ELRC270-22/23KZN

ARBITRATION AWARD

Case Number: ELRC270-22/23KZN
Commissioner: Protas Cele
Date of Award: 18 August 2023

In the ARBITRATION between

NAPTOSA obo Sharitha Pillay

(Union / Applicant)

And

Department of Education KwaZulu-Natal First Respondent
Ravin Govender Second Respondent

(Respondent)

Union / Employee’s representative : R Juguth (NAPTOSA)

Employer’s representative : S Daniso (DOE:KZN)

Second Respondent`s representative : V Naidoo (SADTU)

Details of hearing and representation

1. The matter was set down for arbitration from 6 to 7 June 2023 and 25 from to 26 July 2023 at the Department of Education No.169 Hoosen Haffajee street and No.185 Langalibalele street in Pietermaritzburg.

2. The Applicant, Sharitha Pillay, appeared in person and was represented by Rishal Juguth, an official from NAPTOSA, who produced a bundle of documents which was marked bundle B(B1-10) and called one witness.

3. Sinethemba Daniso appeared on behalf of the first Respondent, the Department of Education KwaZulu–Natal and Vishnu Naidoo, an official from SADTU represented the second Respondent, Ravin Govender.

4. Daniso and Vishnu presented a common bundle of documents which was marked bundle A(A1-59) and led the evidence of two witnesses who testified on behalf of the first and the second Respondents respectively.

5. The proceedings were conducted in English and digitally recorded. The parties were directed to file their heads of argument on or before 2 August 2023.

Issue(s) to be decided
6. I must decide whether or not the first Respondent perpetrated an unfair labour practice against the Applicant by not short-listing her for a promotion process of principalship.

Background to the dispute
7. The Applicant and the second Respondent are both educators at Kharina Secondary School which is under uMgungundlovu district.

8. During July 2021 the first Respondent advertised a post of principalship at the school (Kharina) under HRM 35 of 2021 post no.1526.

9. Both the Applicant and the second Respondent were applicants for the position. Five candidates were short-listed including the second Respondent but the Applicant was not shortlisted. The second Respondent `was appointed to the post after the process.

10. The Applicant was aggrieved and lodged a dispute at the ELRC contending that she was the best candidate for the post and that the first Respondent perpetrated an unfair labour practice by failing to shortlist her.

11. The relief that she asked for at the arbitration hearing is for the process to be redone from the shortlisting.
12. The first and the second Respondents disputed that the Applicant was the best candidate for the post and contended that the shortlisting process was fair and asked for the case to be dismissed.

Survey of evidence and argument.
Applicant`s evidence

13. Sharitha testified on her own behalf and stated that she has matric, a Junior Secondary Education Diploma, a further Diploma in Education (Computer literacy) and passed the UNISA examinations in the study units for which credit was granted in partial completion of the B Com degree.

14. She commenced her teaching career in 1984 and at the time of the advertisement of the post she had thirty seven (37) years of teaching experience. She started teaching at Kharina Secondary School on 1 January 2007 and at the time of the advertisement she had fifteeen (15) years experience at the school.

15. She submitted a CV (B8-10) as part of her application for Post No.1526 but she was not short-listed. She is familiar with the scoring members whose names appear in the minutes of the short-listing process. T Pillay was an educator at Kharina, M. Ramlakan was also an educator at Kharina, N. Alli was treasurer of the School Governing Body (SGB) and H. Zulu was the chairperson of the SGB (A13).

16. The minutes do not reflect whether the members of the interview committee (IC) indicated whether they are familiar with any applicant or not, although they were familiar with her and would have been familiar with the second Respondent.

17. The minutes also do not make specific indication as to how the CV`s would be scored. She currently holds the position of Departmental Head of Commerce. Previously she acted as a Deputy Principal for thirteen (13) months and also deputized for the principal. Prior to that she acted for a period of two weeks in 2007.

18. She is aware that the second Respondent acted in the same capacity at the school. He acted as a Deputy Principal from 1 February 2021 until the appointment was made in December 2021.

19. On Z83 (A2 F and A4 par 1.15) the information on his work experience however does not correlate with actual experience and this would have misled the interview Committee.

20. During cross-examination by Daniso on behalf of the first Respondent she stated that seven (7) years of experience is considered for the short-listing of candidates for the past of principalship.

21. When it was put to her that her Union Representative stated that it is common cause that all the candidates met the minimum requirements, including her and the second Respondent, she stated that presumably they all did.

22. She did not dispute that according to the minutes, a representative from her Union was present during the short-listing process and conceded that she is not aware of the criteria that was set by the interview committee..

23. When it was further put to her that in terms of the minutes the criteria was discussed and that her Union representative (Rishal) stated that the document (A11-12) is the criteria that is used for these processes, she stated that it was not presented to her and also that it is a guideline.

24. During cross-examination by Vishnu on behalf of the second Respondent she confirmed that her CV was scored and that her CV as well as the second Respondent`s were verified at the school by the same acting principal, L. Pillay (A32 and B2).

25. When it was put to her that her representative tried to discredit the second Respondent`s experience and she was then referred to his CV (A3 par 1.12), she conceded that the second Respondent`s permanent post was that of an Head of Department (“HOD”).

26. She did not dispute that in terms of Resolution 11 of 1997 (A6-7) if there were anomylies in the second Respondent`s CV his application would have been eliminated during the sifting process.

27. She also confirmed that she does not have any direct relationship with the five (5) scoring members listed in the minutes and did not dispute that in terms of HRM Circular No.35 of 2021 the purpose is to declare if the members have a direct relationship with an applicant(s).

28. She admitted that her name is included in the list of applicants whose CVs were scored and ranked (A14). When it was put to her that the ineterview commitee does not look at the names when scoring CV’s because in terms of the criteria the CV’s are blocked and numbered, she stated that she is not aware.

29. She confirmed that the second Respondent`s CV no.6 was scored and ranked No.1 and that the score was 34.60. Her CV No.2 was scored and ranked No.9, and the score was 25.00. and that in terms of the HRM 35 the top five candidates are shortlisted (A14).
30. When she was asked about the role of a representative in the process she stated that it is to observe to ensure that the process is fair. She conceded that her Union Representative in the process signed all the documents confirming that the process was fair.

31. She did not dispute that HRM 35 entitles Union observers to intervene if they deem that there is a deviation from the procedures agreed upon and to bring any substantive unfairness or procedural irregularities to the attention of the interview committee, and further that the circular also makes provision for their recusal on any issue in which the members have a personal interest (A27-28).

32. She admitted that her Union did not bring it to her attention at any stage that there were any issues that they needed to take up regarding the process itself.

Respondents` evidence
First Respondent`s evidence

33. Lungisani Mhlophe testified that he is the Principal of Copesville Primary School, a position he has occupied since his appointment to the post in 2008.

34. He was appointed as a resource person in the short-listing and interview process conducted under HRM Circular No.35 of 2021 for post No.1526 of principalship at Kharina Secondary School

35. It was not the first time and he has lost count of the number of posts in respect of which he was appointed in the same capacity.

36. His role was to assist the SGB and the first Respondent to appoint the right candidate by ensuring that regulations set out in HRM circular 35 were followed and that the process of the interview committee was properly done (A25). He also assisted the interview commitee with training in terms of Resolution 11 of 1997.

37. He explained that on the first day of the meeting with the interview commitee they make sure that they go through the minutes of the SGB to ensure that they have the right commitee. They also work on the management plan to ensure that the IC knows what needs to be done as well as checking the expertise of the panel (A25).

38. The Unions were invited and were on board throughout the process. They came in numbers because of the interest in the position. Representatives were from SADTU and NAPTOSA among others.

39. No Union raised any unprocedural fairness in dealing with the process. Iinstead they all signed the documentation confirming that the process was fair.
40. Resolution 11 of 1997 was used as a criteria for the process. The details of the school and the candidates were covered and the CV’s were numbered and they worked with CV’s in batches of 8.

41. Normally if there is a discrepancy on the scoring e.g. under leadership, a discussion takes place, agreement reached and the correction is done. When blocking the CV’s they cut a piece of paper and staple it on top of the details of the school and the candidate and work on the CV which is their point of focus.

42. All the CV’s were subjected to the short-listing process and the top five were short-listed. The Applicant was not amongst the top five since she was ranked No.9.

43. There was no CV that was taken lightly. Each CV was given the recognition it deserved and it was his duty to ensure that every CV was given time for scoring. Not even a single Union raised any issue or objected hence they all signed confirming that the process was fair.

44. He also stated that there was no indication by the Applicant in her application that she had acted for more than twelve (12) months. Otherwise they would have an obligation to include her.

45. During cross-examination he stated that he was appointed by the first Respondent as a resource person and confirmed that his school is in the same circuit as Kharina Secondary School. He is satisfied that the minutes of the shortlisting process are a true reflection of what transpired.

46. He was not familiar with the interview members except one or two because of the profession. He was happy with the experience and expertise of the panel members. He also trained the commitee before the process.

47. When he was asked if the comittee declared whether they were familiar with any of the Applicants considering that two commitee members were educators from the same school he stated that a declaration is made if there is a relationship which may affect one’s judgement.

48. When he was also asked if the Resolution makes provision to avoid incorrect scoring he stated that the process is not mechanical, if there are discrepancies they discuss about them. He denied that there was a deliberate attempt to underscore the Applicant`s CV.

49. During re-examination he stated that nothing precludes educators to be part of the selection process and the procedure manual allows for educators to be co-opted in the process.


Second Respondent`s witness
50. Neil Tommy testified that he was deployed by the branch Secretory of SADTU to be an observer and that he was part of the entire process.

51. His role was guided by the procedure manual (A26 par 14 and A27 par 15.1 – 15.7) and the process was free and fair and they all signed documents in this regard.

52. Everyone worked in terms of the Resolution and where there was a variance or discrepancies they discussed about that and settled them. He corroborated the evidence of Lungisani Mhlophe with regards to the minutes as a true reflection of what transpired.

53. The commitee complied with all the requirements set out in HRM Circular No.35 of 2021 (A21 par 8.1) regarding the short-listing process. No candidate indicated that he/she had acted for twelve months and more and no commitee member acted outside of their mandate.

54. During cross-examination he confirmed that the chairperson and the resource person made a brief background in unpacking the criteria and referred to Resolution 11 which assisted everyone.

55. He admitted that there were two educators on the commitee who were from the same school and stated that the minutes indicate why they were on the committee.

56. He also stated that the representative from NAPTOSA was sitting next to him and that as observers they also scored outside the process on similarities between the Applicant and the second Respondent.

57. He disputed that the commitee deliberately underscored the CV of the Applicant and ranked her No. 9 in order for her not to be short-listed.

Closing Arguments
Applicant`s Argument

58. Rishal argued that the Applicant adequately demonstrated that she met and exceeded all the minimum requirements for the post. That although being the most suitable candidate as per her qualifications, experience and expertise, she was not short-listed.

59. He further argued that there was an array of procedural irregularities and substantive unfairness that was clearly apparent in the proceedings.

60. There was a deliberate move to underscore her and therefore she should be afforded the right to contest the process from its inception or alternatively she should be given a “protected promotion” to the title of Principalship from the date of appointment of the approved candidate with all benefits.

Respondent’s Argument

61. Daniso argued that the Applicant did not dispute that her application/CV was subjected to the short-listing process and scored.

62. Her allegations that she is the best candidate has no basis as she was not short-listed because she did not meet the necessary criteria set by the commitee.

63. She was ranked No.9 with a score of 25.00. The procedure manual stipulates that the commitee must short-list five Applicant., However, the commitee can short-list more than five applicants under certain conditions as prescribed in paragraph 8.2 of the HRM Circular No.35 of 2021. The Applicant was not covered by these conditions.

64. He further argued that the Applicant failed to demonstrate that there was a conduct that denied her a fair opportunity to compete for the post or conduct that was arbitrary or motivated by an unacceptable reason. It is in this regard that the tribunal must dismiss the case.

Analysis of evidence and argument

65. In terms of section 186(2) (a) of the Labour Relations Act 66 of 1995, as amended, unfair labour practice means any unfair act or omission that arises between an employer and an employee, and in the context of the present case, involving unfair conduct by the employer relating to the promotion of an employee.

66. In Buffalo City Public FET College v CCMA and Others, the Court held that in unfair labour practice disputes, particularly in those relating to promotions, the onus is on the employee to prove that he/she is a suitable and better candidate for the position in question.

67. In the present case I duly considered all the evidence presented and the material property before me. I also took into account all the material and relevant facts placed before me and the legal issues that arise from those facts.

68. The Respondent called two witnesses and the Applicant was her sole witness. Mhlophe and Tommy corroborated each other on material facts in their evidence and their evidence was supported by the Applicant in her evidence in many respects.
69. The evidence established that Resolution 11 of 1997 was used as the criteria for the short-listing of applicants for the post. The Resolution was used in conjunction with the procedure manual, HRM Circular no.35 of 2021

70. The Unions were invited, including NAPTOSA, and participated throughout the process. They all signed, confirming that the process was free and fair. The details of the school and the names of the applicants were blocked.

71. The Applicant`s CV No.2 was ranked No.9 with a score of 25.00. The second Respondent`s CV No.6. was ranked No.1 with a score of 34.60. Five applicants were short-listed in line with HRM Circular 35. No applicant deserved to be automatically included because none of them had indicated in their application that they had acted for a period of twelve months and more.

72. The Respondents` witnesses were forthright and consistent in their evidence and I have no reason to doubt or to reject the Respondents` version, which I have found to be more probable than that of the Applicant.

73. On the other hand the Applicant failed to demonstrate that she is the best of all the applicants, that she met all the inherent requirements of the past and that there were procedural irregularities during the process.

74. Firstly, she did not have an automatic right to be included because she had not acted for twelve months or more. Secondly, the contention that the commitee members should have made a disclosure because two educators who were from Kharina Secondary were on the commitee is not valid.

75. The Respondents` evidence, which I accept, was that according to the procedure manual educators can be co-opted in the process and that the educators were not applicants. Furthermore no evidence was presented to show that there was a personal or direct relationship between an interview commiitee member and another and/or between an IC member and an applicant for the post.

76. Thirdly, the Applicant was not present during the process and none of the individuals who participated in the process, including her own representative in the process, testified on her behalf to substantiate her claim. Also, no one from the applicants testified on her behalf to corroborate her evidence.

77. In my view the contention that she was not short-listed because there was a deliberate move to underscore her CV is based on mere conjecture and perception. In Ndlovu v CCMA, the Court held that an employee must allege and prove that the decision not to appoint was unfair.

78. Conjecture, perception, unhappiness or disappointment do not establish unfair conduct. In IMATU obo Visagie v Mogale Municipality, the court held that if the employee is challenging the process and that decision or conduct by the employer is not established by the employee, then that is the end of the matter.

79. In these circumstances it is my finding on a balance of probabilities that the first Respondent did not perpetrate an unfair labour practice against the Applicant by not short-listing her.


Award
I therefore make the following award

80. The Application is dismissed

81. I make no order as to costs.

P Cele: CCMA Commissioner