ELRC943-21/22KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No ELRC943-21/22 KZN

In the matter between

NAPTOSA obo Elol de Oliveira Applicant
And
Department of Education KZN 1st Respondent
C Muller 2nd Respondent

ARBITRATOR: R. Shanker

DELIVERED: 05 May 2022

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION
1. This matter was set down for arbitration and was held on 21 June 2022, 28 September 2022 and finalised on 03 April 2023. The parties thereafter submitted written closing arguments.
2. The applicant, Elol de Oliviera (“de Olivier”), was represented by P. Jugnath, an official of NAPTOSA. The 1st Respondent, the Department of Education, was represented by M. Bejanath, an official of the Department of Education. The 2nd Respondent, C. Miller, was represented by I. Kritzinger, an official of SADTU.
3. The applicant referred an unfair labour practice dispute in terms of section 186(2)(a) of the Labour Relations Act, 1995 relating to promotion.
ISSUES TO BE DETERMINED:
4. The issue to be determined is whether the conduct of the respondent in not appointing the applicant to the position of Departmental Head was unfair and if so, whether the appointment of the second respondent should be set aside and the applicant appointed into the post of Departmental Head.
BACKGROUND TO DISPUTE AND NARROWING OF ISSUES
5. The applicant was employed as a Post Level 1 educator at the George Campbell School at the time he applied for the position of Departmental Head. The post was advertised in HRM Circular 35 of 2021 – Departmental Head – Post Level 2 in the Department of Science at the George Campbell Technical High School.
6. The applicant was one of five candidates that attended the interview process. Each candidate was scored – see page 14 of Bundle A. The applicant was ranked in fifth position with the lowest score of 24.6 and was not one of the three recommended candidates. The second respondent was ranked in the first position with a highest score of 37.7 and was appointed to the position.
7. The applicant contends that he should have been appointed to the position as he was the most suitable candidate and performed better than the second respondent in the interviews. Specifically, the applicant contends that:
7.1. The interview committee was not properly constituted in that there were no parents present from the SGB.
7.2. There were no recommended answers and therefore no yardsticks to measure the answers of the candidates.
7.3. The Interview Committee scoring members were bias towards the second respondent in its scoring.
8. As relief, the applicant sought to be promoted to the position of Departmental Head.
9. The applicant testified and called K. Govender to testify in support of his version. Govender was the NAPTOSA observer at the interview process.
10. The respondent called two witnesses to testify in support of its version – N. Ingel, the Resource person at the interview process and J. van Leeuwen, a scoring member of the interview committee.
11. The parties relied on Bundel A during the proceedings.
SUMMARY OF EVIDENCE AND ARGUMENT
12. The evidence listed hereunder are not verbatim accounts of the proceedings but a summary of the evidence deemed necessary to determine the key issues in dispute. All evidence and arguments were considered prior to drafting this award.
13. It is not in dispute that both the applicant and the second respondent met the minimum requirements for the position, were shortlisted and interviewed. Recommendations for the post was determined by the scores allocated at the interview process.
14. Elol de Olivera, the applicant, testified with regard to his qualifications and experience and contended that he had better managerial and teaching experience than the second respondent. He was an acting Departmental Head for a while and at the time of applying for the position, he was the head of subject for Maths. Muller was head of subject for Technical Maths and had similar experience to him but not for the same length of time. The Technical Maths that Muller taught fell under his supervision at the time of applying for the position. He was of the view that the questions were easy to answer. He answered all the questions in the allocated time and felt good about the answers he provided. He maintained that the SGB chair should have been present together with one parent.
15. He could not comment on whether the Interview Committee was bias and on how other candidates- had performed because he was only present during his interview. Apart from Muller, he agreed that the other candidates that scored higher than him were not favoured. He agreed that he did not raise any concerns at the time of the interviews. When the chairperson of the SGB became unavailable, the SGB should have seconded another person from the SGB to deputise. The Interview Committee was therefore not balance to give him a fair outcome. He agreed that his union representative was present at the interviews and signed the score sheets. He agreed that Muller had met the minimum requirements for the position. He agreed that he was given a fair opportunity to answer questions. He agreed that the advert did not call for managerial experience. He agreed that the responsibility of the Resource person was to keep records and observe that the procedure was followed.
16. Govender testified that the union requested him on the day to observe the process. He was present when the interview process commenced. The Interview Committee formulated the questions that the candidates had to answer but did not draft expected answers. He believed that the interview process was not fair. In his view, Muller was a weak candidate yet was ranked number one. There were two other candidates that had performed well and had extensive experience but had been overlooked. All the candidates answered well but were underscored. The questions were very basic. The applicant had performed better than Muller and answered the questions with ease. Muller was incoherent and there were lapses in Muller’s responses. After two questions, Muller had a breakdown and the Interview Committee gave him time to recollect himself. He did not interfere during the process but did not sign the 4th and 5th candidates score sheets. After the five candidates were interviewed, Ingles asked why he had not signed and he told Ingles that the weakest candidate (Muller) had the highest score. They discussed the scores for an hour but could not come to an understanding. Ingles told him sign it or not, the process is going ahead. He signed the score sheets but informed them that he would lodge a dispute. He lodged a grievance but it was dismissed because the grievant was not present and he was not invited to the process.
17. He agreed that he advised the applicant to lodge the dispute. He agreed that there were no other issues with the process apart from the scoring. He agreed it was his error for signing the score sheet. When it was put to him that even if Muller had been scored lower, the applicant would not have had the highest score, he held that, if the scoring had been done fairly, the applicant would have had the highest score as he raised concerns about all the scores. He maintained that two other candidates performed better than Muller and was on par with the applicant. He preferred if one of the other four candidates gets the position. He was happy to proceed with the interview process although there were no parent present.
18. Ingle testified that on the morning of the interviews, the chairperson of the Interview Committee was admitted to hospital and the circuit manager requested him to be the Resource person. He explained this to the union representatives. Both union representatives accepted the changes and agreed to proceed with the process. The unions signed the scoresheet for the candidates thereby confirming that what was written down is correct and that they agreed with the process. With regard to the scores, the interview committee made notes and rationalised their scores. He was happy with the process and the union representative, Govender, signed the documents.
19. He agreed that Govender raised a concern that the Interview Committee was bias, that other answers were superior to Muller’s answers and that Muller’s score was too high. He asked the interview committee to rationalise their scores. The discussions were for about 5 minutes. He disputed that it was for an hour. The Interview Committee stuck to their scores. He was happy with the process. He did not force Govender to sign the form. If Govender did not sign, it would not have stopped the process. The second union official did not raise any objections. Govender indicated that he would lodge a grievance.
20. He was well experienced in performing the role as Resource person having done about 10 processes over 6 years. He made sure that all candidates were given the same questions to answer. He agreed that when answering one question, Muller had a break-down. There was no objection to the constitution of the Interview Committee.
21. Jacques van Leeuwen testified that he was one of the three scoring members at the Interview Committee. He was initially supposed to be the Resource person but due to the illness of the chairperson of the Interview Committee, he was requested to move to a scoring person. Govender signed the scoresheet as an observer to the process and thereby agreed to the content of the document. Govender did raise the issue that Muller had performed poorly as compared to the applicant. He, however, disagreed and indicated that the scores did not reflect such. Muller provided detailed and quality responses as compared to the applicant. Muller took time to think about the questions and answered the question in detail taking the full allocated time. The applicant gave very short answers and didn’t take much of the allocated time. He scored the candidates on the content of what was said. No pressure was placed on Govender to sign the form. Govender raised the issues of scores but eventually agreed that the scores were accurate. There was no time pressure on Govender.
22. He agreed that the applicant ran the maths department for a number of years and played a management role. The departmental head position was a Maths post and the Interview Committee was made aware of that. Muller was in a leadership role and the Head of Technical Maths which was new. Maths literacy was going to be phased out. Students had to take Technical Maths because the school is a technical school. The applicant was in charge of Maths but not Technical Maths. The school offered a technical package and Technical Maths was specific to a technical high school.
23. He maintained that the discussion, after Govender raised concerns with scoring, lasted between 5 to 15 minutes. Govender first discussed with the Resource person and the Resource person discussed with the Interview Committee. He agreed that Muller had a breakdown when answering one of the questions as the question touched a sensitive spot in Muller. That could not be held against Muller as it showed his human side. Muller however answered the question adequately. The moment was fleeting and no extra time was provided. No scores were changed after Govender raised his concerns. He disagreed that the school had made its mind up before the interviews as to whom it was going to appoint.
24. The parties submitted written argument which was considered prior to drafting this award.
ANALYSIS OF EVIDENCE AND ARGUMENT:
25. In terms of section 186(2)(a), “Unfair Labour Practice” means any unfair act or omission that arises between and employer and an employee involving …unfair conduct by the employer relating to the promotion… of an employee”.
26. What is fair would depend upon the circumstances of a particular case and essentially involves a value judgement. The fairness required in the determination of an unfair labour practice must be fairness towards both employer and employee.
27. An employee who alleges that he/she is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair. Mere unhappiness or a perception of unfairness does not establish unfair conduct.
28. It is not the task of the arbitrator to decide who the best or most suitable candidate is. The role of the arbitrator is to oversee that the employer did not act unfairly towards the candidate that was not promoted.
29. With regard to the issue concerning the constitution of the Interview Committee, I accept that there was no parent present. It is clear from the evidence that the Interview Committee had to reconstituted at the last minute due to the illness of the chairperson. This issue was discussed with the union and the union agreed to the changes. Neither Govender nor the applicant raised any concerns about the constitution of the Interview Committee at the interview process. Govender, in fact, indicated in this process that he had no other concerns with the interview process apart from the scoring. The applicant cannot after having participated in a process and when the results do not favour him turn around and state that the panel was not properly constituted. I therefore cannot find that there was any unfair conduct on the part of the first respondent in this regard.
30. I accept that there were no recommended answers and therefore no yardsticks to measure the answers of the candidates as Govender’s evidence in this regard was not disputed. Govender is an experienced union official who underwent the necessary training to observe these processes. He was present from the commencement of the process when the questions were being formulated. At no stage during the interview process did Govender raise any concerns or objection with regard to this issue. The applicant cannot raise this issue now that the outcome didn’t favour him. I therefore cannot find any unfair conduct on the part of the first respondent in this regard.
31. The final issue to consider is the applicant’s contention that the Interview Committee scoring members were bias towards the second respondent in its scoring. The applicant’s only evidence in this regard was led by Govender. Govender’s evidence was contradicted by both the respondent’s witnesses. Having regard to the evidence holistically, I prefer the version of the respondent’s witnesses and I am not convinced that the Interview Committee scoring members were bias toward Muller. I accept the evidence of van Leeuwen and Ingle that the scoring was fair. I accept Ingle’s evidence that, after Govender raised the issue of bias scoring, he gave an opportunity to other scoring member to rationalised their scores. They maintained their scores and he was satisfied with the process. The unions also signed the scoresheets. I accept the evidence of van Leeuwen that Muller provided more detailed and quality responses as compared to the applicant and was therefore given higher scores than the applicant and the other candidates.
32. In fact, the applicants score was much lower than all of the other candidates and the applicant does not contend that the other candidates were favoured over him. Even if Muller was removed from the equation, the applicant would not have been one of the recommended candidates. It was therefore not a close race. It would, therefore, not be reasonable and justifiable to remove Muller and appoint the applicant to the position.
33. I accordingly find that the conduct of the first respondent was not unfair and I, therefore, see no reason to interfere with the decision of the first respondent to appoint the second respondent to the position of Departmental Head.
AWARD
34. In the circumstances I make the following award:
34.1. There was no unfair conduct by the first respondent in respect of the decision to appoint the second respondent and not the applicant to the post of Departmental Head.
34.2. The application is dismissed.
34.3. There is no order as to costs.

Raj Shanker
Senior ELRC Arbitrator
Kwazulu Natal