PSES115-18/19WC
Text
ELRC423-21/22GP
Award Date:
09 May 2022
Panellist: V Naidoo
Case No.: ELRC625-20/21KZN
Date of Award: 09 May 2022
In the matter between:
NAPTOSA obo B Brijlal
Applicants
and
Department of Education – KZN
First Respondent
MS Shangase
Second Respondent
Union/Applicants’ representative: Ms I Dhanook
NAPTOSA
First Respondent’s representative: Mr I Pillay
Second Respondent’s representative: No Appearance
DETAILS OF THE HEARING AND REPRESENTATION
1. This is an arbitration award in respect of an unfair labour practice dispute relating to promotion between NAPTOSA obo Brijlal, the Applicant, the Department of Education, KZN, First Respondent and Mr MS Shangase, Second Respondent.
2. The hearing was held in virtually on 15 February 2022 and in person on 14 March 2022. The proceedings were conducted in English and recorded electronically and closing arguments were to submitted no later than 25 March 2022. Both parties complied.
3. Applicant was represented by Ms I Dhanook of NAPTOSA, First Respondent was represented by Deputy Director: Human Resource Management, Mr I Pillay and Second Respondent was not in attendance. First Respondent indicated that Second Respondent voluntarily did not appear. It was submitted that he was confident that he would not be impacted by the outcome and therefore did not wish to participate. Having satisfied myself that he was correctly served and did not wish to participate, I continued in his absence.
4. Bundles of documents were admitted into evidence and marked Bundles A and B. Pre-arbitration minutes form part of the bundles.
ISSUE TO BE DECIDED
5. The issue to be decided is whether First Respondent had committed an unfair labour practice in not appointing Applicant to the position of Chief Education Specialist: School Governance – Umlazi District (OBE36/2020) in terms of HRM Circular 28 of 2020.
6. In terms of the pre-arbitration minutes the specific issues in dispute are:
6.1 Applicant is the best candidate for the post
6.2 Respondent 2 has no experience in governance at district level
6.3 Questions for the interviews were not formulated by the entire committee
6.4 Questions asked were not suited to the advertised post
6.5 The interview committee has no expert/ did not include anyone with an in-depth knowledge of school governance
6.6 The interview committee were not duly appointed by the HOD
6.7 The applicant was acting in the position since 2018 to the date that it was filled by the second respondent.
6.8 Unions were not invited
BACKGROUND TO THE DISPUTE
7. It is common cause that Applicant is currently a Senior Education Specialist – School Governance, in the Umlazi District (SES). He applied for post OBE36/2020 per HRM Circular 28 of 2020, for the position of Chief Education Specialist: School Governance – Umlazi District. Applicant’s annual salary is R624 987 and is on post level 4.
8. Second Respondent was not an employee of First Respondent at the time of applying for the post. He was previously employed as a Principal from 2001 to 2012, when he resigned. He scored higher than Applicant by the Interview Committee (IC). Applicant was ranked third after a Mr Ntanjane and Second Respondent. The scores were as follows:
Shangase (Second Respondent) – 41.6
Ntanjane – 34.6 and
Brijlal (Applicant) – 31.4
9. Applicant lodged a grievance related to the post within the prescribed time-frame. The grievance was not heard and Second Respondent was appointed to the post.
SUMMARY OF THE EVIDENCE AND ARGUMENT
10. In terms of section 138(7)(a) of the Labour Relations Act 66 of 1995 (“the Act”) I am required to issue an award with “brief reasons”. I do not propose to offer an exhaustive survey of all the evidence and argument led at the arbitration hearing, most of which are contained in the background to the dispute above. What follows is a summary of the evidence relevant to my findings only.
Applicant’s Case
11. Applicant testified to his appointment as Acting Chief Education Specialist in the Umlazi District, essentially fulfilling the duties of the post in dispute. He served First Respondent as Senior Education Specialist for 22 years.
12. He was invited to the interview on 11 November 2020 and the interview was scheduled for 18 November 2020 at 13.00 . Notwithstanding, per the union invitation, short-listing was scheduled to take place on 18 November 2020 at 08.00.
13. Only SADTU was present at the interview. A second union was not present. Applicant felt unprotected during the interview and was upset that his union was not present. He established that they were not invited. He lodged a grievance.
14. Applicant’s grievance was heard in his absence. His union provided feedback that he was not invited and it was an oversight by First Respondent.
15. The minutes of the interview process shows that only a SADTU union official was in attendance. However the confidentiality declaration form had been signed by an Mkhize of CTU “ATU”. He was not present at the process and was asked to sign a bundle of documents at First Respondent’s office for another process in which he participated. It is believed that the document formed part of that bundle of documents signed by Mkhize.
16. Applicant testified to the role of the observer in the process. He further confirmed the scores of each of the recommended candidates and submitted that he was a better candidate than the other two. Ntanjane understudies him as he has been supervising Ntanjane for three years. It is unclear how many positions Shangase had applied for. There is no preference list of posts applied for by Second Respondent, that forms part of the application documentation.
17. In terms of HRM Circular 5 of 2017,6 relating to re-appointment after a break in service, at paragraph 5, “under no circumstances must educators who are returning after a break in service be allowed to assume duty without the necessary prior approval from the Head of Department.”
18. From Second Respondent’s CV, he had no experience in school governance compared with his 22 years. Second Respondent had no experience outside of being a Principal and he was out of service since 2012.
19. His scoring for the interview was deliberately low, based on the quality of his answers. Ntanjane's and Shangase's assessment forms have no scores. It therefore suggests that the process was a paper based exercise. This does not correlate with Shangase having scored the highest. Applicant believed he was the best candidate for the post.
20. Short-listing criteria was not provided. Applicant could therefore not make an assessment of whether short-listing was fair.
21. Under cross-examination by First Respondent, Applicant could not provide documentation to confirm that he acted in the role on both occasions (prior to and subsequent to the appointment of Second Respondent.) He confirmed not having received an allowance for the acting position either. He had no expectation in this regard and focussed more on fulfilling the role and making a difference.
22. Applicant acknowledged the structure of Senior Education Specialist reporting into the Deputy Chief Specialist who reports to the Chief Education Specialist, in theory only. However, he submitted that there was never a Deputy Chief Specialist in practice and he had no supervisor.
23. It was put to Applicant that based on his CV, he moved from Educator to Lecturer to SES. He was never a Principal and a Principal post is supervisory in nature. He therefore ought not to have been short-listed for the post. Applicant disputed this.
24. In terms of Education, he conceded that Ntanjane has a Masters Degree, however his current role only deals with one arm of governance, namely safety and security. He has been SES since 2012 and deals with all arms of governance. It was put to Applicant that he had no operational experience of governance in schools. He maintained that he trains school based practitioners on governance. He disputed that he did not meet the requirements for the post and as SES, he supervises approximately 500 schools.
25. Applicant accepted that unions do not score, however, the ensure that the process is fair by observing the process. They have the right to raise objections if unfairness is observed. He disputed that this meant they may manipulate the scoring to benefit their candidate.
26. With reference to HRM5/2017, it was disputed that the circular only deals with educator posts and not substantive office based posts. Applicant responded that something not contained in the document cannot be read into it. He maintained that he trains, monitors and has been a part of school governing bodies.
27. In re-examination Applicant confirmed that he held a B Ed Degree on the level of Honors and Second Respondent held a B Paed Degree.
28. Christopher S Mkhize (“Mkhize”) testified as the NATU union representative whose signature appears on the confidentiality forms for the interview process. He was not an observer for the process. He sat on another interview process and was asked to go to First Respondent’s office to sign documents pertaining to that process. He may have signed this in error thinking it was for the other process.
29. Mkhize confirmed that he was responsible for receiving invitations at the time and he did not receive an invitation to this process.
First Respondent’s Case
30. First Respondent elected not to lead any witnesses and closed their case.
31. Heads of Argument forms part of the record and will not be repeated.
ANALYSIS OF EVIDENCE AND ARGUMENT
32. S186(2)(a) of the LRA protects employees from any unfair act or omission that arises between an employer and employee involving unfair conduct by the employer relating to promotion, demotion etc. There must be a higher post for which the employee applied than the post the employee occupied. Dissatisfaction or a general perception of unfairness is not sufficient. Whether the employer has committed an unfair labour practice is an objective, factual enquiry.
33. First Respondent referred me to Head, Western Cape Education Department and others v Governing Body, Point High School and others to advise that it is not the task of the arbitrator to decide whether the employer had arrived at the correct decision. I note however:
“While it is trite that a court should always be chary of obtruding its views and decisions into an administrative system when it considers that there has been reviewable action, this is clearly a case where the learned judge’s approach was justified.”
34. I was also reminded that the role of the arbitrator is to oversee that the employer did not act unfairly towards the candidate that was not promoted. I was referred to SAPS v SSSBC and SAPS v PSA to substantiate this.
35. I take note that the onus to show the existence of the conduct or decision complained of, falls on the Applicant, however, in Pamplin v Western Cape Education Department, the Court emphasized that the employer is obliged to defend challenges to the substance and procedural fairness, if it wishes to avoid a negative outcome.
36. Accordingly, there is an obligation on First Respondent to provide evidence that it acted fairly and in good faith during the promotion exercise.
37. In Arries v CCMA & Others the Labour Court made the following remarks:
1. The decision making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed;
2. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised.
38. In City of Cape Town v SA Municipal Workers Union obo Sylvester & Others the Labour Court held that when arbitrators make an assessment whether the failure to promote constitutes an unfair labour practice, the test is one of fairness, taking into account inter alia the following:
1. Whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the employer;
2. Whether the employer’s decision was arbitrary, or capricious, or unfair;
3. Whether the employer failed to apply its mind to the promotion of the employee;
4. Whether the employer’s decision not to promote was motivated by bad faith;
5. Whether the employer’s decision not to promote was discriminatory;
6. Whether there was insubstantial reasons for the employer’s decision not to promote;
7. Whether the employer’s decision not to promote was based upon a wrong principle; or
8. Whether the employer’s decision not to promote was taken in a biased manner.
39. I cannot consider the following issues as issues placed in dispute in the pre-arbitration minutes as no evidence was led on them:
39.1 Questions for the interviews were not formulated by the entire committee
39.2 Questions asked were not suited to the advertised post
39.3 The interview committee has no expert/ did not include anyone with an in-depth knowledge of school governance
39.4 The interview committee were not duly appointed by the HOD
40. I now turn to deal with the remaining issues in dispute.
The applicant was acting in the position since 2018 to the date that it was filled by the Second Respondent.
41. Applicant testified to his acting in the role as Chief Education Specialist prior to Second Respondent’s appointment and subsequent to his appointment. He conceded to the organogram theoretically and maintained that he was unsupervised since his appointment. I have no reason to doubt his version and in the absence of any opposing version, I see no reason to doubt his testimony in this regard.
Unions were not invited
42. The invitation to observe the interview process that was admitted into evidence is addressed only to SADTU and there was no evidence presented to suggest that any other union was invited to the interview process. Mkhize testified on behalf of CTU ATU that he was the direct contact person and no such invitation was received. This version was not challenged by First Respondent. On a balance of probability, I therefore find that none of the unions that form CTU ATU were invited to the process.
Respondent 2 has no experience in governance at district level
43. Whilst First Respondent argues that governance experience at district level is not an inherent requirement for the post in terms of the advertisement, they had agreed to place the issue in dispute at the pre-arbitration conference and I would be remiss not to address the issue.
44. It is common cause that Second Respondent was a principal at the time of his resignation from the Department in 2012. His application for the post has been admitted into evidence to confirm his experience and in the absence of evidence to suggest otherwise, I find that Second Respondent did not have experience at district level prior to his appointment.
Applicant is the best candidate for the post
45. The final issue in dispute is whether Applicant was the best candidate for the post. First Respondent argues that this issue falls outside of the jurisdiction of a Commissioner, However, in Buffalo City Public FET College v CCMA and others , it was held that the onus falls on the employee to prove that he is the better candidate for the position in question.
46. To this end, I have considered the evidence of Applicant who came across clear and credible. He withstood vigorous cross-examination and did not waver in his testimony. I have also considered that Respondent failed to defend their case. I therefore essentially have only Applicant’s version before me, with no reason to doubt his evidence.
47. Additionally, there was no explanation provided for how candidates were short-listed and what criteria was used. There was no explanation provided for the invitation for interview being issued prior to short-listing being undertaken. Whilst Applicant was cross-examined on whether he was acting in the role, no version was presented to suggest otherwise. There was no explanation provided for why only SADTU was invited to the interview process and why the process continued in the face of all of the irregularities. The content of HRM Circular 5/ 2017 was disputed, however there was no testimony provided to dispute Applicant’s interpretation of the document.
48. There is also no reasonable justification for the lack of scores for the two candidates who, per First Respondent, scored higher than Applicant in the interview process. There is no explanation provided for the lack of discovery per the ruling of the previous Commissioner. It is my view that a negative inference ought to be drawn from the failure to discover documentation that the Applicant considered to be material to their case.
49. On the basis of the above, there is no evidence placed before me to suggest that there was an acceptable, rational or fair reason for the decision to appoint Second Respondent or to suggest that a fair process was undertaken.
50. In substantiation of my view that the interview process was flawed, in cross-examination of Applicant, First Respondent maintained that Applicant had not met the inherent requirements for the post as he was never a Principal with operational experience in managing a school. He further submitted that Applicant lacked the relevant years of teaching experience, per his misdirection of the requirements for the post. If his version is to be accepted, this further illustrates that the process was significantly flawed.
51. It is glaringly obvious from the submissions made that Applicant was treated unfairly. It is therefore my view that the requirements in both Arries and City of Cape Town have been met in Applicant’s claim.
52. In light of all of the circumstances, I find that First Respondent was procedurally and substantively unfair in not promoting Applicant to the post of Chief Education Specialist: Governance and Management with post reference no OBE36/2020.
53. I have taken cognisance of the fact that Applicant is due to retire in August 2022. In light of the circumstances, it is my view that it is just and equitable to award Applicant compensation in the equivalent of 6 months remuneration. This is calculated as R624 987/ 2 = R312 493.50.
AWARD
54. First Respondent, the Department of Education – KZN has committed an unfair labour practice by not promoting Applicant, B Brijlal to the position of Chief Education Specialist: Governance and Management with post reference no OBE36/2020.
55. First Respondent, the Department of Education – KZN is required to compensate Applicant, B Brijlal in the amount of R312 493.50 no later than 30 days from the date of the award.
Dated at Durban on this 09th day of May 2022.
ELRC Panellist
Vashnee Naidoo
Case No.: ELRC625-20/21KZN
Date of Award: 09 May 2022
In the matter between:
NAPTOSA obo B Brijlal
Applicants
and
Department of Education – KZN
First Respondent
MS Shangase
Second Respondent
Union/Applicants’ representative: Ms I Dhanook
NAPTOSA
First Respondent’s representative: Mr I Pillay
Second Respondent’s representative: No Appearance
DETAILS OF THE HEARING AND REPRESENTATION
1. This is an arbitration award in respect of an unfair labour practice dispute relating to promotion between NAPTOSA obo Brijlal, the Applicant, the Department of Education, KZN, First Respondent and Mr MS Shangase, Second Respondent.
2. The hearing was held in virtually on 15 February 2022 and in person on 14 March 2022. The proceedings were conducted in English and recorded electronically and closing arguments were to submitted no later than 25 March 2022. Both parties complied.
3. Applicant was represented by Ms I Dhanook of NAPTOSA, First Respondent was represented by Deputy Director: Human Resource Management, Mr I Pillay and Second Respondent was not in attendance. First Respondent indicated that Second Respondent voluntarily did not appear. It was submitted that he was confident that he would not be impacted by the outcome and therefore did not wish to participate. Having satisfied myself that he was correctly served and did not wish to participate, I continued in his absence.
4. Bundles of documents were admitted into evidence and marked Bundles A and B. Pre-arbitration minutes form part of the bundles.
ISSUE TO BE DECIDED
5. The issue to be decided is whether First Respondent had committed an unfair labour practice in not appointing Applicant to the position of Chief Education Specialist: School Governance – Umlazi District (OBE36/2020) in terms of HRM Circular 28 of 2020.
6. In terms of the pre-arbitration minutes the specific issues in dispute are:
6.1 Applicant is the best candidate for the post
6.2 Respondent 2 has no experience in governance at district level
6.3 Questions for the interviews were not formulated by the entire committee
6.4 Questions asked were not suited to the advertised post
6.5 The interview committee has no expert/ did not include anyone with an in-depth knowledge of school governance
6.6 The interview committee were not duly appointed by the HOD
6.7 The applicant was acting in the position since 2018 to the date that it was filled by the second respondent.
6.8 Unions were not invited
BACKGROUND TO THE DISPUTE
7. It is common cause that Applicant is currently a Senior Education Specialist – School Governance, in the Umlazi District (SES). He applied for post OBE36/2020 per HRM Circular 28 of 2020, for the position of Chief Education Specialist: School Governance – Umlazi District. Applicant’s annual salary is R624 987 and is on post level 4.
8. Second Respondent was not an employee of First Respondent at the time of applying for the post. He was previously employed as a Principal from 2001 to 2012, when he resigned. He scored higher than Applicant by the Interview Committee (IC). Applicant was ranked third after a Mr Ntanjane and Second Respondent. The scores were as follows:
Shangase (Second Respondent) – 41.6
Ntanjane – 34.6 and
Brijlal (Applicant) – 31.4
9. Applicant lodged a grievance related to the post within the prescribed time-frame. The grievance was not heard and Second Respondent was appointed to the post.
SUMMARY OF THE EVIDENCE AND ARGUMENT
10. In terms of section 138(7)(a) of the Labour Relations Act 66 of 1995 (“the Act”) I am required to issue an award with “brief reasons”. I do not propose to offer an exhaustive survey of all the evidence and argument led at the arbitration hearing, most of which are contained in the background to the dispute above. What follows is a summary of the evidence relevant to my findings only.
Applicant’s Case
11. Applicant testified to his appointment as Acting Chief Education Specialist in the Umlazi District, essentially fulfilling the duties of the post in dispute. He served First Respondent as Senior Education Specialist for 22 years.
12. He was invited to the interview on 11 November 2020 and the interview was scheduled for 18 November 2020 at 13.00 . Notwithstanding, per the union invitation, short-listing was scheduled to take place on 18 November 2020 at 08.00.
13. Only SADTU was present at the interview. A second union was not present. Applicant felt unprotected during the interview and was upset that his union was not present. He established that they were not invited. He lodged a grievance.
14. Applicant’s grievance was heard in his absence. His union provided feedback that he was not invited and it was an oversight by First Respondent.
15. The minutes of the interview process shows that only a SADTU union official was in attendance. However the confidentiality declaration form had been signed by an Mkhize of CTU “ATU”. He was not present at the process and was asked to sign a bundle of documents at First Respondent’s office for another process in which he participated. It is believed that the document formed part of that bundle of documents signed by Mkhize.
16. Applicant testified to the role of the observer in the process. He further confirmed the scores of each of the recommended candidates and submitted that he was a better candidate than the other two. Ntanjane understudies him as he has been supervising Ntanjane for three years. It is unclear how many positions Shangase had applied for. There is no preference list of posts applied for by Second Respondent, that forms part of the application documentation.
17. In terms of HRM Circular 5 of 2017,6 relating to re-appointment after a break in service, at paragraph 5, “under no circumstances must educators who are returning after a break in service be allowed to assume duty without the necessary prior approval from the Head of Department.”
18. From Second Respondent’s CV, he had no experience in school governance compared with his 22 years. Second Respondent had no experience outside of being a Principal and he was out of service since 2012.
19. His scoring for the interview was deliberately low, based on the quality of his answers. Ntanjane's and Shangase's assessment forms have no scores. It therefore suggests that the process was a paper based exercise. This does not correlate with Shangase having scored the highest. Applicant believed he was the best candidate for the post.
20. Short-listing criteria was not provided. Applicant could therefore not make an assessment of whether short-listing was fair.
21. Under cross-examination by First Respondent, Applicant could not provide documentation to confirm that he acted in the role on both occasions (prior to and subsequent to the appointment of Second Respondent.) He confirmed not having received an allowance for the acting position either. He had no expectation in this regard and focussed more on fulfilling the role and making a difference.
22. Applicant acknowledged the structure of Senior Education Specialist reporting into the Deputy Chief Specialist who reports to the Chief Education Specialist, in theory only. However, he submitted that there was never a Deputy Chief Specialist in practice and he had no supervisor.
23. It was put to Applicant that based on his CV, he moved from Educator to Lecturer to SES. He was never a Principal and a Principal post is supervisory in nature. He therefore ought not to have been short-listed for the post. Applicant disputed this.
24. In terms of Education, he conceded that Ntanjane has a Masters Degree, however his current role only deals with one arm of governance, namely safety and security. He has been SES since 2012 and deals with all arms of governance. It was put to Applicant that he had no operational experience of governance in schools. He maintained that he trains school based practitioners on governance. He disputed that he did not meet the requirements for the post and as SES, he supervises approximately 500 schools.
25. Applicant accepted that unions do not score, however, the ensure that the process is fair by observing the process. They have the right to raise objections if unfairness is observed. He disputed that this meant they may manipulate the scoring to benefit their candidate.
26. With reference to HRM5/2017, it was disputed that the circular only deals with educator posts and not substantive office based posts. Applicant responded that something not contained in the document cannot be read into it. He maintained that he trains, monitors and has been a part of school governing bodies.
27. In re-examination Applicant confirmed that he held a B Ed Degree on the level of Honors and Second Respondent held a B Paed Degree.
28. Christopher S Mkhize (“Mkhize”) testified as the NATU union representative whose signature appears on the confidentiality forms for the interview process. He was not an observer for the process. He sat on another interview process and was asked to go to First Respondent’s office to sign documents pertaining to that process. He may have signed this in error thinking it was for the other process.
29. Mkhize confirmed that he was responsible for receiving invitations at the time and he did not receive an invitation to this process.
First Respondent’s Case
30. First Respondent elected not to lead any witnesses and closed their case.
31. Heads of Argument forms part of the record and will not be repeated.
ANALYSIS OF EVIDENCE AND ARGUMENT
32. S186(2)(a) of the LRA protects employees from any unfair act or omission that arises between an employer and employee involving unfair conduct by the employer relating to promotion, demotion etc. There must be a higher post for which the employee applied than the post the employee occupied. Dissatisfaction or a general perception of unfairness is not sufficient. Whether the employer has committed an unfair labour practice is an objective, factual enquiry.
33. First Respondent referred me to Head, Western Cape Education Department and others v Governing Body, Point High School and others to advise that it is not the task of the arbitrator to decide whether the employer had arrived at the correct decision. I note however:
“While it is trite that a court should always be chary of obtruding its views and decisions into an administrative system when it considers that there has been reviewable action, this is clearly a case where the learned judge’s approach was justified.”
34. I was also reminded that the role of the arbitrator is to oversee that the employer did not act unfairly towards the candidate that was not promoted. I was referred to SAPS v SSSBC and SAPS v PSA to substantiate this.
35. I take note that the onus to show the existence of the conduct or decision complained of, falls on the Applicant, however, in Pamplin v Western Cape Education Department, the Court emphasized that the employer is obliged to defend challenges to the substance and procedural fairness, if it wishes to avoid a negative outcome.
36. Accordingly, there is an obligation on First Respondent to provide evidence that it acted fairly and in good faith during the promotion exercise.
37. In Arries v CCMA & Others the Labour Court made the following remarks:
1. The decision making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed;
2. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised.
38. In City of Cape Town v SA Municipal Workers Union obo Sylvester & Others the Labour Court held that when arbitrators make an assessment whether the failure to promote constitutes an unfair labour practice, the test is one of fairness, taking into account inter alia the following:
1. Whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the employer;
2. Whether the employer’s decision was arbitrary, or capricious, or unfair;
3. Whether the employer failed to apply its mind to the promotion of the employee;
4. Whether the employer’s decision not to promote was motivated by bad faith;
5. Whether the employer’s decision not to promote was discriminatory;
6. Whether there was insubstantial reasons for the employer’s decision not to promote;
7. Whether the employer’s decision not to promote was based upon a wrong principle; or
8. Whether the employer’s decision not to promote was taken in a biased manner.
39. I cannot consider the following issues as issues placed in dispute in the pre-arbitration minutes as no evidence was led on them:
39.1 Questions for the interviews were not formulated by the entire committee
39.2 Questions asked were not suited to the advertised post
39.3 The interview committee has no expert/ did not include anyone with an in-depth knowledge of school governance
39.4 The interview committee were not duly appointed by the HOD
40. I now turn to deal with the remaining issues in dispute.
The applicant was acting in the position since 2018 to the date that it was filled by the Second Respondent.
41. Applicant testified to his acting in the role as Chief Education Specialist prior to Second Respondent’s appointment and subsequent to his appointment. He conceded to the organogram theoretically and maintained that he was unsupervised since his appointment. I have no reason to doubt his version and in the absence of any opposing version, I see no reason to doubt his testimony in this regard.
Unions were not invited
42. The invitation to observe the interview process that was admitted into evidence is addressed only to SADTU and there was no evidence presented to suggest that any other union was invited to the interview process. Mkhize testified on behalf of CTU ATU that he was the direct contact person and no such invitation was received. This version was not challenged by First Respondent. On a balance of probability, I therefore find that none of the unions that form CTU ATU were invited to the process.
Respondent 2 has no experience in governance at district level
43. Whilst First Respondent argues that governance experience at district level is not an inherent requirement for the post in terms of the advertisement, they had agreed to place the issue in dispute at the pre-arbitration conference and I would be remiss not to address the issue.
44. It is common cause that Second Respondent was a principal at the time of his resignation from the Department in 2012. His application for the post has been admitted into evidence to confirm his experience and in the absence of evidence to suggest otherwise, I find that Second Respondent did not have experience at district level prior to his appointment.
Applicant is the best candidate for the post
45. The final issue in dispute is whether Applicant was the best candidate for the post. First Respondent argues that this issue falls outside of the jurisdiction of a Commissioner, However, in Buffalo City Public FET College v CCMA and others , it was held that the onus falls on the employee to prove that he is the better candidate for the position in question.
46. To this end, I have considered the evidence of Applicant who came across clear and credible. He withstood vigorous cross-examination and did not waver in his testimony. I have also considered that Respondent failed to defend their case. I therefore essentially have only Applicant’s version before me, with no reason to doubt his evidence.
47. Additionally, there was no explanation provided for how candidates were short-listed and what criteria was used. There was no explanation provided for the invitation for interview being issued prior to short-listing being undertaken. Whilst Applicant was cross-examined on whether he was acting in the role, no version was presented to suggest otherwise. There was no explanation provided for why only SADTU was invited to the interview process and why the process continued in the face of all of the irregularities. The content of HRM Circular 5/ 2017 was disputed, however there was no testimony provided to dispute Applicant’s interpretation of the document.
48. There is also no reasonable justification for the lack of scores for the two candidates who, per First Respondent, scored higher than Applicant in the interview process. There is no explanation provided for the lack of discovery per the ruling of the previous Commissioner. It is my view that a negative inference ought to be drawn from the failure to discover documentation that the Applicant considered to be material to their case.
49. On the basis of the above, there is no evidence placed before me to suggest that there was an acceptable, rational or fair reason for the decision to appoint Second Respondent or to suggest that a fair process was undertaken.
50. In substantiation of my view that the interview process was flawed, in cross-examination of Applicant, First Respondent maintained that Applicant had not met the inherent requirements for the post as he was never a Principal with operational experience in managing a school. He further submitted that Applicant lacked the relevant years of teaching experience, per his misdirection of the requirements for the post. If his version is to be accepted, this further illustrates that the process was significantly flawed.
51. It is glaringly obvious from the submissions made that Applicant was treated unfairly. It is therefore my view that the requirements in both Arries and City of Cape Town have been met in Applicant’s claim.
52. In light of all of the circumstances, I find that First Respondent was procedurally and substantively unfair in not promoting Applicant to the post of Chief Education Specialist: Governance and Management with post reference no OBE36/2020.
53. I have taken cognisance of the fact that Applicant is due to retire in August 2022. In light of the circumstances, it is my view that it is just and equitable to award Applicant compensation in the equivalent of 6 months remuneration. This is calculated as R624 987/ 2 = R312 493.50.
AWARD
54. First Respondent, the Department of Education – KZN has committed an unfair labour practice by not promoting Applicant, B Brijlal to the position of Chief Education Specialist: Governance and Management with post reference no OBE36/2020.
55. First Respondent, the Department of Education – KZN is required to compensate Applicant, B Brijlal in the amount of R312 493.50 no later than 30 days from the date of the award.
Dated at Durban on this 09th day of May 2022.
ELRC Panellist
Vashnee Naidoo