ELRC979-21/22LP

Commissioner: Grace Mafa-Chali
Case No.: ELRC979-21/22LP
Date of Award: 06 November 2022

In the ARBITRATION between:

PSA OBO ABRAM MAITJI TEBELE APPLICANT

AND

DEPARTMENT OF EDUCATION-LIMPOPO PROVINCE 1ST RESPONDENT

AND


ANDRIES MAHLANGU 2ND RESPONDENT

THE DETAILS OF THE HEARING AND REPRESENTATION
1. The arbitration hearing was held on 11 August 2022, 14 September 2022, 15 September 2022 and finalized on 19 October 2022.
2. The Applicant was represented by PSA official, Ms Kate Mamabolo. The First Respondent was represented by the Deputy Director, Labour Relations, Mr Eric Nyathela. The Second Respondent represented himself.
3. At the end of the last arbitration sitting, all parties requested to submit written closing arguments and were directed to submit them by the latest 26 October 2022. All parties obliged. I have considered them hereunder in my findings.

ISSUES TO BE DECIDED
4. I must determine whether or not the First Respondent committed an unfair labour practice against the Applicant in terms of Section 186(2) (a) of the Labour Relations Act 66 of 1995, as amended (LRA) relating to promotion.
5. If so, to determine the appropriate relief.

BACKGROUND TO THE ISSUES
6. The Applicant was appointed as an Educator since 01 January 1989 and earned a basic monthly salary of R36 916.05.
7. The Second Respondent was appointed by the First Respondent as Departmental Head (HOD)-English and Geography, Grade 10 to 12, with effect from 01 March 2022 and earned a basic salary of R35 397.00 per month. Both the Applicant and the Second Respondent are employed at Makgamathu Secondary School, Driekop Circuit.
8. The position of HOD, in which the Second Respondent was appointed, was advertised in an open vacancy list No 1, Volume 3/2021 dated 22 September 2021.
9. The Applicant submitted that he should have been appointed to the advertised position of HOD as he was recommended by the SGB after the interviews held on 12 November 2021 but instead, a second round of interviews was held on 13 December 2021, after which the Second Respondent was appointed.
10. The First Respondent prayed for the dismissal of the Applicant’s claim as it was submitted that the Second Respondent’s appointment process was substantively and procedurally fair.
11. The Parties handed up bundles of documents as documentary evidence. The Applicant’s bundle was marked Bundle A and First Respondent’s bundle of documents was marked Bundle R. The Second Respondent did not submit any bundle of documents.

SURVEY OF PARTIES’ EVIDENCE

Applicant’s Evidence
Abram Maitji Tebele testified under oath as follows:

12. He was appointed as a CS1 Educator on 01 January 1989 at Makgamathu Secondary School. He taught departmental languages since 2009. He taught English, LO, Geography and History.
13. During the shortlisting of the Departmental Head vacancy for English and Geography at the school, he was one of the candidates considered and shortlisted. His years of experience in teaching gave him the chance to be considered as one of the best candidates.
14. He has good leadership qualities, is doing a lot towards learners’ discipline and contributing to the development of the school with co-operation of teaching staff. He has been the school treasurer for more than 10 years and ensures that the school funds are well run.
15. He was a threat to many, including the former Principal, who targeted him and eventually charged him with more than 15 charges but he was exonerated on all of them.
16. He was never reprimanded by the Principal regarding his work not being up to standard. Even the previous Circuit Manager praised him for the good work he did for the learners.
17. His relationship with the current Circuit Manager is not good as reflected in the letter on Page 32 of Bundle A. The former Principal left at the end of June 2018 and he told the Principal that as long as he was still at the school, the school will not collapse.
18. After he was exonerated of the charges, he wrote the letter to the district about the school. He sent a report to the Circuit Manager. The Circuit Manager took the report and threw it in the dustbin and told him that he will hold him hostage until he left the system. The Circuit Manager also told him that he would never get a promotion.
19. The Circuit Manger further told him that he bought CCMA officials and lawyers that’s why he was exonerated from the charges. Even the former Principal, Mr Chiloane, told him that the Circuit Manager did not like him. He continued with his good work even assisting the new Principal, Mr Manaka.
20. He applied for the HOD position when it was advertised. He was shortlisted and invited to interviews but he was not appointed.
21. No school or community can decide on appointments as there is no such provision in the SASA or Collective Agreement 62 of 2016. The Circuit Manager wrote a letter to the school to address the community on the promotional post and there was no such provision supporting his action. When he was interviewed on 12 November 2021, the Second Respondent was not one of the candidates as it appears on Page 17 of Bundle R.
22. It was not correct that he did not qualify in the second round of shortlisting and interviews as he met the requirements. He has Geography and English and long service as well as experience in the teaching field. He led the languages department at school and attended various departmental workshops.
23. As a result of the Second Respondent’s appointment, he seeks the relief of a protected promotion. He can still work together with the Second Respondent at Makgamathu Secondary School. He did not have the intention to move from the school that he taught at for 30 years and he wanted to retire from the same school.

Lorraine Phaphule Mashabela testified under oath as follows:
24. She was the SGB Chairperson at the time shortlisting was done on 04 November 2021, for the HOD position at Moroke Circuit office. There were panelists who were nominated to do shortlisting. The SGB members were just the observers.
25. At the end of the short-listing process, two parents indicated that they wished that at least two of the teachers at the school should be shortlisted, especially Mr Kgwete. The position required English and Geography but it was found that Mr Kgwete only possesses Geography and not English.
26. The shortlisting panel indicated that Mr Kgwete did not meet the minimum requirements to be shortlisted and the parents understood.
27. Reference was made to Pages 11 and 16 of Bundle R. She confirmed that it was the names of panelists and the Principal was part of the panel as the departmental representative.
28. The shortlisted candidates appear on Pages 17 and 52 of Bundle R, dated 04 November 2021. The interviews were held on 12 November 2021 and they went well without threats and complaints from the start to the end.
29. The two parents came and indicated that they wrote a letter to the circuit complaining about the school moneys and the interview process. During the interviews, she was part of the interview process as Chairperson of the SGB of the school.
30. After the interviews, the panel gave them the outcomes of the interview and candidate’ scores, as they appear on Page 21 of Bundles R, as well as the motivation on Page 22 of Bundle R. The motivation shows that the Applicant was recommended for the HOD position.
31. Later on, on 07 December 2021, the Circuit Manager delivered a letter for the parents meeting, as it appears on Page 22 of Bundle A. The letter was delivered at the school inviting parents to the meeting on Saturday, 11 December 2021.
32. On Saturday, 11 December 2021, the parents came to the meeting. The Circuit Manager told the parents that the SGB they elected was fighting for the post and they would see what to do. There was no agenda for the meeting. The Circuit Manager indicated to the parents that he would soon call for the SGB meeting which indeed happened the following day on Sunday, 12 December 2021.
33. On 12 December 2021, the Circuit Manager told them that there was going to be re-shortlisting and new interviews and that the SGB should not worry as he would look for the panelists. The SGB heard for the first time from the Circuit Manager that the SGB was fighting for the post.
34. There was no good relationship between the SGB and the Circuit Manager since he should have sat with them to show them the grievance and where the process did not go right before calling the parents.
35. The SGB never had any complaints at the school against the Applicant as a Geography and English teacher. After they heard that the recommendations for appointing the Applicant were not approved, they were confused as they were not aware where was the fault which needed to be rectified.
The Applicant closed his case.

The First Respondent’s Evidence
Ramaube Lazarus Phasha testified under oath as follows:
36. He is the Circuit Manager. There were two interviews that were held for the HOD position at Makgamathu Secondary School.
37. On 12 November 2021, at around 08h00 in the morning, two members of the SGB, Mr Peter Mashabela and Mr Maake came to his office with a letter indicating that they wanted to stop the interview process that was to be conducted on that day. He read the letter which indicated that the SGB was divided over the position as they could not agree on the candidate whom they preferred. The two SGB members came to his office during the preparations of the interviews. The told him that there were other SGB members who were pushing for the Applicant to be appointed. They said they preferred Mr Kgwete.
38. He then told them that the process was already contaminated as the SGB was conflicted and they were advised to go back to the school to discuss their issues as it was not allowed for the SGB to bring people of their preference to the interviews, since the appointment must be done by the HOD of the First Respondent.
39. The other complaint was that the school safe was broken and he was told that the bank card was taken. When the interview panel members came, he called them to his office and told them of the situation and the complaints. He told them that there were other SGB members who disagreed on the Applicant’s shortlisting and that was not the way the process must go, but he would allow the interviews to proceed and later on keep the documents of the interview outcomes until the SGB comes back to him to report that they have agreed on their issues.
40. After the interviews, he kept the documents in his office. There were three SGB meetings held but they could not agree, until he decided to intervene. He discussed with the Principal that since the process was already flawed with the SGB members showing interests in the candidates, they agreed to redo the process.
41. He called the parents meeting on 11 December 2021, as the school was at standstill with two SGB members having gone to the bank to stop the school account and payments of service providers could not be done.
42. The parents were shown during the meeting that they had differences and could not work together; and the school account was frozen. He was told by parents that the SGB members lobbied parents to elect them into the SGB positions.
43. The following day on Sunday, he called the SGB members to the meeting and gave them a report of what happened at the parents meeting, and they agreed as way forward to redo the process. He also advised them that he would get the panel members.
44. The shortlisting was then done, and interviews were conducted. On the day of the second interviews, the panel told him that the Applicant was not shortlisted as he did not meet the requirements for phase two (2).
45. The SGB agreed with the process and signed all the documents willingly with no pressure and arguments. The other two SGB members who lodged a complaint were not there during the second interviews. The Chairperson of the SGB signed on Page 37 of Bundle R.
46. The Applicant came to his office on the date of the interviews seeking reasons why he was not shortlisted. He went to the panel and got the records and gave the Applicant the reasons he was not shortlisted. It was indicated that the Applicant was not shortlisted because he did not have the additional relevant qualifications, for which he scored 2, with a total score of 15. Those shortlisted candidates were scored a total of 20 to 25.

Trust Magosu Manaka testified under oath as follows:
47. He is the Principal at Makgamathu Secondary School. He made reference to Page 24 of Bundle R, which is the SGB recommendations for the appointment dated 12 November 2021. The problems started on the date of the interviews and all SGB members including him were there.
48. Two members of the SGB started to make noise after the five candidates were shortlisted. They said the panel must shortlist Mr M D Kgwete because the Applicant was shortlisted. They said Mr Kgwete was teaching Grade 12 but the Applicant was teaching lower grades. The panel took Mr Kgwete’s application and explained to the SGB members that Mr Kgwete did not have English and Geography, which was required by the advert and he had only Afrikaans and moreover his application had missing information. The two SGB members seemed to understand. The panel told them of the date of the next interviews and all dispersed home.
49. Two days before the interviews, he phoned the same two SGB members as one of them was the Treasurer and both of them were finance committee members. He wanted to arrange for money to buy food for the interview panel and to also pay transport claims for the panel members. They both promised to be there at the interviews.
50. A day before the interviews, he called them again and only one of them answered his cellphone and promised to be at the interviews. They were however both not present on the date of the interviews and they did not answer their cellphones. Only one signatory of the school bank account was present. They broke the school safe, took the card and went to the shops to buy food. The expenditure sms went to those two SGB members.
51. They went to conduct the interviews at Driekop Circuit Office. During the interviews, he went out and saw the SGB members going to Mr Phasha’s office. The interviews continued.
52. After the interviews, Mr Phasha called him and the SGB members to explain that the two SGB members were there in his office and he showed them the letter that they delivered to him. He read the letter to them and it stated that he, as the Principal used the school money without their permission.
53. Mr Phasha asked them to go back to school to talk in order to solve the issues. The other complaint was that the interviews continued without Mr Kgwete as one of the candidates. He received a call in the evening from one of the two SGB members accusing him of using the school money without their permission and furthermore accused him of transferring the school money even in the evening. He explained to him that the money was transferred in the morning before 10h00 but the sms could have been delayed. The SGB member told him that he will know them.
54. He called the SGB meeting the following day and explained to them what happened. After a few days, they wanted to pay the service providers but the school account was blocked. They arranged another SGB meeting but the two who complained did not come. The SGB wrote them letters and hand delivered them at their homes but they refused to take the letters.
55. They arranged a third meeting and called the complainants again and still they did not come. He then asked the Circuit to authorize on the school account in order to be able to pay the salaries of the workers. Mr Phasha wrote them a letter to take to the bank and they were able to unblock the school bank account.
56. The two SGB members even wrote to Thobela FM to complain that he was abusing the school money as they saw that the money was withdrawn from the school account. He was called by Thobela FM about the complaint and he explained to them they must talk to the departmental representative.
57. The Department came to the school to do the investigations. Mr Phasha asked him to arrange a meeting on Saturday with SGB members and parents and those SGB members who complained also came. Mr Phasha told the parents about the problems and differences of the SGB regarding Post 14. The parents also had groupings besides the SGB‘s agreements on shortlisting Mr Kgwete and the Applicant.
58. After the parents meeting, Mr Phasha asked to meet with him and the SGB on the following day on Sunday. At the meeting, Mr Phasha explained to them (SGB) that he was suggesting that the second shortlisting be done as the Circuit would not continue with appointment of the post as there were problems.
59. The shortlisting day was scheduled and new shortlisting was done and the two SGB members still did not attend. The panel was introduced to them, they did the shortlisting and showed them the names of the candidates shortlisted. The interview date was set.
60. They went to the interviews and the Second Respondent was successful in the post as HOD -English and Geography, which were his major subjects. The SGB would have been pleased with anyone appointed but the two SGB members who complained could not have been happy if Mr Kgwete was appointed.
61. He was present in the shortlisting processes as departmental representative. He also thought that the Applicant would be shortlisted in the second process as he acted in the position and he also met the requirements. The Applicant was not authorized by the department to act. It was just an internal school arrangement he made with him.

John Manadila Make testified under oath as follows:
62. He visited the office of the Circuit Manager on 12 November 2021, the date of the first interviews. The purpose of the visit was to complain about the shortlisting and that Mr Kgwete was not shortlisted.
63. The SGB agreed that the Applicant and Mr Kgwete must be shortlisted since Inspector Pholwane trained them that if a person has 12 months of service, he/she can apply for the post and will be automatically shortlisted.
64. The Applicant and Mr Kgwete qualified, as Tebele has 28 years at Makgamathu School and Mr Kgwete has 25 years at the same school. Furthermore, Mr Kgwete was teaching learners from Grades 9 to 12 and the learners were passing very well. The Applicant was teaching Grades 8 to 9.
65. The subjects required for the advert are English and Geography for Grade 10 to 12, but he believed that Mr Kgwete was better qualified than the Applicant as Mr Kgwete was teaching the higher grades.
66. When they visited the circuit office, they were advised to go back to speak to the Principal. He went back to Principal Manaka’s office with Mr Peter Mashabela as he was the Deputy Chairperson of the SGB and Mr Mashabela was the Treasurer. When they arrived at the Principal’s office, Mr Manaka told them that he did not want to hear them and he left his office. Mr Manaka did not want to speak to them. They then left.
67. They were not involved in the second process of filling up the position that led to the appointment of Mr Mahlangu, the Second Respondent.
68. The Principal called the SGB meeting not the meeting to do the shortlisting and he never gave them an invitation letter for the meeting. They did not attend the SGB meetings and there was no longer a working relationship at school regarding the issue of the Applicant and Mr Kgwete. They expected that both the Applicant and Mr Kgwete would be shortlisted and the Principal was the one overseeing the whole process.
69. The Principal was the one who stood up during the shortlisting and told them that Mr Kgwete will not be included in the interviews. When they spoke to the Principal, he said they could do whatever they wanted but will not change anything as the Chairperson of SGB has signed.
70. The SGB was divided into two (2) groups as one group was for the Applicant and the other group was for Mr Kgwete. They did not work at the interest of the educators, but at the interest of the learners so that they can get educated.
The First Respondent closed its case.

The Second Respondent’s Evidence

71. The second Respondent, Mr Andries Mahlangu, elected not to testify and also not to call any witnesses. He closed his case.

ANALYSIS OF PARTIES’ EVIDENCE AND ARGUMENTS

72. Section 186(2)(a) of the Labour Relations Act, 66 of 1995 (LRA) defines an unfair labour practice as meaning,
“Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving:
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;…”.
73. The LRA requires employers to treat employees fairly when they apply for promotions. An employee who alleges that s/he is the victim of an unfair labour practice bears the onus of proving all the elements of her claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair.
74. Fairness requires that the position and interests of both the employee and employer are taken into account in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgment to established facts and circumstances. In doing so, it must have proper regard to the objectives sought to be achieved by the LRA.
75. The Applicant led evidence and testified that he has worked at Makgamathu Secondary School for 30 years, and was co-opted to act as the HOD of languages by the Principal for 14 years as he performed very well and was never reprimanded for not doing his job. He further submitted that regardless of that, he and the Circuit Manager did not have a harmonious relationship and the Circuit Manager even told the employee that he would hold him hostage. The Applicant alleged that the Circuit Manager did not have powers to instruct that his appointment process be nullified and that was because his relationship with the Circuit Manager was not good. The Applicant also alleged that the Circuit Manager in the past threw his reports in the dustbin in the Applicant’s presence.
76. The Applicant argued that since he was shortlisted, interviewed and recommended for appointment by the SGB from the first interview process, he must be afforded a protected promotion since he believed that the second round of shortlisting and interview process was flawed and unfair in that he was not given an opportunity to compete for the post.
77. The Applicant based his arguments of unfairness on the non-shortlisting on the fact that he was co-opted to act as the HOD for languages since 2008, sacrificing his time and energy, he was never reprimanded for poor work performance, he met the minimum qualification and requirements of English and Geography.
78. The Applicant called a witness, Ms Mashabela who was the SGB Chairperson at the time the Applicant was recommended for appointment. Ms Mashabela’s evidence confirmed that indeed there were two SGB members who were not happy with the shortlisting and indicated their wish for Mr Kgwete and the Applicant to be included in the shortlisting. Her further testimony was that the Circuit Manager engaged the SGB after the interviews to report to them about the complaint letter lodged by the two SGB members who did not attend the interview as Mr Kgwete was not shortlisted. She also testified that the Circuit Manager called the parents to the meeting and later the following day called the SGB meeting and informed them that he has nullified the recommendations process for the appointment of the Applicant and redoing the shortlisting and interview process, which was done in exclusion of the Applicant and the process led to the appointment of the Second Respondent.
79. It was common cause that the Applicant was an educator at the school with approximately 30 years of teaching experience. It was also common cause that the advertised post of HOD required English and Geography subjects. The Applicant conceded under cross-examination when comparison was made on his qualification in the required subjects and managerial experience to that of the Second Respondent that he did not have them, whereas the Second Respondent met the minimum qualification requirements and above and also had the managerial experience of required of the post.
80. The documentary evidence of the Applicant’s qualifications submitted did not support his arguments that he possesses the minimum requirements of English and Geography with an additional qualification; but obtained the subjects only on his Secondary Teachers Diploma. The Applicant further conceded that the Second Respondent majored in English and Geography for his teacher’s diploma, obtained Higher Education Diploma with Vista University majoring in English and Geography, and furthermore obtained Bachelor of Arts degree majoring in English. The Applicant conceded that he did not have any other qualification beyond the teacher’s diploma but argued that he registered for Bachelor of Education Honours at the University of Pretoria but had to drop off his studies due to health reasons after he obtained two (2) modules. He submitted that it was an omission on his side not to include such documentary evidence.
81 The Applicant also conceded that besides the years of experience as a temporary teacher from 1993, the Second Respondent has more experience as HOD as before his resignation at Mmaditsi Secondary School, the Second Respondent was appointed as the HOD from 1994 to 2009 giving him 15 years’ experience, and he did not have such HOD experience. He furthermore conceded that even the second recommended candidate after him Mr Makgoba, was also more qualified than him since he obtained a degree majoring in English and Geography.
82. I must say that although I found Ms Mashabela’s evidence to be corroborating the First Respondent’s witnesses in many material respects as it will appear below on what transpired at the two shortlisting, interviews and at both parents and SGB meetings, she distanced herself from the critical decisions made in all those processes. She argued that even if she signed the documents for both processes she was just instructed to sign as the Chairperson of SGB and sat as an observer. She did not want to answer why she found the second process unfair when she signed for the recommendations of the candidate in the second process; that the Second Respondent was the best candidate with relevant qualifications and experience.
83. What was also important to note is that Ms Mashabela disputed that she was aware that the two SGB members came to the school to complain about the first interviews but only about the mismanagement of the school funds, which evidence I find very improbable as in her evidence in chief she did testify that the two SGB members who complained already raised their concerns during the shortlisting process that they wanted Mr Kgwete to be shortlisted. Therefore they could not have probably complained about the school monies only when there was also that burning issue which they already raised to the shortlisting panel. She denied that she was aware of the division within the SGB.
84. I found Ms Mashabela to be a witness very economical with the true facts and she did not want to take the responsibility of her participation in the second shortlisting and interview process and painted a picture that the Circuit Manager just called them to the meeting to inform them rather than discuss with them the challenges faced with the first tainted interview process and discussing and advising on the wayforward to redo the process.
85. I find that it was clearly not correct that she was hearing for the first time in the parents meeting that the SGB was divided. The division of the SGB was already there during the shortlisting process as outlined by the testimonies of all the First Respondent’s witnesses, and secondly by the two SGB members’ failure to attend the interviews without any apology and whilst the interviews were conducted they deliver the complaint letter to the Circuit Manager without even speaking to the fellow SGB members. Yet when the Circuit Manager did not discuss with them and told them what to do, the SGB did not challenge it. She acknowledged that she did have the right to object if she was of the view that the recommendations of the Applicant were correct and there were no valid grounds to nullify them but did not as they wanted the post to be filled. I would have under those circumstances expected the SGB, led by her as the Chairperson to defend its earlier recommendations of the Applicant if they believed they can stand by their decision and it was the correct one. The fact that there was no objection from any of the SGB members to redo the process showed that this was an agreed process.
86. The First Respondent called three witnesses, the Circuit Manager Mr Phasha, the Principal Mr Manaka, and one of the SGB members Mr John Make. According to Mr Phasha, he met with the SGB and advised them that the first shortlisting, interview and recommendation process was contaminated as the SGB was divided and also preferred certain candidates over others, hence the process was nullified and restarted. This was on the basis of the complaints of the two SGB members and the SGB preferences of some candidates for the HOD position which was confirmed when he met with the SGB. His evidence was corroborated by the evidence of Mr Manaka to a very large extent.
87. Mr Manaka’s evidence at first seemed to be very shaky and not very much coherent. I however observed in his demeanor that he was quite nervous; and as he continued with his testimony he became relaxed and his evidence corroborated the evidence of Mr Phasha and to some extent that of Ms Mashabela in most material respects, except a contradiction about whether the complaint letter was read to them by Mr Phasha before the interviews or after the interviews since Mr Phasha testified that he did not accept the letter but just read the contents. I find the contradiction very immaterial as it was common cause that the two SGB members came to deliver the complaint letter to Mr Phasha on the date of the interviews and the contents of the letter was explained by Mr Phasha to the SGB members, which was a common cause issue
88. Mr Manaka’s evidence was corroborated by Ms Mashabela’s testimony about the compliant letter but from her evidence it was not clear it the Circuit Manager read the letter to them when he called the SGB or just told them about the contents of the letter. I have no reason to reject Mr Manaka’s evidence he actually came across to be a reliable witness even though at some stage the First Respondent anticipated to make an application to declare him a hostile witness which application was not pursued. Although he testified that he did not have any preference of any specific candidate but the best candidate for the benefit of the school and the learners, it seemed that the Applicant was in his good books; moreover that he even wrote a recommendation letter dated 21 September 2021 for the Applicant on which he testified he could not remember but it bore his signature; which he conceded it could not have been forged.
89. On the above aspect, I find it very improbable that Mr Manaka did not write the recommendation letter for the Applicant and it’s almost a year ago for him to forget it, especially after even been shown the contents, which was corroborated by his evidence that the Applicant did a good job at the school in particular with learner discipline and timeous school attendance as well as school academic activities to the extent that his work was appreciated by the HOD of the Department. Mr Manaka also gave a perspective evidence of the years of teaching for the Applicant for English and Geography in the higher grades and the change by the former Principal to move the Applicant to lower grades and Kgwete to higher Grades.
90. Mr Make’s testimony was very short and it was mainly confirming that him and Mr Mashabela were the two SGB members who wanted Mr Kgwete to be shortlisted because he taught Grades 9 to 12 rather than the Applicant who taught Grades 8 to 9, and when it did not happen they lodged a complaint with the circuit manager on the date of the interviews. He testified about the Applicant’s years of service at the school and that the Applicant did not teach both English and Geography hence they lodged a complaint regarding the shortlisting process to the Circuit Manager. In his view the Applicant was not a good teacher as he also taught him when he was a learner at the same school in the year 1989. He furthermore confirmed the version of the other witnesses that they were also complaining about the usage of the school money without their knowledge and that when the Circuit Manager sent them back to the Principal to go and sort out their issues, the Principal did not want to speak to them and left them in his office telling them that the shortlisting decision shall not be changed. Furthermore his testimony was that they were not invited to any SGB meetings whereas the Principal’s testimony was that they invited them several times by telephone and letters delivered to their homes, which they refused to accept. I have however established from his cross-examination that they were actually invited to the SGB meetings but both him and Mr Mashabela refused to attend because they were very bitter about the issue of not shortlisting Mr Kgwete and that the school safe was broken and monies were withdrawn without their approval as the signatories.
91. Mr Make reiterated the divisions of the SGB during the shortlisting process, which evidence corroborated that of the Principal and the Circuit Manger. I however made an observation of a very defensive attitude in his testimony especially when asked questions during cross examination, more particularly when it was put to him that he tried to bribe the Applicant to give him money so that he could come and testify in his favour and that he told the Applicant that he was bought to come and testify against the Applicant so that he should be taken back as the SGB member which allegations he disputed, The Applicant however did not have any evidence to substantiate these allegations against Mr Make. What was surprising was that Mr Make denied any knowledge of the complaint letter it was testified he and Mr Mashabela delivered to the Circuit Manager. I found this evidence untruthful as the other witnesses, Mr Phasha, Ms Mashabela and Mr Manaka have already testified about the existence of this letter and the Principal even testified that a copy of the letter was kept at the school even though it was not presented as documentary evidence in the arbitration proceedings.
92. The Second Respondent elected not to lead evidence but he asked some witnesses questions in cross examination in some instances. He also submitted his written heads of argument and submitted that I should consider the evidence presented which was in his favour and showed that the first interview process was flawed and not fair due to the division and conduct of the SGB preferring certain candidates who did not even qualify for the post. He furthermore prayed that as no one questioned his appointment or the process that led to his appointment, besides the Applicant seeking a protected promotion, that my decision should not jeopardize his appointment as HOD at Makgamathu Secondary School.
93. It is my considered view that merely because the Applicant was recommended by the SGB in the first interviews, in the absence of cogent evidence the decision not to appoint solely on that recommendation, would not, per se, entitle him to the position. The recommendation is not an appointment as it must still be decided by the HOD of the Department whether to appoint or not. The recommendations may also be rejected based on the HOD’s discretion.
94. The Applicant’s argument that he qualified to be shortlisted because he acted as HOD for a number of years is rejected. The First Respondent made specific reference to the Collective Agreement 3 of 2016, ELRC Guidelines: Promotion Arbitrations, in particular, Clause 6 .7 that provides that a permanent serving candidate who acted for twelve (12) or more continuous months in an advertised post and meets the minimum requirements must be shortlisted and the educator must have been authorised by the HOD to act in the position. The Applicant’s testimony which was confirmed by the Principal was that the acting was just an internal arrangement at the school and the acting in the post was not authorised by the HOD and he was not paid any acting allowance.
95. I find that to promote the Applicant under the circumstances would be an untenable outcome that would expose the First Respondent to more valid claims of unfairness as more deserving candidates would be wrongly overlooked as the HOD shall have failed to apply his/her mind by mechanically implementing the wrong recommendations of the interviewing panel when the evidence is clear and the Applicant conceded that he did not meet the requirements for both English and Geography subjects required for the post. Moreover, it was evident that the Applicant should not have even been shortlisted in the first instance as he did not meet the minimum requirements of Phase2. The Applicant cannot then be allowed to unjustifiably benefit for the wrong recommendation due to the shortlisting panel that did not properly do its job.
96. Based on the evidence led, I find the evidence convincing that the Circuit Manager had the responsibility to ensure that the recruitment process was conducted fairly and procedurally and was not tainted with any procedural flaws, hence the second shortlist and interview process. I agree with the First Respondent’s arguments that I should not interfere with the First Respondent’s decision not to appoint the Applicant as the Applicant has failed to prove that the First Respondent’s decision was seriously flawed and grossly unreasonable. I consequently find that the second round of interviews was not procedurally flawed and not unfair to the Applicant.
97. The overall onus to prove unfairness lies with the Applicant and yet his own evidence is not sufficient to underpin his claim of protected promotion, while on the other hand the First Respondent has adduced abundant evidence to parry the employee’s allegations of unfairness.
98. A protected promotion is a remedy awarded to the employee who successfully proves that he/she ought to have been promoted but for the unfair conduct of the employer. In this case I find that there is insufficient evidence on record to hold that, but for the First Respondent’s conduct, the Applicant would have been promoted based on the evidence presented that he did not qualify for the position even if he was shortlisted, interviewed and recommended for the appointment.
99. In the end, the prerogative to appoint lies with the employers, as long as they comply with the tenets of fairness, which is to adhere to the minimum requirements of the post, and where appropriate, grant suitable candidates a fair opportunity to compete for the post.

100. In the judgment of Sun International Management (Pty) Ltd v CCMS and Others (LC) Unreported case no JR939/2014. 18-11-2016 (Lagrange J), the court held that an employee claiming they ought to have been appointed to the position applied for, bears the onus to establish that but for the employer’s conduct, they would have been appointed.
101. The judgment in Ncane v Lyster 2017 38 ILJ 907 (LAC) confirms that labour forums and the court will not easily interfere with an employer’s decision regarding who should and who should not be promoted. The Labour Appeal Court considered the balance that must be struck between the managerial prerogative to promote employees and the principle that labour forums must intervene in the labour arena if fairness so requires.
102. In Noonan v SSSBC and others [2012] 33 IJL 2597 (LAC), it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an Employee an opportunity to compete for a post constitutes an unfair labour practice. If the Employee is not denied the opportunity to compete for the post, the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.
103. It is therefore my considered view that the First Respondent did not act unfairly in nullifying the SGB’s recommendations of the first interviews that recommended the appointment of the Applicant and conducting the second round of interviews that led to the appointment of the Second Respondent. It is also my finding that the Second Respondent was the suitable candidate to be appointed in the post in the second round of interviews.
104. Having considered the evidence in its totality, I am convinced that the Applicant failed to discharge his onus to prove on a balance of probabilities that the First Respondent committed an unfair labour practice as envisaged by Section 186(2)(a) of the LRA.
105. I therefore find that the Applicant is not entitled to the relief sought.

AWARD

106. The First Respondent, the Department of Education-Limpopo, did not commit an unfair labour practice as contemplated by Section 186(2)(a) of the LRA, by not promoting the applicant, Abram Maitji Tebele.
107. The Applicant is not entitled to the relief sought.

ELRC PANELLIST:
GRACE MAFA-CHALI