ELRC35-22/23 EC

Case Number: ELRC35-22/23 EC
Panelists: Malusi Mbuli
Date of Award: 17 January 2023

In the ARBITRATION between

NUPSAW obo SIYABULELA VIKILAHLE
(Applicant)

And

DEPARTMENT OF HIGHER EDUCATION – EAST CAPE MIDLANDS TVET COLLEGE
(1st Respondent)

SHANON JACKSON
(2nd Respondent)


SUMMARY: Labour Relations Act 66 of 1995 – alleged unfair labour practice relating to promotion in terms of section 186(2)(a) – whether the appointment of the 3rd respondent and non – appointment of the applicant was unfair and constitutes an unfair labour practice as contemplated in section 186(2)(a) of the LRA.

The appointment of the 2nd respondent and the non – appointment of the applicant was procedurally and substantively fair and did not constitute an unfair labour practice as contemplated by section 186 (2) (a) of the LRA.

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter came before the ELRC for arbitration in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 (promotion dispute). It was set down for arbitration hearing at the East Cape Midlands TVET College offices at Uitenhage on a number of days until the 29th of November 2022 before Commissioner Malusi Mbuli.

2. The applicant Mr. Siyabulela Vikilahle attended the hearing and was represented by Mr. Sangolinye Ngqungwana an official of the applicant’s trade union NUPSAW
3. The 1st respondent, the Department of Higher Education Eastern Cape Midlands TVET College was also present at the hearing and was represented by Mr. Lungisa Mpati, an official of the respondent.

4. The 2nd respondent Mrs. Shanon Jackson was also present at the hearing and was represented by Adv. Snyman an official of the 2nd respondent’s trade union NAPSAWU.

5. The matter was finalized on the 29th of November 2022 and the parties agreed to file their closing arguments not later than the 05th of December 2022 and both parties filed their arguments.

ISSUE TO BE DECIDED

6. I am required to determine whether the appointment or promotion of the 2nd respondent and non-appointment of the applicant was unfair and constituted an unfair labor practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015, and if so the appropriate remedy.

BACKGROUND TO THE ISSUE

7. The applicant, Mr. Siyabulela Vikilahle applied for the position of the First Education Specialist – Business Studies in the respondent’s institution, Department of Higher Education – East Cape Midlands TVET College. The applicant was shortlisted and interviewed for the said position but was not appointed to the said position.

8. The interview panel recommended both the applicant and the 2nd respondent for appointment and at first the applicant was recommended as no 1 candidate and the 2nd respondent was the 2nd recommended candidate.

9. The recommendation was then referred to the Principal - the accounting and appointing authority and when he considered the attributes of the 2 candidates he picked up that the applicant’s qualifications and experience were not appropriate for the position in question – First Education Specialist – Business Studies.

10. He was then of the view that the applicant did not meet the minimum requirements of the post and did not appoint the applicant but rather referred the matter back to the panelists for consideration. The panel considered that and then recommended the 2nd respondent as the number 1 candidate and the 2nd respondent was later appointed to the position.

11. It is not disputed that the 2nd respondent met the minimum requirements of the post advertised and that further her qualifications and experience were appropriate for the position in question. The respondent argues that the applicant should not have been shortlisted in the first place as he does not meet the minimum requirements of the post.

12. The applicant disputes the appointment of the 2nd respondent based on the issue of Employment Equity to say that there is over representation of coloured females in the category of the said post. The respondent submits that the argument advanced by the applicant is misplaced because the advertising criteria for the position was not based on any equity targets of the Department or the College.

13. He states that reference to any targeted group of the designated employees e.g. Male or Female; Coloured Male or African Male, other than to say that preference will be given to suitably qualified candidates especially gender, race and disability.

14. Respondent states that, based on what is set out hereunder, it will be argued that the applicant has failed to produce sufficient evidence to prove that the respondent has committed an unfair labour practice, and, in the circumstances, this matter stands to be dismissed.

15. The Department of Higher Education – East Cape Midlands College appointed the 2nd respondent Mrs. Shanon Jackson who is now occupying the position. The applicant felt that the process that led to the appointment of the 2nd respondent and her non – appointment was unfair and constituted an unfair labour practice as envisaged by section 186 (2) (a) of the LRA.

16. The applicant’s dispute is premised on procedural fairness as well as substantive fairness and the applicant’s argument is that the Department of Higher Education acted unfairly in appointing the 2nd respondent and prays in the last paragraph of the arguments that the applicant be granted protective promotion.

17. The applicant then referred an unfair labour practice dispute to the ELRC and the matter was enrolled for arbitration and finalized on the 29th of November 2022 but the parties agreed to file their arguments not later than the 05th of December 2022 and both parties filled their closing arguments.

SURVEY OF EVIDENCE

Applicant’s submissions.

18. The applicant Mr. Siyabulela Vikilahle took the witness stand as the 1st witness and testified to the following effect. That he joined East Cape Midlands College in 2011 therefore has about 11 years’ service with the respondent.

19. He further alluded to the fact that he was also a Lecturer at King Sabata Dalindyebo TVET College and in both institutions he was teaching Mathematics, promoted to the position of a Senior Lecturer and he also taught Business Studies and Computer Practice at Heath Park Campus. He stated that he has experience in both Engineering and Commerce fields.

20. He testified that he was unhappy about the outcome of the recruitment processes because he was the number one recommended candidate of the Panel of Interviewers and he went for verification testing and vetting and that alone was a reasonable expectation that was created that he got the post.

21. He submitted that when his name was referred to the College Principal he was not appointed and the recommendation was referred back to the panel because the Principal felt that his formal qualifications, experience, and prior learning were not relevant and appropriate to the post. He states that he was further referred to the Employment Equity Act about the suitability of a qualified person.

22. Mr. Siyabulela Vikilahle further submitted that Mathematics, Computer Studies, Statistics, Communication Skills, Industrial Psychology and Mathematical Literacy are all commercial subjects and that all his offerings in his BSC Degree are in line with a BCom Degree in commerce.

23. He states that the Faculty of Education has some subjects under the commerce stream and this can further be confirmed by the prospectus of the Nelson Mandela University, which contains general information and admission requirements for undergraduate students.

24. He states that he has 8 years managerial experience and that all candidates that were shortlisted have an education qualification. The 2nd Respondent was the highest scored candidate, but the gap in between is not significant as it is only three (3) marks.

25. It was the Applicant’s evidence that the 1st Respondent has violated its own Recruitment Policy by failing to consider equity targets of the College and that the Employment Equity Plan was not followed. He said no law permits the Principal to deviate from the Panel recommendation.

26. Consequently, one of the union members objected to the Principal reconvening the 2nd panel. There was an objection letter that was sent by NEHAWU objecting to the Principal’s decision to reconvene the Panel, however and that yielded no positive outcome as it was just ignored.

27. He confirmed that he is offering Mathematics at Charles Goodyear Campus and that he once offered Computer Practice at Health Park Campus. He stated that his qualification is BSC majoring in Mathematics and Zoology.

28. He stated that Mr. Botha, who is the Campus Manager, had a problem with him and on the issue of employment equity, the applicant conceded that the advertisement does not talk about the employment equity targets of the College, however preference will be given to designated groups especially, gender, race, and people with disabilities.

29. He further conceded and confirmed that at the time of the filling of the position in question there was a moratorium on the implementation and application of the Employment Equity Act and policy because the College was engaged in the placement and reshuffling exercise. He confirmed that all other recruitment processes were followed in the filling of the post in question.

30. The 2nd applicant’s witness was Mr. Arthur Monwabisi Wopa who testified that he was an observer during the recruitment processes of the First Education Specialist: Business Studies. He submitted that five (5) candidates were shortlisted, but the other three (3) candidates were not strong enough to be recommended for the position and that the two candidates, the applicant and 2nd respondent were discussed but the deliberations were not only limited to scores.

31. He stated that the panel further looked at the candidates CV’s and the issue Employment Equity. He stated that they considered relevant experience and relevant qualifications and conceded that according to that document the 2nd Respondent has more subjects than the applicant as per the curriculum designed for Formal Technikon Instructural Programmes in the RSA. He further mentioned that Statistics was not part of the commerce curriculum at the time.

32. He dealt with the issue of the Principal to reconvene the Panel and expressed his disappointment for the Principal to reconvene the 2nd Panel and that as NEHAWU they lodged a grievance to the Principal to register their dissatisfaction in the manner the matter was handled as an extreme form of interference in the panel recommendation. He further submitted that in the same letter they challenged the presence of a certain Ms. Peterson who was part of Panel and happened to be a relative of the 2nd Respondent.

33. He conceded that there were three members of the Panel that were scoring and further conceded that Ms. Peterson was not scoring or discussing candidates in making a recommendation but was a resource person. He could not explain how the presence of Ms. Peterson prejudiced the Applicant if she was not scoring nor discussing candidates in making a recommendation.

34. He confirmed that the 1st Respondent is an Affirmative Action Employer, however he conceded that the advertisement did not specify which categories of the designated groups should be given preference for the position. The applicant’s representative closed their case and indicated that he would like the Principal and the 2nd respondent to testify and the 1st respondent and the 2nd respondent’s representative confirmed that these witnesses will testify.

35. The applicant’s representative then closed their case and the respondent’s representative then called their 1st witness Mr. Charl Van Heerden who testified that he has been the Principal of East Cape Midlands College since 2017. He further testified that in terms of the Delegation of Authority he is the appointing authority at the level of the College.

36. He went through the minimum requirements as per the advertisement on page 107 of the respondent’s bundle and confirmed that the 2nd Respondent has a qualification in Commerce / Business Studies whilst on the other hand the applicant has qualification in Science.

37. In the circumstances, the applicant should have not been shortlisted because he has fallen short in meeting the requirements for the position. However, he does not dispute the fact that the Applicant is professional educator in his own right.

38. The Principal alluded to the fact that Business Studies in the TVET space consists of various program which the applicant would not be able to perform. He highlighted that he could not approve the appointment of the applicant as recommended by the 1st Panel, as he believed that he was more qualified in the field of Mathematics and Science, with his qualification which is BSC.

39. He said his qualifications might pose certain limitations to his experience if appointed as a First Education Specialist: Business Studies. The witness further submitted that the 2nd Respondent has a vast amount of experience above that of the applicant, having taught Business Studies in different capacities as a Lecturer and a Senior Lecturer.

40. He stated that the experiences and qualifications of the applicant and the 2nd respondent are totally incomparable. He averred that the position in question was looking for someone who would be able to support Business Management Programs.

41. He gave context and stated that in the TVET environment they have various First Education Specialists for different programs including Mathematics and Science of which the applicant will be most suitable if the position was vacant.

42. He went further to state that Mathematics is not within the scope of the position that was advertised because in their environment it is not classified as a commerce subject. He reiterated the fact that Mathematics belongs somewhere else that is in the category of First Education Specialist: Mathematics and Science.

43. He mentioned that Computer Science has nothing to do with Business Studies and Computer Science is more relevant in Information Technology. In the TVET space, Computer Practice is more relevant as it forms part of Business Studies.

44. It was the principal’s testimony that the 2nd Respondent was the highest scored candidate during the interview process and on the issue of employment equity, the Principal submitted that the Panel misdirected themselves by considering such because the advertisement criteria was not based on Employment Equity or any Equity Plan or targeted groups of the College.

45. The Principal testified that he never exerted undue influence on the members of the Panel to change their recommendation but wanted to be fair and transparent and he found it necessary and important that the members of the Panel relook at the recommendation and apply their minds accordingly.

46. He stated he was not under any obligation to remit the matter back to the Panel because according to the authority vested in him, he can appoint anyone from the recommended list from 1 up to 3.

47. The 2nd witness of the respondent was Mrs. Zakithi Dlamini who testified that she works for the respondent as a Deputy Principal: Academic and she was also the Chairperson of the panel of interviews during the recruitment process of the post of First Education Specialist: Business Studies. She indicated that she has been a member of interview panels and has experience in handling interviews.

48. Ms. Dlamini stated that all Five (5) candidates that they interviewed met the minimum requirements for the position in question and that their criteria was based on managerial experience and qualifications because the post was specific to Commerce – Business Studies.

49. She confirmed that that both the Applicant and the 2nd Respondent had the required managerial experience and that the 2nd Respondent was the highest scored candidate, however, they decided not to confine themselves on scores and looked at all other factors including managerial experience and equity.

50. When they discussed the recommendation the issue of equity came up strongly and it came to light that in the Academic Division there are six females and one male, and therefore, the applicant should be recommended to the position. She stated that this is the only reason why the applicant was recommended as the number 1 candidate.

51. She further confirmed that the issue of equity was never part of the advertisement criteria including during the shortlisting stage and that equity was only considered for fair employment practices. She testified that there was nothing wrong for the Principal to remit the recommendation back to the Panel for reconsideration.

52. She averred that the Principal had no under obligation to remit the recommendation back to the Panel because in terms of the authority vested in him, he can appoint anyone from the recommended list and that this showed that the Principal wanted to be fair and transparent.

53. She stated that the panel then applied its mind to the issues raised by the Principal and that it cannot be said that the Principal has unduly influenced the process because the Principal raised concerns on the issue of relevant experience and qualifications when you compare the two candidates.

54. She concurred with the Principal that the Applicant’s experience might have some limitations in the performance of his duties and that the reasoning of the Principal was based on the duties and responsibilities aligned with the position.

55. In the interviews and when they made their 1st recommendation they never put much emphasis on the duties of the position or the job content and specifications other than managerial experience and equity as discussed.

56. The 3rd witness of the respondent was Mr. Nico Botha who testified that he is a Campus Manager at Thanduxolo Campus. He confirmed that he was the member of the Panel during the recruitment process of the First Education Specialist: Business Studies and submitted that during the process they only looked at managerial experience of candidates and equity.

57. Mr. Botha’s gave evidence that the 2nd Respondent has a vast amount of experience above that of the Applicant in the field of Business Studies because she was a lecturer at High Street Campus teaching Business Management and subsequently promoted as a Senior Lecturer.

58. He stated that the 2nd respondent’s qualifications are appropriate to the post in question and that the applicant is more experienced in Mathematics and Science environment which is not much appropriate to the post of First Education Specialist – Business Studies.

59. The 2nd respondent’s representative then called the 2nd respondent Mrs. Shanon Jackson who testified that she applied for position in question the First Education Specialist – Commerce and was the successful candidate.

60. She stated the position required someone with a Degree or Diploma in Commerce and Education qualification, experience in teaching Commerce subjects and managerial experience, 5 years appropriate experience and in possession of a SACE certificate.

61. She averred that she met the minimum requirements of the position and even had far more experience than what is required which is 5 years’ experience, had vast knowledge of policies in the TVET College, had driver’s license and was also computer literate.

62. She stated that she has managerial experience, has worked as a Senior Lecturer and as Deputy Campus manager from 2016 to 2022. She testified that there are various programs in the Commerce field that need to be run by a person who is appropriately qualified and has to support and train lecturers which is something that she has always been doing.

63. She averred that the applicant is more into the Science field and that she does not know about his experience but that she was the best candidate for the appointment into the said position. She stated that she scored the highest scores in the interviews and it is fair that she was appointed. She further stated that the advert was not an affirmative action post and that there was no need to talk about or apply the principles of Employment Equity.

ANALYSIS OF EVIDENCE AND ARGUMENT

64. This matter was referred to the ELRC in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015.

65. Section 185 (b) of the Labour Relations Act 66 of 1995 as amended in 2015 provides that:

- every employee has a right not to be subjected to an unfair labour practice. The applicant feels that the employer has committed an unfair labour practice by failing to shortlist the applicant.

66. Both the applicant and the 2nd respondent were shortlisted to the position in question and were also interviewed. The respondent appointed the 2nd respondent to the position of the First Education Specialist – Commerce – Business Studies.

67. As indicated above the applicant contests the procedural fairness of the appointment of the 2nd respondent and his non – appointment because he believes that the Principal unduly interfered with the process and that he is qualified for the position.

68. In essence the applicant does not dispute that the 2nd respondent meets the minimum requirements for the post and was eligible for appointment but substantively seems to be unhappy that the 1st recommendation of the panel was not accepted by the Accounting Officer and referred back for reconsideration. He also argued strongly that he should have been appointed based on the application of the Employment Equity Act.

69. In this regard the applicant’s representative called 2 witnesses, the applicant Mr. Siyabulela Vikilahle and Mr. Monwabisi Wopa in support of the applicant’s claim. The respondent called Mr. Charl Van Heerden, Mrs. Zakithi Dlamini and Nico Botha who gave evidence on behalf of the respondent. The 2nd respondent also testified at the hearing.

70. The two candidates in question in this dispute, the applicant and the 2nd respondent were both eligible for appointment to this position until the Principal discovered that the applicant is not appropriately qualified and referred the panel recommendation back to the panel for its reconsideration.

71. As indicated above at the commencement of the hearing the respondent’s representative pointed out that the applicant’s referral and request for arbitration deals with Employment Equity issues but that the position was not an affirmative action post.

72. He said this is so because the post was not advertised as such and that the institution had a moratorium on the application of affirmative action by way of an agreement they had with organized labour in favour of the placement process. This does not apply to this position only.

73. The applicant desires that Employment Equity be implemented so that the applicant can be favoured but did not contest the agreement and policy of the respondent on the moratorium on the application of Employment Equity. The applicant’s dispute is a promotion dispute under section 186 (2) (a) because the claim should not be based on the principles of Affirmative Action, as discussed above, but should be based on the procedural and substantive issues if it is really a dispute of right.

74. The decision in Polokwane Local Municipality v/s South African Local Government Bargaining Council & others {2008} 8 BLLR 783 issued on the 07th of March 2008 by Molahleli J. is authority for the proposition that the desire by the applicant to be upgraded or to have his position upgraded is not a dispute of right and therefore not an unfair labour practice.

75. The court set aside the Commissioners award in this matter which entertained that type of a dispute as an unfair labour practice dispute. The court quoted with approval its dictum in the decision in Northern Cape Provincial Administration {1999} 7 BLLR 648 which distinguished between “Rights and Interests”. In this matter the applicant’s desired outcome was for his job to be evaluated and upgraded.

76. Generally employees do not have right to employment or promotion but the protection under section 186 (2) (a) relates to unfairness that happens when the employer seeks to promote or employ an employee, the words promotion and employment are used synonymous for the purposes of this section.

77. The point is that the applicant does not have a right to the position or level that he wants but has an interest because his colleague have been appointed in that level. This matter in so far as it relates to the employment equity part of the argument is therefore not an unfair labour practice because unfair labour practice disputes are disputes of right but interest in the circumstances.

78. In as far as procedural and substantive issues of this Unfair Labour Practice Dispute the respondent has argued that the applicant has failed to prove that he was the best candidate for the position. In fact it is not in dispute in this arbitration that the 2nd respondent met all the requirements of the job.

79. I do not need to dwell much on this point because and the issue because it is accepted that the 2nd respondent was eligible for appointment. The issue that seems to bother the applicant is the referring back of the recommendation to the panel again for reconsideration.

80. In this regard the Appointing Authority – Principal is not bound by the recommendation of the panel and in fact the Principal acted reasonably and transparently by referring the matter to the panel again for reconsideration. It must be noted that the Principal has authority to appoint and could have easily appointed the 2nd recommended candidate because he has that discretion. Even if the Principal had dealt with this appointment it would still be fair because of the reasons he gave when remitting the matter to be dealt with by the panel.

81. The reason advanced by the Principal for referring the recommendation back to the panel was that they had over looked the fact that the applicant was not appropriately qualified and experienced. If you look at the qualifications of the applicant, which I am not going to go back to again, it is clear that that the applicant is more in Science than Commerce.

82. The applicant’s contention, on his version alone, that the subjects which he has in his Bsc are Commerce subjects and therefore he qualifies, is rejected. The applicant has failed to produce sufficient evidence to prove his case on a balance of probabilities. The respondent through its witnesses presented clear, coherent, consistent and reliable evidence to support the respondent’s case.

83. For the reasons mentioned above I have no reason to disbelieve and reject the evidence of the respondent’s witnesses and as such the respondents version remains the most credible and acceptable version. It is also worth noting that in this type of a dispute the applicant bears the onus to prove that the respondent has acted unfairly and its conduct constituted an unfair labour practice.

84. In SAMWU obo Damon v Cape Metropolitan Council (1999) 20 IU 714 (CCMA) AT 718 A the court said that in an unfair labour practice dispute the employee bears the onus to prove the unfair labour practice complained of and in order to do that he must examine the reasons as to why he was not promoted and demonstrate the defect in the employer’s reasoning.

85. This means that the employee must demonstrate that he was overlooked for promotion on the basis of some unacceptable, irrelevant or invidious comparison. He must show that on the criteria used to select another person above him, he stood head and shoulders above that person. This is not the case in this dispute and in fact the opposite is true.

86. The fairness required in the determination of an unfair labour practice must be fairness towards both parties, i.e. the employer and employee. In Provincial Administration Western Cape (Department of Health & Social Services) v Bikwana & others (2002) 23 ILJ 761 (LC) paragraph (29)-(32) the Labour Court held that: There is considerable judicial authority supporting the principle that courts and adjudicators will be reluctant, in the absence of good cause clearly shown, to interfere with the managerial prerogative of employers in the employment selection and appointment process. Courts should be careful not to intervene too readily in disputes regarding promotion and should regard this area where managerial prerogatives should be respected unless bad faith or improper motive such as discrimination is present.

87. In this dispute I have no reason to disbelieve the corroborated evidence of the employer witnesses and prefer that of the applicant and his witness. The 2nd respondent met all the requirements of the post as envisaged in the advert and this is not disputed.

88. From the argument above it then follows that the decision by the respondent to appoint the 2nd respondent and not to appoint the applicant was procedurally and substantively fair based on the evidence and argument advanced above.

89. The 2nd respondent was later recommended by the panel as the number one candidate and the respondent has to appoint the 2nd respondent unless there is a valid and reasonable explanation for disregarding that recommendation. The applicant has failed to demonstrate that there was an invalid, unreasonable and unfair reason why the respondent appointed the 2nd respondent.

90. The respondent has the authority and discretion to appoint but has a responsibility to exercise such discretion reasonable and fairly. In Arries v/s CCMA & others (2006) 27 ILJ 2324 (LC) the court held that there are limited grounds on which the arbitrator, or court, may interfere with the discretion which had been exercised by a party competent to exercise that discretion.

91. The reason for this is clearly that the ambit of the decision – making powers inherent in the exercising of discretion by a party, including the exercise of the discretion, or managerial prerogative of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised.

92. The court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a bias manner.

93. In City of Cape Town v/s South African Municipal Workers Union obo Sylvester & others (2013) 34 ILJ 1156 LC, (2013) 3 BLLR 267 (LC) it was held with reference to Arries decision above, that the overall test is one of fairness. In deciding whether the employer has acted fairly in failing or refusing to promote the employee it is relevant to consider some of the following factors.

- Whether the employer’s decision was arbitrary, or capricious, or unfair.
- Whether the employer failed to apply its mind to the promotion of the employee.
- Whether the employer’s decision not to promote was motivated by bad faith.
- Whether there were insubstantial reasons for the employer’s decision not to promote.
- Whether the employer’s decision not to promote was based upon a wrong principle.

94. If one looks at how the discretion was applied by the respondent in this case it is clear that the Accounting Officer – Principal was fair and reasonable when he referred the matter again to the interview panel when he in fact had authority to appoint a candidate he deems fit.

95. He asked the panel to consider the appropriateness of the applicant’s qualifications and experience which is an important factor for appointment that was overlooked by the panel and the panel itself looked at it and rectified their mistake.

96. In fact it would seem that the panel picked up this issue but when they deliberated, they considered the issue of Employment Equity more than this issue thereby compromising the substantive issues of this appointment.

97. The applicant’s representative argument in his closing arguments, that the decision to recommend the applicant was correct and the decision to appoint the 2nd respondent was incorrect is rejected as it does not have basis and not supported by evidence.

98. The applicant has not managed to demonstrate that one or some of the factors for consideration in the decision above exist for him to challenge the application of the employer’s discretion.

99. There is a clear basis for the respondent to act in the manner described above and the manner in which this discretion was exercised justifies the appointment because the discretion was not exercised in an arbitrary manner, for insubstantial reasons or without applying the mind and obviously not unfairly.

100. There is no justifiable reason for me to interfere with the exercise of the respondent’s discretion in appointing the successful candidate and the appointment of the 2nd respondent in this matter stands.

101. In the circumstances I make the following award.

AWARD

102. The appointment of the successful candidate referred to as the (2nd respondent) Mrs. Shannon Jackson and non – appointment of the applicant Mr. Siyabulela Vikilahle was fair and did not constitute an unfair labour practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015.

103. The applicant’s dispute referred to and dealt with here under case number ELRC35-22/23 EC is dismissed and the applicant is not entitled to any relief.

104. I make no order as to costs.

Signature:

Commissioner: Malusi Mbuli