ELRC313-23/24EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD VIRTUALLY

Case No. ELRC 313-23/24 EC

In the matter between

NAPTOSA obo NDILEKA SAZI-MAYASE Applicant

and

EASTERN CAPE DEPARTMENT OF EDUCATION First Respondent

ASAVELA MADUBELA Second Respondent

Panellist: YOLISA NDZUTA

HEARD: 9 OCTOBER 2023

DATE OF AWARD: 06 November 2023

SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) - alleged unfair conduct relating to the provision of benefits, promotion

SUMMARY: Whether the Respondent committed an unfair labour practice relating to promotion and/or appointments by excluding the Applicant during a recruitment and employment .

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The matter was set down as an arbitration to be heard before me on the 9th of October 2023. During these proceedings, the Applicant, Ms Ndileka Sazi-Mayase was represented by Mr Aaron Mhlontlo of NAPTOSA while the first Respondent, Eastern Cape Department of Education was represented by Mr Garth Jacobs. The second Respondent, Asavela Madubela was in ab sentia and regardless of the attempts made to contact him, he did not avail himself.

2. The parties confirmed receipt of the notice of set down and the only pre-liminary issue raised was that of the pre-arbitration minute. After the conclusion of the pre-arbitration minute it was concluded between the parties that there weren’t any disputes of fact that warranted the hearing of viva voce evidence and testimony.

3. The parties provided that the matter was not complicated and seeing that there was no need for testimony, both representatives requested that the matter proceed in terms clause 18 of the ELRC Constitution.

4. The applicant was directed to file their statement of case by 16 October 2023 and the respondent to file a response by the 23rd of October 2023.

THE ISSUE IN DISPUTE

5. I am required to determine whether an unfair labour practice was committed by the Respondent relating to promotion and or appointment in that whether the exclusion of the Applicant from the recruitment and employment process undertaken for the departmental head post level 2 as advertised in an open bulletin Volume 2 /2023/262 at the same school where she was employed as a post-level 1 educator.

THE BACKGROUND TO THE DISPUTE

6. In these proceedings the Applicant referred an unfair labour practice relating to promotion because a departmental head post was advertised and although she applied, she was neither shortlisted nor appointed.

7. The Applicant is employed as a post level 1 educator at Imingcangathelo Senior Secondary School within Amathole West.

8. The Applicant teaches consumer studies and has been since 2014 when it was considered as Hospitality.

9. The Respondent advertised the post of head of department within Imingcangathelo Senior Secondary School to which the Applicant expressed her interest and applied however was unsuccessful.

10. The Respondent relied on the explanation of the officials involved in shortlisting and the interview panel for reasons of the outcome.

11. The Respondent accepted that the matter did not require the hearing of evidence and may proceed under the auspices of clause 18 of the ELRC Constitution.

SURVEY OF EVIDENCE AND ARGUMENT

12. There was no viva voce evidence presented rather the parties proceeded to file a Statement of Case (with annexures) from the applicant and a Statement in Response that was filed by the first Respondent. There were no papers from the second Respondent.

13. The Applicant’s papers argued the following:

13.1 The first Respondent committed procedural irregularities in relation to the assessment of aspirant job applicants.

13.2 The first Respondent and the SGB transgressed the National guidelines for SGB elections as amended and the 2018 (PAM) Personnel Administrative Measures document as revised in 2022 September in respect of the selection process of the PAM.

13.3 The exclusion of the Applicant from the shortlist amounted to a transgression of Chapter B of the PAM document as revised in 2022 considering that the applicant had acted and taught Consumer Studies for four years six months before the recruitment per the bulletin and subsequent appoint of the second Respondent.

13.4 Furthermore the teaching of the Applicant of Consumer Studies (and Hospitality) produced good results.

13.5 When compared to the second Respondent, the Applicant was far better qualified. Similarly, the other shortlisted candidates, namely 1. Mbembe XP and 5. Dungayezi A. also did not have a qualification in Consumer Studies.

13.6 Turning to the SGB panel which conducted the recruitment process, same was not constituted properly given that there wasn’t a report from same nor were there minutes of the recruitment process undertaken.

13.7 To worsen matters, the SGB that elected the panel had not been properly constituted given that there hadn’t been SGB elections during the years of 2021/2022 and 2022/2023 in compliance with the National Guidelines to SGB elections as revised in 2018, 20 (3) (4) and South African Schools’ Act 84 of 1996, as amended, s31 ss(1) (2) (3).

13.8 What further tarnished the process is the personal involvement of the resource person in the recruitment process.

14. The Applicant’s case was disputed, and the first Respondent argued the following:

14.1 The first Respondent effected the appointment on the advice of the interview panel and the SGB.

14.2 The Applicant had not established that the cause of her failure was due to any unfair labour practice and that any noncompliance with law constituted an unfair labour practice.

14.3 For substantive unfairness to be proven by Ms Sazi-Mayase, she must also prove the causal connection between the irregularity or unfairness and the failure to promote nonetheless same evidence must be assessed in terms of the rules of evidence applicable.

14.4 The procedure followed by the employer was fair given that the Head of Department enjoys the right to employ to which the first Respondent was of the opinion that a reasonable decision was made and outcome resulted from the recruitment process.

14.5 The case of the Applicant was based on her perception and not any transgression by the first Respondent.


ANALYSIS OF THE EVIDENCE AND ARGUMENT

18. As stated above, the parties agreed to file written statement of case and a statement in response.

19. I considered the submissions.

20. Before I address the submissions made, it is important to consider the dispute as defined in case law as a guiding principal. In In Department of Justice v CCMA and Others [2004] 4 BLLR 297 (LAC) the Court held that.

“An employee who complains that the employer’s decision or conduct in not appointing him constitutes an unfair labour practice must first establish the existence of such a decision or conduct. If the decision or conduct is not established, that is the end of the matter. If that decision or conduct is proved, the enquiry into whether the conduct was unfair then can follow.”

21. Furthermore, it is important to note what was in dispute as per the pre-arbitration minute.

22. The applicant’s case is premised on her exclusion from the shortlisting wherein there was an expectation thereof.

23. More important in this matter is the question whether the expectation was legitimate not and whether there was a nexus between any transgression by the first Respondent in the process and her exclusion from the shortlisted individuals.

24. The Applicant’s case legitimate reliance stems from the legal requirement as per the PAM document. The applicant goes on to argue that the entire recruitment process was illegitimate on the basis of noncompliance with statutory directions by the SGB and the panel. Lastly the applicant argues that even if there was compliance with the PAM and the SGB was legitimately constituted, the Applicant argues that when compared to the shortlisted individuals she was far better.

25. The Respondent’s case is premised on the Head of Department’s authority and the independence afforded to a SGB. The respondent then argues the onus of an Applicant to establish the substantive unfairness in such disputes.

26. The applicant relied on SAPS v Safety and Security Sectoral Bargaining Council, Robertson NO and Noonan (unreported Labour Court judgement Cheadle AJ, Case Number P426/08, dated 27 October 2010); Ngcobo v Standard Bank of South Africa and Others (D439/12) [2013] ZALD 33 (25 September 2013), which addressed the onus of establishing a nexus between irregular conduct in recruitment and the unfair conduct experienced by an Applicant.

27. The above case places an obligation on an Applicant and rules that once same nexus is established, the onus transfers to the employer to dispel whether or not there was irregular conduct.

28. The Applicant contended there are several examples of irregularity which same irregularity has not been properly opposed by neither Respondent. Granted the first Respondent reminded this council of the applicants onus as per University of Cape Town v Auf der Heyde (2001) (CA11/00) (2001) ZALAC 5 ( 4January 2001) but it has been exhibited by the Applicant that same onus has been addressed and as such the first Respondent could not justify the irregularity.

29. It is evident that the Applicant’s exclusion was resultant of the irregularities more so the shortlisting in transgression of the PAM. The first Respondent did argue Provincial Administration Western Cape (Department of Health & Social Services) v Bikwani & others (2002) 23 ILJ 761 (LC) wherein the Labour Court reminded us of the court’s averseness to interfere with an employer’s prerogative in the selection and appointment process however in these circumstances, given the glaring transgression an impartial and resolutive interference is warranted.

30. Considering that the employer not only transgressed statute but also sought to justify shortlisting of less qualified individuals (as this was not disputed), it stands that there was unfair conduct against the Applicant and that same constitutes unfair labour practice.

31. A further question is the relief sought in this instance, section 193(4) of the Labour Relations Act 66 of 1995 in this regard places the parameter of reasonable in this regard. Reasonableness requires an objective analysis of the facts juxtaposed to the relief sought by the Applicant. The applicant in this matter seeks that she be given an equal opportunity to compete in the recruitment process.

32. In the premise of the above, I make the following award.

AWARD

33. The Applicant has proven that an unfair labour practice was committed against her by the first Respondent relating to promotion.

34. I herein direct that the appointment of the second Respondent be set aside and the recruitment process in response to bulletin Volume 2 /2023/262 for the departmental head post level 2 run afresh.

Yolisa Ndzuta
Panelist: ELRC