ELRC787-20/21MP

Panellist: Asnath Sedibane
Case No: ELRC787-20/21MP
Date of Award: 18 August 2022

In the ARBITRATION between:

ISAAC PERCY MABSA
(Union / Applicant)
and

EDUCATION DEPARTMENT OF MPUMALANGA
(1st Respondent)

SAMKELO NORMAN NDABUKELWAYO
(2nd Respondent)

Union/Applicant’s representative: Mr PJ De Beer (Legal Representative)
Union/Applicant’s address:
1st Respondent’s representative: Mr S Khoza (1st Respondent’s Representative)
1st Respondent’s address:

2nd Respondent’s representative: Mr S Kunene (NAPTOSA)
2nd Respondent’s address: 


DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearing between Mr Isaac Percy Mabasa and the Education Department of Mpumalanga (first respondent) and Samkelo Norman Ndabukelwayo (second respondent) was held under the auspices of the Education Labour Relation Council (“ELRC”), virtually via Zoom Meetings on 25/05/2022 and through a physical sitting on 29/07/2022. The matter was set down for arbitration in terms of section 186(2) (a) of the Labour Relations Act 66 of 1996 (“LRA’’).
2. The leading of oral evidence was finalized on the 29th of July 2022 and it was agreed between the parties and the Panellist that the parties would submit their closing arguments by no later than the 5th of August 2022. The proceedings were conducted in English and were both manually and digitally recorded. The applicant submitted oral closing arguments on the 29th of July 2022 and the first respondent submitted their closing arguments in writing on the 5th of August 2022. The second respondent did not submit any closing arguments. The closing arguments of the applicant and first respondent were taken into consideration when making this award.
3. The applicant was present and was represented by an Attorney, Mr PJ De Beer of De Beer & Slabbert Inc. The first respondent was represented by Mr S Khoza, an official of the Education Department of Mpumalanga. The second respondent was present and was represented by Mr S Kunene, an official of NAPTOSA.
4. The parties submitted bundles of documents. The applicant’s bundle was marked as bundle “A” and the respondent’s bundle was marked as bundle “C”.
5. The parties signed minutes of the pre-arbitration hearing, which were marked as bundle “B”.
PRELIMINARY ISSUES
5. No preliminary issues were raised by either of the parties.
ISSUES TO BE DECIDED
6. The dispute was referred to the ELRC by the applicant as an Unfair Labour Practice in terms of section 186(2) (a) of the LRA.
7. I was required to determine whether the first respondent committed unfair labour practice relating to promotion against the applicant when conducting the recruitment process that resulted in the appointment of the second respondent as HOD at Tsembekani Primary School.
8. The relief that the applicant seeks is that the appointment of the second respondent be set aside and that the applicant be awarded maximum compensation for the unfair labour practice.
9. After the narrowing of issues, it was decided that the following issues were common cause between the parties:
9.1 The applicant is a post level 1 educator, earning a basic monthly salary of R28 916-25.
9.2 The applicant applied and was shortlisted for the post of Head of Department (HOD) at Tsembekani Primary School that was advertised on 20 February 2020.
9.3 The applicant was interviewed for the post and was amongst the top three candidates.
9.4. The second respondent, Mr Samkelo Norman Ndabukelwayo was the successful candidate.
9.5 The applicant lodged an internal grievance based on the outcome of the interview and subsequently declared a dispute for unfair labour practice with the ELRC.
10. The parties agreed that the following facts were issues in dispute:
10.1 Whether the first respondent followed the correct process in conducting the shortlisting and interview for the post in question and in the appointment of the second respondent.
10.2 Whether the appointment of the second respondent was substantively fair.

BACKGROUND TO THE DISPUTE
11. The applicant, Mr Isaac Percy Mabaso is employed by the first respondent, Education Department of Mpumalanga as a level 1 educator. He has been so employed since 31 July 1999.
12. The first respondent advertised the post of HOD at Tsembekani Primary School on the 20th of February 2020.
13. The advertisement was followed by shortlisting and interview processes. The second respondent was appointed to the post.
14. To prove their respective cases, the applicant and first respondent led and oral evidence and also referred to documents. The second respondent did not lead any evidence.
15. Upon the conclusion of their submissions, the parties were requested to address me in respect of their closing arguments. By agreement between the parties, the applicant addressed me orally on closing arguments and the first respondent submitted their closing arguments in writing on the 5th of August 2022. The second respondent did not submit closing arguments. I have considered the oral and documentary evidence from the parties as well as the closing arguments in my award below.

SURVEY OF SUBMISSIONS AND ARGUMENTS
THE APPLICANT`S CASE:
The applicant, Mr. Isaac Percy Mabasa, testified under oath as follows:
16. He became aware of the way the shortlisting panel had been constituted only after he had declared the dispute. Page 22 of bundle “C” was the register of the shortlisting Committee.
17. He knows the shortlisting panel members. Malaza D was the school principal at Tsembekani Primary School at the time, Mndebele TL was a member of the School Governing Body (SGB), Nkosi TA is a teacher at the school and Maseko—Mkhatshwa LP is a Clerk/Secretary.
18. In terms of the Personnel Administrative Measures (PAM), clause B. 5.4.2.1 one departmental representative (who may be the school principal), must act as an observer, advisor or resource person. He does not know who the advisor of this panel was.
19. In terms of clause 5.4.2.3 of PAM, members of the SGB excluding educator members who are applicants to the advertised post are to form part of the Interview Committee. In terms of the register, there were three members of the SGB on the Committee, one teacher, one member from the parent component and the secretary.
20. There are eight members of the SGB at the school, two from the educator component, the principal and five members from the parent component.
21. Page 124 of bundle “C” was the testimonial letter signed by D Malaza, recommending the second respondent. This is the same person who appears on the register of the Committee.
22. Mrs Nhlapo who is a member of the School Management Team (SMT) is not part of the SGB and was not supposed to sit on the shortlisting Committee.
23. In the interview, the former principal, Ms Malaza, Ms Nkosi and Ms Makhanya who he thought was representing the Department were the ones scoring. The representative from the SGB was not scoring but observing the process.
24. He normally only used his certificates and not testimonials in his job applications.
25. He was aggrieved with what he had seen from the interviews. He consulted his Trade Union, SADTU and they said that there was nothing they could do since they had signed that everything had gone well with the interviews. He then consulted a friend who referred him to PAM. That is when he lodged a grievance.
26. The relief that he is seeking is that the Department should nullify the process as it had been breached. He would also like to be compensated if the case is decided in his favour because there are financial implications of the unfair labour practice for him.
27. Under cross-examination, Mr Mabasa confirmed that page 85 of bundle “C” was a testimonial signed by Ms Malaza in his favour. He further confirmed that his testimonial and that of the second respondent were signed by the same person.
28. He confirmed that the Principal was supposed to sit in the interview. He had inquired about the reasons why Ms Nhlapo had sat in the interview and he received the reasons from the investigator of his grievance as per page 8 of bundle “A”.
29. He had been told that the reason why the Chairperson of the SGB had not sat in the interview was because he had an interest in another post.

The applicant’s second witness, Ms Thabile Linah Mndebele, testified under oath as follows:
30. She was an SGB member at Tsembekani Primary school in 2020. There were four parent members of the SGB at the time.
31. She was the only parent member of the SGB that attended the shortlisting for the post of HOD that was advertised in 2020 and for which the applicant had competed.
32. She had been called by the former Principal, Ms Malaza and requested to attend the shortlisting. At the shortlisting, the Committee comprised of her, Ms T Nkosi, Ms ZG Nhlapo, Ms Makhanya and Ms Malaza.
33. There were five candidates that were shortlisted.
34. The principal, Ms Malaza had been responsible to arrange the shortlisting and interviews.
35. There was no compliance with clause B. 5.4.5 as she had been called a day before the interview and requested to be there the next day.
36. Ms Makhanya who was from another school was introduced as an observer in the process.
37. The principal had made it clear during the Committee’s discussion that they must take the candidate that she wanted as she wanted to balance the gender of the HODs. Ms Malaza’s preferred candidate was the second respondent, Mr Ndabukelwayo.
38. The Committee had proposed to recommend a candidate that was from outside the school due to the politics in the school but Ms Malaza had insisted that she preferred the second respondent.
39. Clause B.5.4.12 that required that at the conclusion of the interviews, the Interview Committee must rank the candidates in order of preference, together with a brief motivation and submitted to the SGB for their recommendation to the relevant employment department was not complied with.
40. There had been an issue with the second respondent’s testimonials that they were from the church. Not all the candidates’ testimonials were taken into consideration.
41. Under cross-examination, Ms Mndebele confirmed that the applicant’s testimonials were also considered.
42. The interviews had been conducted five days after the shortlisting.
43. Ms Makhanya was the Chairperson of the Interview Committee.
44. She had not been given an opportunity to score. She had been given a chance to ask just one question.
45. She confirmed that the entire SGB does not participate in the interview process.
46. The Chairperson of the SGB had been committed at the time.

THE FIRST RESPONDENT`S CASE:
The first respondent’s only witness, Mr Mandla Nicholl Thabethe testified under oath as follows:
47. He is the Assistant Director: Behaviour Management in the Gert Sibande District Office.
48. Pages 15 to 18 of bundle “C” is the letter he had received from his supervisor, directing him to investigate the concern about the formulation of the shortlisting panel at Tsembekani Primary School.
49. He had investigated the grievance by the applicant, Mr Mabasa.
50. He had contacted the principal of the school to find out what happened during the shortlisting. The principal had indicated that she had been informed on 06/11/2020 that the interviews would be held on 08/11/2020. She could not secure the attendance of the SGB Chairperson as he had an interest in the post and Ms TA Nkosi had called the principal a day before the shortlisting and reported that her child was sick. The HOD for the foundation phase had been included in the Committee as she did not have an interest in the post.
51. The Trade Unions SADTU and NAPTOSA had observed the process.
52. Five candidates had been shortlisted.
53. The role of the Chairperson was to ensure that the process was done correctly. If the principal is not an applicant he/she is allowed to be part of the panel.
54. Pam does not stipulate how many members of the parent component of the SGB are supposed to be on the shortlisting Committee.
55. The outcome of the grievance indicated that there was nothing untoward about the composition of the shortlisting Committee.
56. There were instances where the SGB did not have capacity and they would request assistance.
57. Under cross-examination, Mr Thabethe indicated that he could not remember who had performed the role of the observer mentioned in clause B. 5.4.2.1 of PAM. The clause does not say that this person cannot be the Chairperson. He confirmed that the person in this role could not be scoring.
58. The Principal was not the departmental representative.
59. The Chairperson of the SGB could not have formed part of the shortlisting Committee as he had been conflicted.
60. He disputed that his investigation had not been done correctly.
61. He noted clause B.5.4.5 of PAM. He did not agree that this was not complied with. In practice the duties of convening interviews are given to circuit managers. If a practice is consistently applied it becomes law.
62. Clause B.5.4.12 was complied with. The recommendation was done by the SGB after the interviews were concluded. The SGB submitted their own recommendation. It is on this basis that an appointment was made.
63. Members of the SGB signed the minutes of the interview and the recommendations.
64. Clause B. 5.5.2 on page 33 of bundle “A” was complied with.
65. He disputed that Ms Makhanya had not been entitled to score. He said that maybe this was because of what the Committee had agreed on. Nothing stopped the Committee from making such arrangements.
66. PAM does not say that the person acting as the resource person cannot score.

ANALYSIS OF EVIDENCE AND ARGUMENTS
67. I have considered all relevant evidence and arguments raised by the parties and in doing so, I have only referred to evidence and arguments that I regard necessary to substantiate my findings and dispose of the dispute.
68. The applicant has declared a dispute relating to promotion, in terms of section 186(2) (a) of the Labour Relations Act 66 of 1995, which provides as follows:

186 Meaning of dismissal and unfair labour practice

(2) ‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an
employee involving-
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;

69. The first respondent has led evidence and also submitted that they have not committed an unfair labour practice against the applicant, when shortlisting, interviewing and appointing the second respondent in the promotional post of HOD at Tsembekani Primary School.
70. In any dispute for unfair labour practice, the onus rests with the applicant to prove that there was an unfair conduct or omission by the respondent(s) and that the applicant has suffered prejudice as a result of such act or omission.
71. It was common cause that both the applicant and the second respondent had met the requirements of the post of HOD and Tsembekani Primary School. They were both shortlisted and interviewed for the position. The second respondent was recommended and subsequently appointed in the position.
72. The applicant led evidence that he was aggrieved with the composition of the shortlisting and interview committees and that the procedure that was followed in convening these committees had been flawed. The applicant in challenging the procedure that was followed in the recruitment process, referred to Personnel Administrative Measures (PAM).
73. The applicant referred to clause B.5.4.2.1 of PAM which provides as follows: “The Interview Committee must comprise of one departmental representative (who may be the school principal), except in the case where he/she is an applicant.” It has been established as common cause in this matter that Ms Malaza who was the school principal at the time was part of the interview panel. It is also common cause that Ms TM Makhanya was the Chairperson of the interview panel and the departmental representative. There was therefore compliance with clause B.5.4.2.1 of PAM in the composition of the interview panel.
74. The applicant also referred to clause B.5.4.5 of PAM which provides as follows: “The SGB is responsible for the convening of the Interview Committee and they must ensure that all the relevant persons/trade unions are informed at least 5 working days prior to the date, time and venue for the shortlisting, interviews and the drawing up of the preferred list.” The evidence of Ms Mndebele was that she had been called a day before the shortlisting and requested to be part of the Committee. The first respondent led evidence that two members of the parent component of the SGB who had been approached to form part of the shortlisting Committee had declined the request hence Ms Mndebele being approached to be part of the Committee. Mr Thabethe also testified that the Principal had also been given short notice of the shortlisting and interviews and as a result had limited time to convene these Committees.
75. It is evident that the first respondent has not complied with the provisions of PAM with regards to the time frame for convening the shortlisting and interview Committees. From the evidence led, it is also apparent that the interview panel had been convened by the school principal and not by the SGB as per the PAM provision. According to Mr Thabethe’s testimony, in practice, it is the circuit managers that convenes these Committees.
76. The applicant further referred to clause B. 5.4.12 of PAM which provides as follows: “At the conclusion of the interviews the Interview Committee must rank the candidates in order of preference, together with a brief motivation, and submit this to the SGB for their recommendation to the relevant employing department.” The applicant submitted that there was no motivation by the SGB in this matter. The first respondent referred to the score sheet that had been compiled by the interview panel and submitted that this was proof of compliance with clause B.5.4.12 of PAM. There was however no proof of any motivation by the Committee to the SGB and the SGB’s recommendation as per the provision. Based on this, there was evidently no compliance with this provision.
77. The applicant has succeeded in proving, on a balance of probabilities that the first respondent has breached some of the provisions of PAM in the recruitment process that preceded the appointment of the second respondent in this matter.
78. The applicant has alleged there was substantive unfairness in the shortlisting and interview process of the post in question and that this has prejudiced him. There was however no evidence that was led by the applicant in this regard.
79. The courts in evaluating cases involving unfair labour practice relating to promotion have established that for such a dispute to succeed, the complainant must prove that he/she had met the inherent requirements of the promotional post and that the decision to appoint someone else in the position in preference to the complainant was unfair. The leading case on this principle is Ndlovu v Commission for Conciliation, Mediation and Arbitration and others (2000) 21ILJ 1653(LC).
80. It is not in dispute in this matter the applicant met the inherent requirements of the post and that he had been given a fair opportunity to compete for the post. He was duly shortlisted and also interviewed for the position. He was ranked third in the list of preferred candidates for the post whilst the second respondent had been ranked first. This means that the applicant has failed to meet the first part of the test for unfair labour practice relating to promotion as enunciated in the Ndlovu case supra.
81. Coming to the second part of the test for unfair labour practice relating to promotion. As laid down by the courts and particularly in Sun International Management (Pty) Ltd v CCMA and others (JR 939/14) [2016] ZALCJHB 433, it is not enough in promotion cases to merely show that there was a breach of protocol or procedure in the recruitment process. It is also necessary for a complainant to show that the breach of the procedure had unfairly prejudiced him. As already stated above, the applicant was shortlisted and interviewed for the position in question. This despite the first respondent not complying with the recruitment procedure on composition of the shortlisting and interview Committees, as already proven by the applicant. The applicant has however not led any evidence to show that he had been unfairly prejudiced by the breach of the procedure in this matter.

82. The second respondent was found to be the best candidate for the position of HOD and Tsembekani Primary School and was as a result appointed to the position. Nowhere in the evidence or arguments by the applicant is it alleged that the second respondent was not the best candidate for the position. The courts have emphasised that the discretion to appoint or promote lie with employers and that Commissioners should tread carefully when interfering with such discretion. In the Ndlovu case supra, the Court held that if the decision by the employer to appoint one in preference to the other is rational then there cannot be any finding of unfairness. This was also the decision of the court in National Commissioner of the SAPS v SSSBC and others [2005] 26 ILJ 903(LC). The court in this case went further to say that the complainant must prove that there was a causal connection between the unfairness complained of and the prejudice suffered.

83. It is clear from the fore-going that the applicant other than proving that the first respondent breached some of the procedural aspects in the recruitment process when shortlisting and interviewing for the post of HOD at Tsembekani Primary School, there is no evidence to show that the applicant suffered any prejudice as a result of the procedural breach. The applicant has neither led evidence nor made any submissions that if the breach had not occurred, he would have been found to be the best suitable candidate for the position. As a result of the failure of the applicant to prove the substantive unfairness in this matter, I do not agree that the appointment of the second respondent must be set aside and the process started afresh due to the procedural breach.

84. The applicant has also submitted that he has suffered financial prejudice as a result of the breach of procedures by the first respondent. This has also not been proven by the applicant. In the absence of evidence of any financial prejudice, the case of the applicant stands to fail.

85. After considering all the evidence and submissions in this matter and also after considering the applicable prescripts and relevant case law, I find that the applicant has not discharged the onus required to prove the unfair labour practice relating to promotion in this matter.

Award
1. The applicant has failed to prove on a balance of probabilities that the first applicant has committed an unfair labour practice during the recruitment process that resulted in the appointment of the second respondent in the promotional post.
2. As a result of the aforesaid, the applicant’s application is dismissed.


Asnath Sedibane
ELRC Dispute Resolution Panellist