ELRC821-22-23KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN MAJUBA TVET COLLEGE
Case No ELRC 821-22-23 KZN
In the matter between
NEHAWU OBO MNDENI EVANS SITHEBE Applicant
and
DHET 1st Respondent
SADTU OBO NIKIWE NDLOVU 2nd Respondent

ARBITRATOR : AS Dorasamy
HEARD : 2 OCTOBER 2023
DATE OF AWARD : 16 OCTOBER 2023
SUMMARY : Labour Relations Act 66 of 1995 – Section 186(2) (a) - alleged unfair
conduct related to promotion
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1 This matter was set down for arbitration on various dates and on the 2 October 2023 the evidence was completed at the Majuba TVET College offices in Newcastle. This matter was under the auspices of the Education Labour Relations Council (ELRC). Mr Sakhile Mkhwanazi of NEHAWU represented Mr Mndeni Evans Sithebe (applicant), Mr Themba Mthembu represented the Department of Higher Education Majuba TVET College, (1st respondent), the second respondent, Ms Nikiwe Ndlovu (appointee) was represented by Mr Sifiso Langa of SADTU. The parties were to submit written closing arguments by the 13 October 2023. The party’s submissions and the applicable provisions of the applicable circulars relating to promotions were considered when I arrived at my decision.

THE ISSUE IN DISPUTE
2 I am required to determine whether the 1ST respondent committed any unfair labour practice in not promoting the applicant to the post in question Senior Educationt Specialist NCV Mathematical Literacy, reference CNCVML 15 and dependent thereon the appropriate relief may be determined.

THE BACKGROUND TO THE DISPUTE

3.1 The applicant applied for the post, was short-listed and interviewed for the post but was not appointed.
3.2. Ms Nikiwe Ndlovu was appointed to the post. The applicant prays that the appointment be set aside and be appointed to the post.
The respondents oppose the relief sought by the applicant.
3.3. All documents referred to had been made available to the parties at arbitration. The markings of the documents were standardised with the parties at the arbitration.

APPLICANT’S (EMPLOYEE) OPENING STATEMENT
4. The applicant applied for the post and was short listed and interviewed by the Interview Committee and believes that he suffered prejudice and seeks to be appointed to the post.

FIRST RESPONDENT’S OPENING STATEMENT
5. The first respondent contends that the application be dismissed and the second respondent remain in the post.
SECOND RESPONDENT’S OPENING STATEMENT
8. The second respondent did not render an opening statement.

SUMMARY OF EVIDENCE AND ARGUMENT
EVIDENCE ON BEHALF OF THE APPLICANT
THE SALIENT ASPECTS OF THE EVIDENCE ARE RECORDED BELOW.
MR MNDENI EVANS SITHEBE
Mr Sithebe testified to the following effect:
9. He is employed at the College from 1 March 2009. He was appointed to act as Senior Lecturer in
January 2013 for Maths Literacy and continued until 2022.
10. He was not aware of the acting policy of the College. The post became vacant and he applied and went for the interviews on the 13 September 2022. There were two unions at the interviews and Mr Masondo the HR person was part of the process but did not sign.
11. At the end of the process a new incumbent was appointed. The College closed in December. In
January 2023 he was told that somebody had been appointed to the post and he had to vacate the
post in four days. He received no other communication. He was given an appointment letter for 12
months and acted in the post before it was advertised, After January 2023 his acting allowance
was stopped.
12. He was not given transcripts. The document does not say which panel member took that notes.
The notes were created by someone and is not a true reflection of the panelist as there is no name
recorded.

Under cross-examination by the First Respondent he stated that:
13. His trade union (Nehawu) was not invited to the process. The branch secretary Ms Cele was sent the invitation by Ms Vikashani who sent the invitation to all unions.
14. He was the third best candidate and obtained a score of 50.03 %. The union representatives signed the document with the scores.

EVIDENCE ON BEHALF OF THE FIRST RESPONDENT
NTSHANGASE MUZI
The salient aspects of his testimony are recorded below.
15. He was a panellist and they agreed on the scoring. The scribe passed away. All candidates were
interviewed and ranked after the interviews. They were ranked according to their performance.
16. The proceedings were recorded on the laptop from the pool and the information was wiped out.
17. The unions were invited but NEHAWU did not attend.
18. He signed the score sheet. The recommended candidate was Ms Ndlovu and the applicant was the
third ranked candidate.
19. The documents were completed by the HR office and signed by Senior Management.

Under cross examination he stated as follows:
20. The laptop was sent to HR who returned it to the pool. The information was wiped out.
21. All laptops not in use is sent to the pool and is the property of the College and issued on the basis
of needs.
22. The scribe did not sign the document and did not score the candidates.

VIKASHANI ERRALAL
The salient aspects of her testimony are recorded below.
23. She emailed the invitation for the interview process. It was sent to Celexe@icloud and sent to the
NEHAWU address and the second email was sent to Mr Maasla.
24. She is the Head of Recruitment and Selection Process. The process was completed at the Campus and then the HR representative collated all the documents and sent it to her office. They prepare the recommended candidate and then send it to Senior Management for final approval.

Under cross examination she stated as follows.
25. Sent the invite to the union via the normal person on record.
26. The laptop was used to record the process. The written minutes were given to the applicant. The IT department attends to the laptops. It is not her duty to extract the information in the laptop.
27. The HR is not part of the interview panel and does not score or who is recommended.
28. The originals are filed at the Central office of HR.
29. She does not know why the documents are not signed but the chairperson signed the final document. There are many documents and the same scores are reflected.

CLOSING ARGUMENTS
30. The parties submitted written closing arguments that were considered in arriving at my decision. The parties must be complimented for submitting comprehensive arguments.

ANALYSIS OF EVIDENCE AND ARGUMENT
THE RELEVANT LEGAL PRINCIPLES
31. In Noonan v Safety and Sectorial Bargaining Council and Others [2012] 33 ILJ 2597 (LAC) it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice. If the employee is not denied the opportunity of competing for a post then the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.
32 It is trite law that the courts will only interfere with the employer’s decision if it is grossly unreasonable.
33. The following are recorded for completeness:
Promotion: Procedural Fairness
• Do not be overtly technical in respect of procedural irregularities
• We do not go digging to try and find points to frustrate the appointment of suitably qualified educators.
Promotion: Substantive Fairness
• Very difficult to prove
• Applicant must prove he/she was the best of ALL the candidates who applied for the post taking into account all these factors:
• Qualifications and experience as per CV’s
• Performance during interviews
• Subjective impressions made during interviews
34. The Interview Committee recommended that Ms Nikiwe Firicha Ndlovu be appointed to the post. This was done. The appointment was not arbitrary or motivated by an unacceptable reason. She was the highest scoring candidate. The decision can be rationally justified, and therefore I do not believe that there are any justifiable reasons to interfere with the decision to appoint her to the post of Senior Education Specialist NCV Mathematical Literacy Reference CNCVML15.

APPLICATION OF THE LAW TO THE FACTS
35. The promotion process of the respondent the Department of Higher Education is regulated by the Recruitment and Selection Policy and collective agreements. The stakeholders in the education sector continuously appraise the procedure manuals and where necessary amendments are effected.

36. The applicant was short listed and interviewed but was the third ranked candidate after the
interviews. There was a candidate that scored higher than him and therefore he has not submitted reasonable or sufficient grounds that the appointment of Ms Ndlovu should be set aside.
37. As a consequence of the above the application must fail.
AWARD
38.1 The application is dismissed.
38.2. The appointment of Ms Ms Nikiwe Firicha Ndlovu is hereby confirmed.

DATED AT DURBAN ON THIS 16th DAY OF OCTOBER 2023.


A S DORASAMY (ARBITRATOR)