ELRC103 -20/21KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT PIETERMARITZBURG, KWAZULU-NATAL
CASE NO: ELRC 103 -20/21 KZN
In the matter between:
NATU obo TB MJIYAKHO APPLICANT
(Employee)

and

DEPARTMENT OF EDUCATION KWAZULU - NATAL FIRST RESPONDENT
(Employer)

M. M NDEBELE SECOND RESPONDENT
(Employee)


ARBITRATION AWARD

Details of Hearing and Representation

1. This arbitration hearing took place over three days and was finalized on 08 August 2023, at Advocate’s Chamber, 17 Prince Edward Street, Pietermaritzburg, KwaZulu-Natal.
2. Mr N Mtolo from the Union NATU represented the applicant. Mr ME Mabaso, from employee relations, represented the first respondent and Mr LN Mseleku, an official from the union SADTU, represented the second respondent.

3. The hearing was digitally recorded.

4. The representatives made an application to submit closing arguments in writing on or before 22 August 2023, which I granted. The closing arguments were timeously received.

5. I marked the applicant’s bundles of documents bundle “A” and “A1”, and the first respondent’s bundle of documents, bundle “B”.

6. The pre-arbitration minute concluded between the parties on 14 September 2021 is included in bundle “B” .

Issue in dispute

7. Paragraph 4 of the minute stipulates that I must decide; “Whether the first respondent committed an unfair labour practice when appointing the second respondent.”


Background to the dispute

8. The applicant is a Deputy Principal based at the Sihlengeni Combined Secondary School, Vryhied District, KwaZulu-Natal. He applied for the post of Principal of Kwanotshelwa Secondary School, Post Number 1444 (the post); advertised in terms of Human Resources Management Circular 36/2019 (HRMC 36/2019).

9. The applicant and four other candidates were shortlisted and invited to be interviewed for the post, which interviews were scheduled on 16 December 2020.

10. The applicant did not attend the interview process due to unforeseen circumstances. The Interview Committee (IC) finalized the interviews of the four other candidates who did attend. The second respondent was ranked on the recommended candidates list (EHR 11 Form) , as the number one candidate.

11. The applicant lodged a grievance with the department. On 8 February 2021, the Grievance Committee issued a ruling, correctly so, that the applicant must be interviewed for the post by no later than 19 February 2021.

12. The applicant’s second interview was scheduled for 17 February 2021. The applicant attended but refused to answer the first question posed to him until a letter that he wanted to hand to the IC was accepted and read. The IC refused to read the letter before the applicant ‘s interview was finalized. The interview did not proceed past that point.

13. The second respondent was appointed to the post and assumed duty on 01 April 2021.

14. The applicant consequently referred a dispute to the ELRC alleging that he was the victim of an unfair labour practice. The dispute remained unresolved at conciliation and was referred to arbitration, before me.

Preliminary Issue

15. On 14 March 2023 the applicant’s representative, Mtolo, objected to the admission of the Minutes of the Interview Committee of the 17 February 2021 (the minutes) as evidence.

16. He alleged that the minutes were not the original minutes. The minutes were hearsay documentary evidence. The original minutes were handwritten in an exercise book and only later typed. It is possible, so it was argued, that the minutes were altered and therefore not a true reflection of what transpired in the applicant’s interview process.

17. I directed the respondent’s representative to make a written application for the admission of the minutes. A substantive application, on affidavit, was received by me on 25 March 2023.

18. When the arbitration reconvened on 3 July 2023, I issued in terms of Section 3(1)(b) of the Law of Evidence Amendment Act , a ruling provisionally admitting the minutes. Mabaso confirmed that he intended to call the secretary of the IC, the author of the minutes, who would testify to its authenticity.

19. Moreover, the dispute revolves around what transpired in the applicant’s interview. I found that it was otherwise in the interests of justice to provisionally admit the minutes.

20. Mncwango, the secretary of the interview committee, testified that she typed the minutes on her laptop. She thereafter transferred the typed version onto the school’s letterhead. Whilst the minutes are not verbatim, they recorded the essence of the discussion and events. The minutes were approved and signed by the chairperson.

21. Her evidence was not seriously challenged. No reason or motive was established as to why she would alter the minutes. The applicant likewise relied on the minutes as a broad record of what transpired. The complaint was that it omitted certain important aspects. The minutes however contain a record of what was said and done from the time that the applicant was ushered into the interview venue until he left the venue. It is trite that a party cannot approbate and reprobate documentary evidence.

22. I find, for the reasons aforesaid, that the minutes are authentic and a proper copy of the original version.


Analysis of evidence and argument


23. The facts of this matter appear from the analysis that follows.

24. It is trite law that an arbitrator must determine an unfair labour practice dispute in terms of Section 186(2)(a) of the Labour Relations Act (the LRA). That section provides that;
“An unfair labour practice is any unfair conduct that an employee has suffered relating to appointment, promotion training or benefits.”

25. The pre-arbitration minute does not specify the unfair conduct the applicant complains about. The facts in dispute simply restate that, “the first respondent committed an unfair labour practice when appointing the second respondent”. The requirement that the dispute be narrowed and defined by the parties by specifying the facts in the dispute was ignored. Simply restating the issue in dispute, in my view, defeats the object and purpose of a pre-arbitration minute.

26. I am therefore constrained to extract from the evidence, the main facts in dispute, in conjunction with the closing arguments, as follows:


26.1 Whether the applicant was entitled to stipulate any “condition precedent” to his interview.

26.2 Whether the applicant’s concern was reasonable and therefore valid.


26.3 Whether the interview committee undertook to reschedule the applicant’s interview.

26.4 Whether the second respondent’s appointment was, in light of my determination on the three factual disputes above, unfair to the applicant.

27. The applicant seeks the relief that the appointment of the second respondent is set aside and that the selection process is redone from the interview stage.

28. The applicant testified and called one other witness namely, SC Masondo (Masondo), his union representative.

29. The first respondent called four witnesses. These were Mr.MD Nkosi (Nkosi), the principal of Sihlengeni School. G Mncwango (Mncwango), the secretary of the Interview Committee. HC Ntanzi (Ntanzi), the Resource Person for the selection process, and MP Khumalo (Khumalo), the Chairperson of the IC. The second respondent did not testify, nor did he call any witnesses.

30. I turn to determine, individually, the factual disputes identified above.

The applicant’s “condition precedent”

31. It is common cause that the applicant’s interview commenced but that he declined to answer questions until a letter that he had in his possession was read by the interview committee.

32. The committee was surprised by this turn of events. The applicant’s request or condition was not one that an interview committee would generally encounter. This was not a request for a glass of water; an opportunity to visit the ablution facilities or any of the typical requests that an interviewee would make.

33. Khumalo, after caucusing in camera, with the IC, informed the applicant that his letter would be read after his interview was completed. The applicant persisted with his request/demand. Several ancillary disputes arose concerning subsequent events. Lengthy evidence was led on these aspects to no avail.

34. These were, inter alia, whether the interview committee engaged in multiple caucuses in the presence of the applicant and in camera; the number of times that the applicant was excused; who on the IC believed that the applicant’s letter should be read, the fact that the circuit manager was consulted on the way forward and who consulted him; are all issues that did not prove any unfair conduct on the part of the interview committee, nor did the applicant allege that to be the case.

35. Section 138 (7) of the LRA requires me to provide brief reasons for my award. The crisp question is whether the applicant was entitled to make the request or demand that he did. The applicant maintained that his was a request and not a demand. He however eventually conceded that his conduct, “caused his interview not to continue”.

36. The applicant’s request, it later emerged, related to whether he was eligible to be appointed to the post. It is trite, that interview processes are prone to procedural and substantive challenges. To minimize these the first respondent formulates procedure manuals to govern each selection process. These Human Resource Management Circulars, in this instance HRMC 36 of 2019, are prescriptive.

37. No allowance is made for the individual process request or preference of an interviewee. Whether an interview is conducted in the public or private sector those requests, which result in a deviation from the prescribed process, should not be entertained. The obvious reason is that it would be open to challenge on the basis that the process was either procedurally or substantively unfair.

38. The applicant, it must be restated, conceded that his request resulted in his interview ending. The applicant’s representative likewise conceded that their conduct ended the applicant’s interview, without the applicant’s candidacy being scored or assessed. It was therefore not in dispute that the applicant and his representative were ultimately responsible for the applicant’s interview ending when it did.

39. Neither the applicant nor his representative was entitled to request or demand any treatment from the interview committee that was not afforded to any of the other candidates. I find that the applicant was not entitled to impose any condition on or make any unusual request to the interview committee before his interview was completed.

40. I find for these reasons that the interview committee’s decision not to accept or read the applicant’s letter was procedurally correct.

Whether the applicant’s concern was valid.

41. The interview committee was not privy to the contents of the applicant’s letter. The letter was not submitted as evidence. The applicant did not take the arbitration into his confidence by discovering the letter.

42. It later emerged that the applicant did not want his interview to proceed whilst certain allegations of misconduct which were levelled against him, relating to the post in dispute, remained unresolved. These allegations arose under the following circumstances.

43. The applicant was sent three letters during the period from March to July 2020. The last letter was served to him on 2 July 2020. The letters state that he is being investigated for alleged misconduct relating to post-corruption and post-fixing. In the final letter dated 2 July 2020, he is invited to an investigation hearing to be held on 3 July 2020.

44. The applicant did not attend. He informed the department in his letter of reply dated 2 July 2020 that he could not attend because he was given late notice and needed to arrange representation. The hearing was an investigation hearing to determine, in all probability, whether the applicant should be charged. No evidence was led by either party regarding the further progress of that investigation.

45. The following further facts are relevant. A period of approximately eleven months lapsed from 18 March 2020, the date of the first proposed investigation hearing , to the applicant’s second interview on 17 February 2021 . He was not charged with misconduct during that period. The applicant had ample opportunity to approach the department and ascertain the status of the investigation. He did not claim that he had made any such inquiry or other effort to clear his name.

46. It was argued, in effect, that the applicant was shrouded under a cloud of suspicion because the investigation was not finalized. That investigation, it was argued, relating to his alleged involvement in corruption, disqualified him from being appointed to the post. The legal provision relied upon, Section 6(3)(b) of the Employment of Educators Act, reads as follows:

Section 6(3)(b)

In considering the applications, the governing body, or the council, as the case may be, must ensure that the principles of equity, redress, and representativity are complied with and the governing body or council, as the case may be, must adhere to –
(i) the democratic values . . . .
(v) procedures that would ensure that the recommendation is not obtained through undue influence on the members of the governing body.

47. The applicant’s representative argued,“ That conduct is when the applicant is charged with having colluded or has obtained the post through undue influence on the School Governing Body. This is a specific form of misconduct which the Act identifies as being a barrier or bar to appointment.” This argument is misdirected for several reasons.

48. In the first instance, the applicant was not charged with collusion or any other form of misconduct relating to the post in dispute. The letters sent to the applicant refer to allegations of misconduct ; involvement in post corruption and a post-fixing plot . The applicant in his letter of reply also refers to allegations of misconduct .

49. Secondly, it is unclear on what basis the applicant could be accused of obtaining the post through undue influence on the SGB. It is also unclear how the unresolved allegations against him would unduly influence members of the governing body to recommend him for the post. It is more probable that the governing body would not recommend him.

50. The argument presupposes that the applicant would be recommended for appointment. Let us assume for illustration purposes that he was. The Head of Department must thereafter determine whether he is a suitable candidate for appointment. A recommendation for an appointment does not result in an automatic appointment.

51. The inescapable fact is that the applicant was never charged with any misconduct relating to the post. The applicant, despite the protracted investigation, made no inquiries with the first respondent about clearing his name. He did not lodge a grievance; he did not decline the invitation to attend the interview nor did he take any other steps to ensure that his name was cleared before his interview.

52. He instead expected the selection process to grind to a halt at his request (or demand) until he obtained clarity on whether the allegations of misconduct precluded him from appointment to the post. The entire argument I reiterate presupposes that the applicant, if he had completed his interview on 17 February 2021, would have been recommended for appointment.

53. The applicant further alleged that if he had been recommended, he would have been prevented by Section 6(3)(b)(v) from taking up the appointment. Simply stated the applicant wanted his interview to be suspended pending clarity from the IC on whether he would be precluded from taking up his appointment. The obvious answer to the applicant’s dilemma was to undergo the interview and thereafter challenge the process on whatever basis legally permissible; if he was not appointed.

54. It is difficult to understand how the applicant expected the entire process to be suspended on the mere hypothesis that he would be recommended for appointment to the post.

55. I have no hesitation in finding that the applicant’s expectation was unreasonable and therefore invalid.


Whether the interview committee undertook to reschedule the applicant’s interview.

56. The applicant alleged that the chairperson excused him from the process and gave him an undertaking that he would be recalled for an interview. The chairperson categorically denied this.

57. The parties have presented mutually conflicting versions. In Stellenbosch Farmers’ Winery Group Ltd and another v Martell et Cie and others, the SCA held that a decision maker must make findings on the credibility of the various factual witnesses, their reliability, and the probabilities to determine which version is true. When all factors are equipoised probabilities prevail. The question that must be asked is whether the probabilities favour the version of the claimant.


58. Ntanzi testified that after the interview committee took the decision not to read his letter, the applicant was uncertain about whether to proceed with his interview. He then and after the intervention of Masondo requested that he be excused. The Chairperson responded that he must decide whether or not to excuse himself from the process. The applicant left the venue. Ntanzi’s version was also not seriously challenged.

59. Finally, the minutes of the applicant’s interview do not confirm the alleged undertaking. The applicant was given two opportunities to be interviewed. He was unable to attend his first interview and was therefore given on good cause shown, a second opportunity to be interviewed. He of his own accord abandoned this interview. His candidacy was neither scored nor assessed. The second respondent had in the interim been acting in the post for approximately two years.

60. In the matter of Noonan v SSSBC & Others, the Labour Appeal Court confirmed that there is no right to promotion. Candidates only have the right to be given a fair opportunity to compete for a particular post. If a candidate has been given that opportunity, as the applicant in this matter was the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. So long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying interference with the decision.

61. I find, on a balance of probability, that neither the chairperson nor any other member of the interview committee gave the applicant an undertaking to recall him for an interview.

Whether the second respondent’s appointment was unfair to the applicant.

62. The applicant did not allege that he was the most suitable candidate for the post and that he would have been promoted thereto had he been given a further opportunity to be interviewed.

63. The applicant and the second respondent were shortlisted and both were given an equal opportunity to compete for promotion. The second respondent was assessed and scored the highest number of points whilst the applicant was not assessed due to his conduct. The second respondent was ranked as the first preferred candidate while the applicant, logically so, does not appear on the ranking list.


64. The onus in a promotion dispute is on the applicant to prove that he or she is the best candidate for the post. The applicant was required to demonstrate that the second respondent’s appointment was arbitrary or motivated by some unacceptable reason. The applicant alleged that his own appointment, if made, would have been in contravention of Section 6(3)(b)(v) of the Employment of Educators Act.

65. He did not allege that the second respondent’s appointment was a contravention of that prescript or that the second respondent had unduly influenced the SGB to recommend him for the post. It is trite that a candidate who scores the highest points must be recommended by the panel. A failure to comply with the rules may result in substantive unfairness.

66. In the final analysis, the onus to prove that the selection process was substantively unfair rested with the applicant. It was incumbent upon him to prove that the process was beset with irrationality or unreasonableness on the part of the interview committee. There is no evidence before me proving that.

67. I therefore find that the applicant has failed to discharge the onus on him to prove the alleged unfairness.


AWARD

I accordingly make the following award:


(a) The application is dismissed.

20 September 2023

ELRC DATE
Senior Panelist
Adv. Anashrin Pillay