ELRC 833-21/22KZN

ARBITRATION
AWARD

Panellist/s: Seretse Masete
Case No.: ELRC 833-21/22KZN
Date of Award: 19 /08/2022

In the ARBITRATION between:

NAPTOSA obo SP NDLOVU

(Union / Applicant)

and
DEPARTMENT OF EDUCATION KZN

(Respondent)

Union/Applicant’s representative: Samual Sihlezana

Respondent’s representative: Bheki Mkhanyawo

Particulars of proceedings and representation

1. The matter was held virtually on 27 July 2022 and both parties managed to link on zoom. The Applicant, SP Ndlovu, (employee) was represented by Samual Sihlezana of Naptosa and the respondent, KZN Department of Education, (employer), was represented by Bheki Mkhanyawo. The proceedings were in English and recorded on the system.

Issues to be decided

2. I have to decide whether or not the conduct of the employer by appointing the employee who did not meet the minimum requirements in a promotional post constituted an unfair labour practice.
3. I further have to determine an appropriate remedy should I find that the action of the employer constituted an unfair labour practice against the employee.

Background to the dispute

4. The employee was employed in January 2015 as a PL1 Educator at Batlokoa School based in Kwazulu-Natal Province, Harry-Gwala District.
5. He applied for the post of a Departmental Head (DH), ref 1168 which was advertised for the second time where he was shortlisted and interviewed but was not appointed.
6. The appointed candidate, Mr Y Tshingo, the 2nd respondent (Tshingo), was appointed regardless of him not meeting the minimum requirements in terms of the advert.
7. He challenged the substantive fairness of appointing Tshingo because he (Tshingo) did not have and or teach Mathematics and sought the process to be redone.
8. The employee testified as a sole witness and submitted no bundle of documents.
9. The employer disputed the employee’s allegations and cited that all the processes of the recruitment were fair and Tshingo qualified and obtained the highest score during the interviews.
10. The employer further indicated that promotion was the prerogative of the employer and there was no legal basis to promote the employee.
11. The employer had prepared to call four witnesses but since the employee did not challenge the procedural fairness, only one witness was called and one bundle of documents (the bundle) was submitted.

Survey of evidence and arguments
The Employees’ version
The employee, SP Ndlovu, testified under oath as follows;

12. He started teaching in Jan 2015 and his subjects were Geography, Natural Science, Technology & Maths. He qualified to teach Maths, Geography, Natural Science and Technology. He applied for the post no 1168 in HRM 35 with the requirements of Maths and Science plus 2 years’ experience in teaching the advertised subjects as per page 29 of the bundle. Three candidates himself included were interviewed. Tshingo didn’t meet the requirements because one must have had at least 2 years teaching experience in the advertised subjects. Tshingo did not teach Maths and Natural Science but Social Sciences & Maths Literacy. The same post was advertised in 2019 and there was an award, ELRC 24-20-21 KZN, which ruled that Tshingo did not qualify to teach Maths & Science. It was re-advertised because the award ruled that the appointed candidate, Tshimgo, did not meet the minimum requirements. His (Tshingo) qualifications did not include Maths & Science in the first instance, and he was removed from the post but remained using the office. He mentioned influence in the referral because he knew that Tshingo did not qualify. He was currently teaching Natural Sciences and Technology. It was put to him that, he obtained lower marks than the appointed candidate. He confirmed but believed that the employer made Tshingo to qualify only through the scores, not the requirements mentioned on the advert. He was not worried about who got appointed but wanted the appointment to have been made substantively fair.

The employer’s evidence and arguments
1st witness, S Molefe, testified under oath as follows;

13. He was the principal of Batlokoa School and he was a resource person during the interviews. The requirements of Mathematics included Maths Literacy, just like when commerce requirements include business economics, economics etc, see page 15 of the bundle which outlined leaning fields. He further gave an example of languages that one needs to possess at least one language qualification to head other languages. The appointed candidate had Maths literacy and qualified to teach Natural Science, see page 13 of the bundle. The award ruled that the appointed candidate in 2019 did not qualify in terms of the experience. He denied to have used his discretion when allowing the appointment of Tshingo, because he used the Departmental documents. Tshingo has never acted as a DH but was not physically removed from the office. Mr Vilakasi took responsibility in managing all the educators after the demotion of Tshingo. He re-advertised the post the same way he did in 2019 because the award only mentioned the teaching years of experience.

Analysis of the evidence and arguments

14. Common cause issues. Both the employee and the second respondent, Tshingo, applied for the post in dispute and they were short listed and interviewed. Tshingo obtained position one as he scored the highest points and the employee obtained position three. Tshingo was the candidate who was recommended by the interview committee to be appointed. The post was advertised for the second time.
15. The dispute as per the employee’s version was on the requirements of the advertised post no.1168 as per the advert. The employee averred that the appointed candidate, Tshingo, did not meet the requirements of the post as set out in the advert. He further emphasised that the arbitration should focus mainly, if not only, on the requirements of the post because in their view, the 2nd respondent, Tshingo, did not meet the requirements.
16. It is trite that in an unfair labour practice dispute, the onus lies with the employee to prove that they are a suitable candidate for the position. It was held in IMATU obo Visagie v Mogale city Municipality (JR 86/15) [2017] ZALCJHB 432, that the law requires the employee to show the existence of the conduct or decision complained of. It follows that if the employee is challenging the process and that decision or conduct by the employer is not established by the employee, then that is the end of the matter. In SAPS v Nkambule and others (P103/10) [2013] ZALCPE 11(LC), the court held that the employer has no right to dictate either the nature of the dispute to be referred, or the appropriate forum for its resolution. This then means that as a commissioner,
I am not bound by what the parties say what the dispute is, labels attached to the dispute cannot change its underlying nature, see CUSA v TAO YING METALS & Others [2008] 29 ILJ 2461 (LAC). I am referring to these case laws because there was a dispute as to whether we should concentrate on what was written in the referral or what was presented to me and because the employer rightfully indicated that promotion is the prerogative of the employer but that fairness should prevail.
17. The dispute in the current matter was that the 2nd respondent, Mr Y Tshingo (Tshingo), did not meet the requirements of the post in dispute because he did not have and or taught Maths and Science. The argument by the employer was that the school wanted a departmental head who had qualifications in the learning area of Maths and Science. The employer further indicated that Maths literacy, Arithmetic and Maths, all fall within the learning area of Maths (Mathematical subjects). Both parties referred to an award which was issued by one commissioner on a similar and or the same matter between the same parties where the commissioner ruled in favour of the employee. I am not going to dwell much on such an award because it was not submitted as evidence during the arbitration, secondly because my duty is not to review any award issued by any commissioner and thirdly that each case is treated according to its merits.
18. The most effective and reliable source to use when dealing with the dispute of failure to meet the minimum requirements of the advertised post, is the advert itself. The employer submitted a bundle of document (the bundle) which the employee also agreed that we should all refer to. On page 29 of the bundle, there is an advert with the post in dispute. The advert was about a Departmental head ref no.68, at Batlokoa School, Underberg Circuit which fall under Harry Gwala District. Under the column “Subject/Learning Area” the advert was written “Maths and Science”. The argument by the employer that Maths is a learning area which include Maths literacy, Arithmetic and Maths, cannot in the context of that advert be correct. If the School wanted a head of department with Maths literacy and science. It could have specifically indicated so. I am backing my take on the same advert on page 29 of the bundle. If one looks at the post with ref no. 1164 under Zwelinzima SSS within the same District of Harry-Gwala, one will notice that the school wanted a head of department as well. The subjects and or the learning area was specifically indicated as Maths literacy. The employer further gave an example of African Languages that it would not matter if the candidate had, Sotho, Zulu, Xhosa etc, because the post is for the Departmental head who is required to manage. My take is that in the context of the advert we are dealing with here, that notion does not obtain. Let’s look at the post with ref no. 1165 at the same school, Zwelinzima SSS, the candidates were required to have Xhosa under the column “Subjects /Learning area”, see ref no 1141 and 1142 as well. One can go on and on. Check ref no.1148 and 1171 as well, the advert was so specific. My conclusion is, on the balance of probability, the appointed candidate, Mr Y Tshingo, who was the 2nd respondent in this matter did not meet the minimum requirements of the disputed post at the time of the processes of advertising the post, short listing, interviews and appointment. The employee therefore succeeded in showing the existence of the conduct or decision complained of as per the IMATU case in paragraph 18 above. The employee’s relief was that the post be re-advertised and the process be redone. In the light of all the evidence adduced by the parties and my analyses, I am satisfied that the employee succeeded in discharging their onus of proving that an unfair labour practice existed the employer when appointing the 2nd respondent, Mr Y Tshingo.

Award

19. The Employer, Department of Education Kwazulu-Natal, committed an unfair labour practice which affected the employee, Mr SP Ndlovu, when appointing Mr Y Tshingo as a departmental head at Batlokoa School at Underberg Circuit within Harry-Gwala District.

20. The employer is ordered to nullify the whole process of and the appointment of Mr Tshingo as a departmental head and re-advertise the post.

21. The process in paragraph 22 above must be done on or before the 31st of August 2022

Seretse Masete Date 09/08/2022
ELRC Panellist