ELRC855-20/21KZN

Arbitrator: J.D. Vedan
Case Reference No.: ELRC855-20/21KZN
Date of hearing: 5 October 2023


In the arbitration between:

PSA o.b.o. Dr Virendra Maharaj Applicant/Employee party
and

Department of Education – KwaZulu-Natal First Respondent/Employer party

and
Dr Pushpagandhi Gramanie Second Respondent/Joinder party


Applicant’s representative: Mr I Mooloo


First Respondent’s representative: Mr I. Makhooe


Second Respondent’s representative: Ms I Dhanook


DETAILS OF HEARING AND REPRESENTATION

1. The matter was held virtually via Zoom on 25 October 2021, 1 August 2022, 2 August 2022 and concluded on 5 October 2023.

2. The Applicant was represented by Mr I. Mooloo, a Union Official.

3. The First Respondent was represented by Mr I. Makhooe, its representative.

4. The Second Respondent was represented by Ms I. Dhanook, a Union Official.

5. The parties agreed to submit written closing arguments by 12 October 2023.

BACKGROUND TO THE DISPUTE

6. The Applicant is a highly qualified person, having worked at the KwaZulu-Natal Department of Education since 25 August 1998, and having acquired further University degrees and diplomas, and having obtained a Master of Business Administration Cum Laude, and also a Doctorate in education.

7. He served as the Deputy Chief Education Specialist, level 6, at the Pinetown District office in its examinations and assessment section, and served in the position until 30 June 2015.

8. Thereafter he served as the Chief Education Specialist: Examinations and Assessments until he became a Deputy Chief Education Specialist.

9. The post was advertised on 27 July 2020 for a Chief Education Specialist: Examinations and Assessments, and he applied for the post, and it would seem that he was confident that he would obtain the post due to his experience and qualifications. In his view he met all the requirements. There were six posts advertised for the Chief Education Specialist.


10. However he did not get the post, and instead was ranked third after the successful candidate being the Second Respondent, Dr Pushpagandhi Gramanie, and a Mr Subroyen.


11. He is of the belief that none of the other candidates possessed the extensive experience he has in examination, administration and management at a district level, and that he answered all the questions put to him at the interview extremely competently.

12. His complaints were that firstly the short listing panel excluded candidates who were functioning in the exam environment, and could fulfill the criteria. He stated that the panel did not apply it's mind to his candidature given his vast experience. His further complaint was that the First Respondent acted arbitrarily, unfairly, unreasonably, inconsistently, and irrationally both procedurally and substantively.

13. The Applicant at first requested to be promoted to the post of Chief Education Specialist where there would be a position in the provincial examinations component. He wanted re-instatement retrospectively with full remuneration and benefits.

14. According to the First Respondent, the Interview Committee was competent, and undertook the interview with due diligence. The panel comprised of three members, who were Directors from the district, and the Acting Director from the Pinetown District was involved directly. The process was observed by two Trade Union representatives. All the documents were signed attesting to the fairness and consistency of the process.

15. The First Respondent is convinced that nothing unfair took place during the process, and that the correct candidate was appointed by the Department.

16. According to the Second Respondent, her argument was that everything was in accordance with a fair procedure, and was substantively fair.

ISSUE TO BE DECIDED

17. Whether the First Respondent has committed an unfair labour practice in terms of section 186 (2) (a) of the Labor Relations Act No. 66 of 1995 relating to promotion?

SURVEY OF EVIDENCE AND ARGUMENTS:

APPLICANT’S EVIDENCE

18. The Applicant first set out his qualifications, which as stated above is fairly extensive.

19. The Applicant argued that his curriculum vitae met all the key performance areas in connection with the post. He stated that he was involved in strategy planning, analysing the environment, and understanding the internal environment.

20. He then outlined some of the innovations and improvements he made in the system while engaged in his roles, such as arranging the awards function when the Matric results were released, and making up his own manuals for the Pinetown District. He outlined various examinations that he had to deal with.

21. He also referred to an incident where he was able to procure furniture for the professional and administration staff to the value of R450 000-00. Unfortunately the Acting District Director at the time took and allocated the furniture elsewhere, and only allocated one set to the examinations section. He complained that he never received furniture in the fifteen years that he had worked in the section, whereas newly appointed Circuit Managers received furniture immediately. He felt that the Acting District Director took advantage of the situation, as he was no longer Acting Chief Education Specialist.

22. An Item of contention then became that a Mr Subroyen had been on the list of candidates nominated by the Selection Committee to obtain the post, and therefore there had been a request by the Applicant to have the documents pertaining to Mr Subroyen made available to interrogate, as he felt that he was a better candidate than Mr Subroyen.

23. Mr Subroyen, in response to a subpoena, did log on during the virtual arbitration, however he did not want to give evidence, nor disclose his documents which he held was personal to him.

24. The Applicant continued with his evidence, and thereafter testified about a certain Mrs Khubeka, who held the post of Chief Education Specialist for three months in 2010, until she was involved in some irregularity, and was removed from the examinations sub-directorate. Thereafter a Mr Masuku came in as Acting Chief Education Specialist, and worked for about three years. Apparently the Department was not happy with his performance, and he took retirement.

25. He then specified his role as Acting Chief Education Specialist. He said that he ran the examination unit for five years and ten months exactly. All five District Directors, whom he worked with, rated him well in his annual assessments, and he received performance bonuses for each of the years he had worked.

26. The Applicant thereafter spoke about a meeting that took place in September 2021, which was about the Pinetown District exams being in crisis, but thereafter it transpired that this meeting took place after the appointment of Dr Gramanie, and therefore is irrelevant to these proceedings.

27. While giving evidence, the Applicant at that stage stated that he wanted to be appointed to the post of Chief Education Specialist, and is not seeking to interfere with Dr Gramanie’s position. Therefore at that stage he stated that he wanted to be given another post as Chief Education Specialist.

28. However his representative quite correctly confirmed that the remedy I have in my power is to state that the appointment of Dr Gramanie is irregular, and to set aside the appointment. I do not have the jurisdiction to indicate that the Applicant be considered for any other post. The Applicant then agreed with this supposition.

29. The Applicant then went through the application of Mr Subroyen, and stated that he had given training to Mr Subroyen, and that Mr Subroyen’s curriculum vitae and qualifications did not match the requirements for the post of Chief Education Specialist.

30. The Applicant stated that he had trained all invigilators, including Mr Subroyen. When he looked at the scores for Mr Subroyen, he could not fathom why he got so high scores, when Mr Subroyen had zero experience in examinations. He stated that you had to be on the job to acquire experience, and the ability to answer the questions, as he had, in an exemplary manner.

31. He conceded under cross-examination that he did not observe the process when Mr Subroyen was interviewed.

32. He stated that the Union member from SADTU, of which he was a member of at that stage, was not happy with the scores as well. However the Union member had only declared a grievance after seven days, whereas it was supposed to be done at the interview, and thus his grievance could not proceed. At that stage he was a member of SADTU, However he is now a member of PSA.

33. His case was that Dr Gramanie did not qualify, as she did not meet any of the criteria listed in the advert. He also stated that more experienced people were not shortlisted, whereas Dr Gramanie and Mr Subroyen were shortlisted.

34. It would appear that prior to the interview, Dr Gramanie asked to be interviewed earlier, as she had to go to Gauteng. She had requested to be interviewed between 8:00 to 9:00 in the morning.

35. He complained that during a similar request for himself, in another application, the committee moved the interview to the next day, because he had given seven days notice, and therefore all candidates were interviewed at the same time. Whereas in this matter Dr Gramanie was interviewed before the other candidates, and she had met with the Chairperson before the interview.

36. He stated that at the Pinetown District no Examination Specialist was on the panel, and blamed his plight on the incompetence of the panel. He asserted that it was a requirement for an Examination Specialist to sit on the panel, as this was the policy of the Department.

37. Reference was made to a letter written by Ms P K Hadebe, the District Director. He stated that he had written the letter on behalf of Ms Hadebe, which was a recommendation letter for himself. He stated that the letter given by Ms Hadebe was like a glowing report of himself, and that she was part of the Interview Committee that had interviewed himself. He stated that the letter was attached to his curriculum vitae.

38. He conceded that it was possible that Dr Gramanie had prepared well for the interview.

39. When questioned by the Commissioner, he stated that Head Office would have set up the Interview Committee, and selected the panelists.

40. To the best of his knowledge, the Interview Committee had formulated the questions, and he agreed that they were good questions. He also believed that they could have consulted examination experts to formulate the questions.

41. The Applicant stated that he has reverted to Deputy Chief Education Specialist.

FIRST RESPONDENT’S EVIDENCE

42. The First Respondent called the Second Respondent, Dr Pushpagandhi Gramanie to testify.

43. She stated that she is currently working at the Pinetown District office as the Chief Education Specialist: examinations since she was appointed on 1 March 2021. There had been several examinations since she took over the post, and that is the common tests, the May/June examination, trial examination, end of year exams and NSC exams. This was in the year 2021. In 2022 she had also overseen the first term common test and the May/June exams.

44. She stated that she had obtained her Doctorate in 2015.

45. The witness stated that she was of the view that organisational labour played a pivotal role in the interview process, as their purpose is to ensure that a fair and just process is followed, and they are there to ensure the interests of their membership is not compromised. Organised labor was invited to the interview process. Her union, which is NAPTOSA, was in attendance.


46. She stated that the advert was very clear. The requirements in terms of qualification were explicit, which would make one eligible to apply for the post. The key responsibility areas for the post are quite specific, and have to be fulfilled when one is appointed to the post. She said that it is not something that you had to do before obtaining the post.


47. She also stated that it was unfair that one had to be in the post in order to answer the questions posed by the Interview Committee. She was of the view that the Interview Committee designed questions to enable all the candidates that were shortlisted to engage with the Interview Committee, or there would have been an unfair bias on the part of the Interview Committee.


48. Dr Gramanie stated that all the questions were well within her reach, and she was able to answer them. She refuted that the Applicant was the only person who could answer the questions. She stated that any person entering an interview would prepare, and she herself, apart from her own experience, which is not just at district level, but also at Provincial, National and Umalusi level, had researched thoroughly for the interview. All the questions were within her ambit and knowledge to answer.

49. She stated that it was an unfair assumption that she was given preferential treatment, as she was treated the same way as all the other applicants.

50. She had informed the Applicant that she would be applying for the post, and stated that he had informed her that she had equal opportunity to apply just like everyone else.

51. She stated that she had experience in work that was exam related, and was deployed to go in and monitor the conduct and administration of examinations. There were specific protocols and regulations that had to be adhered to, and one had to look for suspicious behaviour amongst the learners.

52. The witness stated that she was informed that the Applicant was a Level 1 Educator, but had been appointed to the examinations section, and was in the Umlazi District.

53. Although she did not necessarily have experience at district level with regards to examinations, she had experience at Provincial and National level, and also at Department of Basic Education and Umalusi level. She stated that one did not need prior experience.

54. She stated that there was a big gap between her score and the Applicant’s score.

55. Dr Gramanie stated that she did not meet with Ms P K. Hadebe prior to the interview, nor was she given the questions for the interview.

56. At this point the Applicant stated that Ms Hadebe was to be called as a witness by the First Respondent. However the First Respondent stated that Ms Hadebe had left the department, and was unable to testify, and therefore they would call another colleague, Dr Madondo, to testify.

57. Dr Gramanie stated that she believed that she was the best performing candidate, and deserved the post.

58. At the time when she had applied for the post she was a Senior Education Specialist for Dramatic Arts, and had occupied that post since 2008. Prior to that she was a Level 1 Educator.

59. Although she was mandated to look after all the Arts in the district, she also looked after the Arts in the Province.

60. She stated that she was appointed as a Verifier initially with Umalusi, specifically for the Arts subjects, but occasionally was deployed to check on quality assurance and also compliance. Prior to this she was an external Moderator for Arts, and part of the group that does analysis, not just for one subject but across nationally.

61. She went deeply into all the duties she performed, and agreed that the duties in the main were confined to Arts. However on a district level she was also deployed to conduct examinations as a Chief Invigilator, and had to ensure compliance was reached.

62. The witness admitted that she had been trained as an Invigilator, but stated that this was not done exclusively by the Applicant every year.

63. She stated that as regards the interview, she did make an application to be interviewed earlier, as she was deployed by Umalusi to go to Gauteng as she was doing moderation for three assessment bodies. When she received the invitation for the interview, she had emailed the Secretary with her request for an earlier interview. The Secretary had reverted that the request had been approved. She did not recall how many days prior she made the request.

64. Dr Gramanie stated that she had conducted research for the interview via Google and policy documents. She disagreed that she did not have day-to-day experience. She stated that the questions asked by the Applicant’s representative were not the same as the questions asked at the interview, and stated that her performance at the interview was what was important.

65. She stated that if she did not meet the requirements she would not have been shortlisted.

66. When questioned by the Commissioner, she stated that the exam environment is not alien to her as the skills and expertise she has from other responsibilities equipped her for the position she is currently holding, and stated that she is able to do the job efficiently and effectively.

67. At this stage the Applicant had asked for a postponement to re-open his case, as he wanted to call more witnesses. The postponement was granted, however when the matter recommenced on 5th October 2023, the Applicant indicated that it was difficult to get the witnesses. The Applicant then decided to close his case due to the difficulty in obtaining the witnesses, and the First and Second Respondents also closed their cases.
ANALYSIS OF EVIDENCE AND ARGUMENTS

68. In disputes of this nature the onus lies on the Applicant to prove on a balance of probabilities that an unlawful labour practice had been perpetrated upon him.

69. According to the Applicant, the Second Respondent did not meet all the necessary requirements for the post. The main thrust of his argument was that the shortlisting of the candidates was not done properly in that candidates who were shortlisted were not competent to do the job, and other experienced candidates were left out, and furthermore that the Interview Committee was unfair.

70. However he did concede that the performance at the interview was very necessary to the appointment, as opposed to the scoring of the curriculum vitae. At this point it must be pointed out that the Applicant himself was shortlisted for the position.

71. Furthermore at the stage of the interview he was a member of SADTU, and there was an observer from SADTU present at the interview, and the SADTU observer did not raise any objections. Instead all the documents were filled in by all the parties attesting to the fact that it was correct.

72. There seems to be also inconsistency in what the Applicant is requesting as relief. At first the Applicant wanted to be placed in a position of Chief Education Specialist probably in another district, as he did not want to displace the Second Respondent. However when seeing that it was not in the prerogative of the Commissioner to award such relief, he then wanted the Second Respondents appointment to be declared unfair, and he wanted to be appointed in the position instead.

73. It seems odd that none of the candidates who should have been shortlisted, as the Applicant asserted, did not lodge a grievance with the Department, nor have they lodged a dispute with the ELRC.

74. Furthermore Mr Subroyen, who was the second highest scored candidate, did not deem it fit to lodge a dispute either. It seems that he abides by the decision of the department.

75. An analysis of the expectations or requirements for the post shows clearly that there was no need for any experience in examination management in order to obtain the post. The advert only sets out what the key responsibility areas are once the person is appointed, and in effect outlines the duties of Chief Education Specialist: Examinations and Assessments.

76. With regards to the letter of reference, which was unsigned, it appears to be irregular because Ms P K Hadebe was in fact the Chairperson of the Interview Committee. Furthermore Ms Hadebe was not available to attest to its contents.

77. It is not within the scope of my duties as an Arbitrator to interfere with the scores. The Interview Committee is in the best position to assess the candidates based on the answers to the questions posed, and it would depend on the performance of the candidates on that day.

78. There was no evidence to suggest that Dr Gramanie had the questions, and the assertion that she spoke to Ms Hadebe prior to the interview is just made by the Applicant with no corroborating evidence.

79. The fact that a person is in an acting position does not guarantee him the right to the post. Otherwise the post would not have been advertised and candidates called upon to apply for the post.

80. Another further complaint about the composition of the Interview Committee does not appear to carry much weight, as the Interview Committee was composed of very senior education practitioners, amongst which were the Directors of different districts, of which one of the Directors was his Supervisor.

81. Dr Gramanie seems to be well equipped to deal with her position. She had obtained her Doctorate in 2015, whereas the Applicant who also distinguished himself by obtaining a Doctorate, but this had only been conferred on him when the process had already been finalised.

82. Dr Gramanie appeared to have extensive experience as far as Provincial, National and Umalusi are concerned, and this would have prepared her for district exams. Furthermore she also stated that she had done extensive research in order to adequately prepare herself.

83. It would seem that the Interview Committee had undertaken a very thorough and rigorous process, as they had to interview people of a high caliber for this senior post, including Dr Gramanie, Mr Subroyen, and the Applicant himself. Furthermore the panel had to preside over five promotion posts that were contained in HRM Circular 38 of 2020.

84. The indicators are that in terms of the questions asked, Dr Gramanie had obtained score 37.32, whereas the Applicant had scored 30.98, which is a significant difference, and furthermore Mr Subroyen had obtained the second highest score.

85. With regards to the request by Dr Gramanie to be interviewed earlier, as she had to go up to Gauteng, I do not see any undue advantage given to her in this respect. There is no proof that she had made the request late, and she had contacted the Secretary prior to the interview, and it would seem that the panel acceded to this request.

86. In this case I am loath to interfere with management’s discretion, and I refer to the matter of Herbert and the Department of Home Affairs (1998) (Up2speed) (CCMA) wherein it was held that:

“The decision to promote an employee falls in my view with the prerogative of management. In this regard see George v Liberty Life Association of Africa (1996) 17 ILJ (IC), and Misra v Telkom (1997) 6 BLLR 794 (CCMA) with which I respectfully disagree. The comments of PAK Le Roux in Contemporary Labour Law Volume 7 no 4 page 40 are noted and reflect the correct situation.

The Labour Relations Act 1995 entitles an employee who is aggrieved because he was not promoted to challenge this in view of the unfair labour practice provisions of the Act. The question then is: if the decision to promote is management’s decision, when can an employee challenge this decision? Goliath v Medscheme (Pty) Ltd (1996) 5 BLLR 603 (IC) in my view provides the correct answer when dealing with decisions to promote where discrimination on prohibited grounds is not alleged, as in this case. In this case it was stated that “in the absence of gross unreasonableness which leads the court to draw an inference of mala fides, this court should be hesitant to interfere with the exercise of management’s discretion”.


87. In the final analysis, all the Applicant relies on in support of his claim that he should have been appointed is that he was the Acting Chief Education Specialist, and he had extensive experience in the job. This is not enough in itself to prove that the First Respondent acted unfairly in not appointing him, as he was shortlisted, and it would appear that he did not perform as well as the Second Respondent and Mr Subroyen during the interview phase.

FINDINGS:

88. I am therefore of the view that the First Respondent has not committed an unfair labour practice against the Applicant.

AWARD:

89. The First Respondent, the Department of Education-KwaZulu-Natal, has not committed an unfair labour practice against the Applicant, Dr Virendra Maharaj.

90. The application is dismissed.

91. There is no order as to costs.

J.D. VEDAN
ELRC Panelist