ltd v CCMA and others (JR 939/14) LC ,the court held that in promotion disputes, it is not enough to merely show that there is a breach of protocol or procedures in the recruitment process. It is also necessary for an Employee to show that the breach of the procedure had unfairly prejudiced him. This means that the employee must not merely show that he was the suitable candidate for consideration, but that he was the best candidate.
22. According to the vacancy circular 3 of 2020 the post was published on 15 October 2020 with the closing date of 23 October 2020. In terms of clause 5.2. of the circular, a minimum experience of 7 years as educator for the position of a principal was required. It is a common cause that the 2nd Respondent was an educator for 25 years.
23. According to the interview minutes, she was the deputy principal at the time of appointment. The applicant’s contention which is not supported by any evidence is that she was a primary school principal. However, it is immaterial if she was a primary school principal or deputy principal as either way, she met the required experience for the position. There is no evidence proving that the HOD decision to appoint the incumbent was based on her being the deputy principal.
24. The applicant’s contention that the incumbent did not qualify for the position because she lacked experience as deputy principal of the high school and that she possessed primary teachers diploma is misdirected. The applicant conveniently failed to mention that 2nd Respondent possessed a master degree, which the applicant is still studying towards. She has more qualifications amongst others, honors degree than the applicant.
25. I accept that the applicant has demonstrated more managerial experience than the incumbent as he has been the deputy principal for 15 years. This is because he has acted on the contested position on 5 occasions, with the last being for 12 months consecutive months. The applicant failed to appreciate the fact that experience was not the only consideration for the appointment.
.
26 The existence of circular 9 of 2020 dated 13 October 2020 is not in dispute.
The circular relates to the implementation of the Employment Equity Plan. The
distribution is among others to `` All principals and staff or all public ordinary
schools.
27. I agree with the applicant that the interview score is another factor considered for the recommendation and appointment. The applicant conceded that the outcome of the interview panel is a recommendation and that the HOD is vested with the powers to appoint any of the top three recommended candidates. The incumbent was recommended second.
28. I must determine if the HOD’s deviation from appointing the recommended candidate is justifiable and fair. Clause 3.4 of the vacancy circular, provides that women and people with disabilities are encouraged to apply and preference will be given to the underrepresented groups as the GDE Employment Equity Targets as in circular for the implementation of Employment Equity Plan No.09 of 2020.
29. The link between this Equity plan and the advertised post is distinguishable.
The plan was issued shortly following the advertisement and prior to the
shortlisting and interviews. Clause 3.3. of the vacancy circular, provides that in
advertising and filling of the vacant post the department will be guided by policy
guiding viz :
• Employment Equity measure for designated groups namely black
people in general [which include Indians, Coloured and Africans]
women and people with disabilities.
• representativity.
30. Circular 9, Table 4(c) : School principal provides that there are more male principals than females which shows a gender imbalance favouring male employees. Table 6 (a) : Under represented employees, the goal was to achieve 763 principals in 2020/21 and 789 principals in 2021/ 2022 from 736 baseline in 12/2019
31. The strategy to achieve the targets should among others:-
(a ) fast track the recruitment of underrepresented occupational levels and
Groups, the Department will use open advertisement and shall indicate if
it is an equity post .
(b) ensure that recommendations and appointment must address the under
representation according to the gender and race.
32. The October grid which is sound and clear is applicable. It is not in dispute
that women were underrepresented on the level of principals. It is clear from
the vacancy circular that circular 9 equity plan was going to be applicable on
advertised position.
33. The applicant’s contention that the respondent failed to state that it was an equity position is a fallacy. This is corroborated by the Director: recruitment & selection noting that HOD to further note Equity plan report of April 2021 as attached. It is misleading for the applicant to suggest that the Director supported his recommendation but she signed off “supported as amended”, which is appointment based on equity i.e female candidate.
34. This is further proven in AB 22, where the director reported to the HOD that “the minutes of the process including the shortlisting criteria reflects that equity was considered, however the candidates are recommended based on competency. If there was equity plan in place, it should not have been considered during the shortlisting process. It is not in dispute that the interview panel deviated from considering equity but based its recommendation based on competency i.e score. There was no motivation for deviation.
35. Both the CD:Strategic HR management and Deputy Director General supported as amended, the appointment of the second ranked candidate who is a female. The HOD approved the appointment of a female candidate after applying his mind. It is common cause that the interview panel decision is a recommendation subject to the discretion and final decision of the HOD.
36. The implementation of employment equity did not come from nowhere. It came from the circular 03 and 09 of 2020. For the reason, that the vacancy circular was clear that equity was applicable, it becomes immaterial which plan was applicable i.e October 2020 or April 2021 grid. It is substantiated by the fact that both indicate that females are under-represented with the plan to address gender equity. It is not unfair to apply the April 2021 grid because it became available before the appointment and the advertisement referenced the application of Employment equity.
27. It is not true that the incumbent performed poorly in the interviews but five points below the applicant. I agree with the respondent that the score gap is not substantial proving her competency to the position. The implementation of gender equity and the HOD decision is justifiable and fair.
28. The Court in City of Cape Town v SA Municipal Workers Union on behalf of Sylvester and others (2013) 34 ILJ 1156 (LC), held that in deciding whether or not the employer had acted unfairly in failing or refusing to promote the employee, relevant factors to consider include whether the failure or refusal to promote was motivated by unacceptable, irrelevant or invidious considerations on the part of the employer; or whether the employer’s decision was motivated by bad faith, was arbitrary, capricious, unfair or discriminatory; whether there were insubstantial reasons for the employer’s decision not to promote; whether the employer’s decision not to promote was based upon a wrong principle or was taken in a biased manner; whether the employer failed to apply its mind to the promotion of the employee; or whether the employer failed to comply with applicable procedural requirements related to promotions. The list is not exhaustive.
29. The applicant was able to prove that he was the suitable candidate in terms of score but not the best suitable for the position as required by the court decision in Sun International case, supra. The applicant failed to discharge his onus in proving that the decision taken by the respondent in not promoting him was based on any of the negative aspects mentioned in the City of Cape Town case above and his closing arguments. In the premise, he failed to prove on the balance of probabilities that the respondent committed an act of unfair labour practice.
AWARD
30. The respondent did not commit an act of unfair labour practice.
31. The dispute is dismissed.
Signed and dated at Pretoria on this 08th day of April 2022.
MG Rabyanyana
M.G Rabyanyana
ELRC Panellist