ELRC715-22/23 EC

Case Number: ELRC715-22/23 EC
Panelists: Malusi Mbuli
Date of Award: 25-05-2023

In the ARBITRATION between


NAPTOSA obo ZONGEZILE KEKE
(Applicant)


And

DEPARTMENT OF EDUCATION – EASTERN CAPE
(1st Respondent)


MIRRIAM NOMAHLUBI MGOQI
(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 2nd 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 Alfred Nzo East District in Bizana on a number of days until the 17th of May 2023.

2. The applicant Mr. Zongezile Keke attended the hearing and was represented by Mr. Aaron Mhlontlo an official of the applicant’s trade union NAPTOSA.

3. The 1st respondent, the Department of Education - Eastern Cape was also present at the hearing and was represented by Mr. Lipapang Tsiu, an official of the respondent.

4. The 2nd respondent Mrs. Mirriam Nomahlubi Mgoqi was also present at the hearing and was represented by a site steward of the 2nd respondent’s trade union SADTU.

5. The matter was finalized on the 17th of May 2023 and the parties agreed to file their closing arguments not later than the 24th of May 2023 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. Zongezile Keke applied for the position of a Deputy Principal post level 3, advertised by the 1st respondent in an open bulletin vol 2 of 2022 at Critchlow Primary School - Department of Education – Eastern Cape. The applicant was shortlisted and interviewed for the said position but was not appointed to the said position.

8. The interview panel recommended the 2nd respondent for appointment and the applicant was recommended as no 5 candidate by the panel and the 2nd respondent was the 1st recommended candidate.

9. The recommendation was then referred to the Department of Education – Eastern Cape, the appointing authority. The 2nd respondent was then appointed and the applicant was not appointed. 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.

10. The Department of Education – Eastern Cape appointed the 2nd respondent Mrs. Mirriam Nomahlubi Mgoqi who is now occupying the position. The applicant felt that the process that led to the appointment of the 2nd respondent and his non – appointment was unfair and constituted an unfair labour practice as envisaged by section 186 (2) (a) of the LRA.

11. The applicant’s dispute is premised on procedural fairness as well as substantive fairness and the applicant’s argument is that the Department of Education – Eastern Cape acted unfairly in appointing the 2nd respondent and pray that the process be reversed.

12. The applicant then referred an unfair labour practice dispute to the ELRC and the matter was enrolled for arbitration and finalized on the 17th of May 2023 but the parties agreed to file their arguments not later than the 24th of May 2023 and both parties filled their closing arguments.

SURVEY OF EVIDENCE

Applicant’s submissions.

13. The applicant Mr. Zongezile Keke took the witness stand and testified as follows. He applied for the Deputy Principal post level 3 at Critchlow Primary School in the Wild Coast District in Bizana in the Eastern Cape Province. At the time he was a post level 1 teacher at Mzambana JSS.

14. The applicant was shortlisted, interviewed and was placed or rated no 5 in terms of the panelist scores and it is not clear whether there was a ratification meeting of the SGB before the names of recommended candidates were referred to the Department for appointment. He averred that in the meeting where the shortlisting and interview panel was elected there was Mr. Ntshetshe who was not a member of the SGB in attendance and Mr. Ntshentshe is just a site steward.

15. He testified that whilst he together with the other 2 candidates were waiting to be seated before the interview the Principal came out of the interview room and told them that they were going to appoint a candidate from SADTU. He confirmed when cross examined that the Principal did not know his union affiliation and that there is no NAPTOSA office in their District and that he did not invite his union to attend the interviews.

16. He stated that he entered the interview in protest and also stated that only SADTU was invited to the interviews. He however confirmed that there is no way that the employer would have known that there were NAPTOSA members as well in order to invite NAPTOSA.

17. He averred that in the interviews there were 3 parent SGB members and 2 SGB members from the teacher component and that the school in question is a middle school. He averred that in terms of clause B.5.4.3.4 the Personnel Administrative Measures, the employer is supposed to invite unions to the shortlisting and interviews.

18. He stated that in terms of the regulations, all decisions taken by the school governing body must have the correct quorum, that is 50+1%, and the parents must be in the majority. Furthermore, the SGB meeting must be properly convened and be presided over by the SGB chairperson.

19. He did not dispute that there was a ratification meeting but stated that it was not clear according to the minutes whether the other members were present as there was no attendance register attached. He stated that the ratification meeting is solely for SGB members and nobody else. He said the union observers do not have a role in the ratification meeting.

20. He stated that the minutes of the ratification meeting indicate that the chairperson, Mr. Ntikivana who presented the outcomes of the interviews is the only one who agreed with the recommendation from the panel and not the members of the entire SGB as a structure.

21. He states that NAPTOSA was not invited to both the shortlisting and interviews. He confirmed that he was asked the same questions by the panelists but stated that he was scored less because the panelists were influenced by the Principal. He also stated that the Principal also wrote a letter of recommendation to the SGB for them to appoint Mrs. Mgoqi.

22. The applicant’s representative then closed their case and the respondent’s representative opened their case by calling Mr. Phakamile Tshazi who testified as follows: That he is the Principal at Critchlow Junior Secondary School and stated that there are no NAPTOSA members at his school and does not even know that there is such a union in their district.

23. He confirmed that there is SADTU union and but on the application form there is no space where the candidates are required fill in their union affiliation for them to know whether they belong to SADTU or NAPTOSA. He confirmed that he wrote a recommendation letter for the 2nd respondent because she work with her and that letter was directed to the Department of Education and not the SGB of the school Critchlow Primary School.

24. He further confirmed that the 2nd respondent applied to different schools and the letter was general to support all her application as a person who know her. He admitted that when the applicant Mr. Keke came for the interviews he welcomed him and some of the candidates but disputed that the applicant’s allegation that he said they will only appoint SADTU members to the post and not NAPTOSA.

25. He averred that Mr. Keke never complained about the process or irregularities in the interview and that after the interviews he called all the SGB members and reported to them the outcome of the interviews and the SGB members recommended the 2nd respondent for appointment to the position in question. He added that if the letter of recommendation was addressed to the SGB he was going to write it in Xhosa because of the level of their education.

26. He averred that he did not know that the applicant belonged to NAPTOSA and that the applicant was supposed to inform his union that there are interviews and that he would like them to observe the processes on his behalf. He stated that there are a number of trade unions recognized in the country and NAPTOSA in the PELRC appears either under ATU or CTU as they are not representative. He averred Mr. Ntshentshe was an observer in the processes and did not play the role of decision making and did not influenced anyone.

27. The 2nd and last witness of the respondent was the 2nd respondent herself, Mrs. Mirriam Nomahlubi Mgoqi who testified she received the invitation to attend the interviews in time and she immediately informed her union for advice and her union SADTU attended the interviews for observation. She confirmed that the applicant was rated no 5 by the interview panel and he was rated no 1. She confirmed that she asked the principal to write her a letter of recommendation to the Department for her applications in different schools and disputed the allegation that the letter was for her application at Critchlow Primary School for the post of Deputy Principal.

28. She testified that Mr. Keke arrived late claiming that he had to start at the police station for fingerprints and that when the principal entered the room where they were waiting Mr. Keke was not alone but they were three in that room. She corroborated Mr. Tshazis evidence that the letter of recommendation was not intended for the SGB panel but for all her applications to different school.

29. She further corroborated Mr. Tshazis evidence that Mr. Tshazi never said that only SADTU members will be appointed to the post and not NAPTOSA members. She stated that there are no offices of NAPTOSA in the Alfred Ndzo East District. She further testified that it was her responsibility to ensure that she is represented by her union as an observer in the interviews.

ANALYSIS OF EVIDENCE AND ARGUMENT

30. 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.

31. 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.

32. The two candidates in question in this dispute, the applicant and the 2nd respondent were both eligible for appointment to this position. The applicant applied for the Deputy Principal post at Critchlow Primary School in the Alfred Nzo East District in Bizana in the Eastern Cape. At the time of the application the applicant was a P1 educator, at the Mzambana Junior Secondary School which is a grading P3 school.

33. The applicant was shortlisted, interviewed and was placed in the 5th position in terms of the scores. It is not in dispute that in terms of the Regulations, all decisions taken by the school governing body must procedurally fair. Also it is not disputed that the SGB meetings must be properly convened and be presided over by the SGB chairperson.

34. The applicants claim is that the Principal influenced the SGB members to appoint the 2nd respondent, the panel was not properly constituted because there was someone who was not a member of the SGB, it is not clear whether there was a proper ratification meeting, 2 candidates were recommended to the Department for appointment and that the scores of the SGB members were biased towards the 2nd respondent the SGB members were influenced.

35. I do not understand the applicants claim that it was not clear according to the minutes who the chairperson was except for the indication that other SGB members were called, and the report was given by the principal.

36. There was a proper ratification meeting in this appointment which made recommendations to the department by the SGB of the school and this is confirmed on the minutes of the ratification meeting and the evidence of Mrs. Nolusapho Sandile. There were no irregularities in the process as stipulated in the South African Schools Act and the Employment of Educators Act that materially compromised the selection process that led to the appointment of the 2nd respondent and non – appointment of the applicant.

37. The applicant’s argument that there was no recommendation made that the successful, Mrs. Mirriam Nomahlubi Mgoqi be appointed according to the minutes is rejected because after the interviews the Principal called all SGB members and they took a decision. The fact that the recommendation is signed by the chairperson and seems to be referring to himself only does not mean that he took that decision alone.

38. The applicant’s argument that the Principal influenced the SGB is not supported by any evidence and it is highly unlikely that the Principal would say only SADTU candidates will be appointed in front of other candidates. The Principal’s evidence that he wrote recommendation of the 2nd respondent to other schools as well is believable from reading the letter and the fact that it is written in English which language the SGB of Critchlow Prinary School do not fully understand.

39. This evidence is corroborated by the 2nd respondent who indicated that she requested recommendation from the Principal to apply to a number of schools. The applicant’s claim that the scores of both candidates are evidence that the panelists / scorers were influenced and not based on the responses given by the candidates is also rejected because it does not have any basis and is not supported by any form of evidence.

40. The panelists were the only witnesses who were there at the interview room and who observed everything and their evidence cannot be disputed in so far as it relates to the conduct at the interviews. The applicant only came to present himself and left. I agree with the respondent that the Principal never influenced the SGB. There is no real evidence that the SGB or scorers treated an applicant unfairly or scored the applicant unfairly and the applicant’s representative argument that it is evident in their scores for the incumbent vs an applicant that the applicant was treated unfairly is rejected.

41. Mr. Ntshetshe did not play any active role in the appointment processes and the fact that he was present in one or two of the meetings does not render the appointment process procedurally flawed, he was just an observer. The department did not know that the applicant was a NAPTOSA member and there is no way that they could have thought of calling the applicants union. In fact the applicant himself confirmed that they were not aware and further said that he did not report to his union and he has only himself to blame.

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

43. For the reasons mentioned above I have no reason to disbelieve and reject the evidence of the respondent’s witness 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 bare onus to prove that the respondent has acted unfairly and his conduct constituted and unfair labour practice.

44. 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.

45. 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.

46. The fairness required in the determination of an unfair labour practice must be fairness towards both party’s 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 dispute regarding promotion and should regard this area where managerial prerogatives should be respected unless bad faith or improper motive such as discrimination is present.

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

48. The 2nd respondent was recommended by the panel and SGB as a no 1 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.

49. 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.

50. The reason for this is clearly that the ambit of the decision – making powers inherent in the exercising of discretion by a part, 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.

51. 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.

52. 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.

53. If one looks at how the discretion was applied by the respondent in this case, it is clear that the appointing authority was fair and reasonable when he made the appointment. The applicant’s representative argument in his closing arguments, that the decision not to recommend and appoint the applicant was incorrect is to be rejected as it does not have basis and not supported by evidence. 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.

54. 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 discretion was not exercised in an arbitrary manner, for insubstantial reasons or without applying the mind and obviously not unfairly. 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.

55. In the circumstances I make the following award.

AWARD

56. The appointment of the successful candidate referred to as the (2nd respondent) Mrs. Mirriam Nomahlubi Mgoqi and non – appointment of the applicant Mr. Zongezile Keke 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.

57. The applicant’s dispute referred to and dealt with here under case number ELRC715-22/23 EC is dismissed and the applicant is not entitled to any relief.


Signature:

Commissioner: Malusi Mbuli