ELRC243-23/24 EC

Case Number: ELRC243-23/24 EC
Panelists: Malusi Mbuli
Date of Award: 07-11-2023

In the ARBITRATION between

NEHAWU obo NOLUNDI MBULI
(Union / Applicant)

And

DEPARTMENT OF HIGHER EDUCATION – IKHALA TVET COLLEGE
(1st Respondent)

NOMONDE MBOYI - DUBENI
(2nd Respondent)

SUMMARY: Labour Relations Act 66 of 1995 – alleged unfair labour practice relating to promotion in terms of section 186(2)(a) – whether the appointment of the 3rd respondent and non – appointment of the applicant was unfair and constitutes an unfair labour practice as contemplated in section 186(2)(a) of the LRA.

The appointment of the 2nd respondent and the non – appointment of the applicant was procedurally and substantively fair and did not constitute an unfair labour practice as contemplated by section 186 (2) (a) of the LRA.

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter came before the ELRC for arbitration in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 (promotion dispute). It was set down for arbitration hearing at the Ikhala TVET College offices in Aliwal North on 24th & 25th of October 2023 before Commissioner Malusi Mbuli.

2. The applicant Ms. Nolundi Mbuli attended the hearing and was represented by Mr. Ernest Elefu an official of the applicant’s trade union NEHAWU.

3. The 1st respondent, the Department of Higher Education – Ikhala TVET College was also present at the hearing and was represented by Ms. Phindile Makhokha an official of the respondent.

4. The 2nd respondent Mrs. Nomonde Mboyi - Dubeni was also present at the hearing and represented herself.

5. The matter was finalized on the 25th of October 2023 and the parties agreed to file their closing arguments not later than the 03rd of November 2023 and both parties filed their arguments.

ISSUE TO BE DECIDED

6. I am required to determine whether the appointment or promotion of the 2nd respondent and non-appointment of the applicant was unfair and constituted an unfair labor practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015, and if so the appropriate remedy.

BACKGROUND TO THE ISSUE

7. The applicant, Ms. Nolundi Mbuli is working for the respondent as a Senior Lecturer PL2 and she applied for the position of the Head of Department in the respondent’s institution, Department of Higher Education – Ikhala TVET College. The applicant was shortlisted and interviewed for the said position but was not appointed to the said position.

8. The interview panel recommended both the applicant and the 2nd respondent for appointment and the applicant was recommended as no 2 candidate and the 2nd respondent was recommended as no 1 candidate.

9. The recommendation was then referred to the Principal - the accounting and appointing authority and when he considered the attributes of the 2 candidates he decided to appoint the 2nd respondent. It is not disputed that the 2nd respondent met the minimum requirements of the post advertised and that further her qualification and experience were appropriate for the position in question.

10. The applicant disputes the appointment of the 2nd respondent based because she believes that she was the best candidate for the job. The Department of Higher Education – Ikhala TVET College appointed the 2nd respondent Mrs. Nomonde Mboyi – Dubeni who is now occupying the position.

11. The applicant felt that the process that led to the appointment of the 2nd respondent and her non – appointment was unfair and constituted an unfair labour practice as envisaged by section 186 (2) (a) of the LRA.

12. The applicant’s dispute is premised on procedural fairness as well as substantive fairness and the applicant’s argument is that the Department of Higher Education acted unfairly in appointing the 2nd respondent and prays, in the last paragraph of the arguments, that the applicant be granted protective promotion.

13. The applicant referred an unfair labour practice dispute to the ELRC and the matter was enrolled for arbitration and finalized on the 25th of October 2023 but the parties agreed to file their arguments not later than the 03rd of November 2023 and both parties filled their closing arguments.

SURVEY OF EVIDENCE

Applicant’s submissions.

14. The applicant Ms. Nolundi Mbuli took the witness stand and testified that she works for the respondent as a Senior Lecturer and is based at the 1st respondent’s campus in Sterkspruit. She averred that she applied for the post of the Head of Department that was advertised in October 2020 and the interviews were held early 2021 and the appointment was made in February 2021.

15. She testified that she met the minimum requirements of the job and she believe that she was the best candidate for the job but the 1st respondent appointed the 2nd respondent to the said post. She testified that she was unhappy about the outcome of the recruitment processes because she has a professional teaching qualification and the respondent does not have a teaching qualification.

16. She averred that the 2nd respondent has a Post Graduate Diploma in Educational Management. She further stated that the 2nd respondent has a 1 year post graduate qualification and confirmed that that the 2nd respondent has a SACE certificate which is awarded to Educators. She further confirmed that the 2nd respondent is an educator.

17. The applicant’s representative then closed their case and the respondent’s representative then called their 1st witness Mr. Mqondisi Bikitsha who testified that he is the Acting Principal of Ikhala TVET College and his original position is Deputy Principal Academic and is responsible for teaching and learning.

18. He averred that he was part of the shortlisting and was also the chairperson of the interview panel for the H.O.D position in question and both the applicant and the 2nd respondent were shortlisted because they both met the minimum requirements of the job.

19. He outlined the requirements for the post as stated in the advert and said the post requirements were, Grade 12 / NCV Level 4, Diploma / Degree in Business Studies, a Professional qualification in Education, Computer literacy, proof of SACE registration, driver’s license, minimum of five years TVET teaching experience and minimum of 2 years TVET management experience.

20. He disputed that the 2nd respondent does not meet the minimum requirements of the job and stated that the applicant holds a Professional Qualification in Education NQF level 8. He explained that the appointment in the level of this post is delegated to the Principal and that the panel of interviews recommended the 2nd respondent to the Principal and the Principal agreed with the panel and appointed her.

21. He averred that when the applicant was appointed as a Senior Lecturer she was also recommended for appointment and appointed by the Principal and this is the same process that was followed when the 2nd respondent was appointed. He disputed that the appointment of the 2nd respondent was rejected by the Department of Higher Education and reiterated that that the Principal is delegated to appoint a candidate in this position. He further explained that the 2nd respondent has on top of her tertiary qualification a Higher Diploma in Education which is a teaching qualification.

22. The 2nd witness of the respondent was Mr. Sithembele Damana who testified that he works for the respondent as a Human Resources Manager at the Ikhala TVET College since the 1st of April 2019 and that he issued the appointment letter of the 2nd respondent.

23. He confirmed that the appointment of the Head of Department is done at the College level and this appointment was never referred to the Department of Higher Education because the College Principal is delegated to appoint in the position of H.O.D. He averred that a suitable candidate was appointed to the position in question.

ANALYSIS OF EVIDENCE AND ARGUMENT

24. This matter was referred to the ELRC in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015.

25. Section 185 (b) of the Labour Relations Act 66 of 1995 as amended in 2015 provides that:

- every employee has a right not to be subjected to an unfair labour practice. The applicant feels that the employer has committed an unfair labour practice by failing to shortlist the applicant.

26. Both the applicant and the 2nd respondent were shortlisted to the position in question and were also interviewed. The respondent appointed the 2nd respondent to the position of the Head of Department. As indicated above the applicant contests the procedural fairness of the appointment of the 2nd respondent and her non – appointment as well as substantive fairness.

27. Most of the facts in this dispute are common and on the procedural aspect the issue raised by the applicant is that the appointment of the 2nd respondent to the position of the Head of Department was rejected by the Department of Higher Education. The 2 respondents witness cleared this part and stated that this type of appointment is done at the College level and this appointment was never referred to the Department of Higher Education because the College Principal is delegated to appoint in the position of H.O.D. They both confirmed that the 2nd respondent was the best candidate and was then appointed to the position in question. The 2 candidates in question in this dispute, the applicant and the 2nd respondent were both eligible for appointment to this position until the Principal had to make an appointment.

28. On the substantive issue the issue raised by the applicant is that the 2nd respondent does not meet the requirement of qualifications because the 2nd respondent does not possess a teaching qualification required in the advert. In respect of this part the advert states that the candidate must have a professional qualification in Education and the 2nd respondent has this qualification.

29. The first witness of the respondent explained the qualifications of the 2nd respondent and said that the 2nd respondent has a tertiary qualification and HDE which makes a teaching qualification of M+4 and this is a tertiary qualification. The qualifications were provided and discovered in the bundle of documents and were not disputed by the applicant.

30. I respect the fact that the applicant has a desire to be appointed or promoted or upgraded to the position of the H.O.D. The decision in Polokwane Local Municipality v/s South African Local Government Bargaining Council & others {2008} 8 BLLR 783 issued on the 07th of March 2008 by Molahleli J. is authority to the proposition that the desire by the applicant to be upgraded or to have his position upgraded is not a dispute of right and therefore not an unfair labour practice.

31. The court set aside the Commissioners award in this matter which entertained that type of a dispute as an unfair labour practice dispute. The court quoted with approval its dictum in the decision in Northern Cape Provincial Administration {1999} 7 BLLR 648 which distinguished between the “Rights and Interests”. In this matter the applicant’s desired outcome was for his job to be evaluated and upgraded.

32. Generally employees do not have the right to employment or promotion, the protection under section 186 (2) (a) relates to unfairness that happens when the employer seeks to promote or employ an employee.

33. The point is that the applicant and whoever is in this category does not have a right to the position or level that he wants but has an interest because his colleague have been appointed in that level. In as far as procedural and substantive issues of this Unfair Labour Practice Dispute the respondent has argued that the applicant has failed to prove that she was the best candidate for the position. I do not need to dwell much on this point because the 2nd respondent was eligible for appointment.

34. The Appointing Authority – Principal is not bound by the recommendation of the panel and in fact the Principal acted reasonably and transparently by appointing the recommended candidate and it must be noted that the Principal has authority to appoint and could have easily appointed the 2nd recommended candidate because he has that discretion.

35. For the reasons mentioned above I have no reason to disbelieve and reject the evidence of the respondents witnesses and as such the respondent’s version remains the most credible and acceptable version. It is also worth noting that in this type of a dispute the applicant bears the onus to prove that the respondent acted unfairly and its conduct constituted an unfair labour practice.

36. In SAMWU obo Damon v Cape Metropolitan Council (1999) 20 IU 714 (CCMA) AT 718 A the court said that in an unfair labour practice dispute the employee bears the onus to prove the unfair labour practice complained of and in order to do that he must examine the reasons as to why he was not promoted and demonstrate the defect in the employer’s reasoning.

37. This means that the employee must demonstrate that she was overlooked for promotion on the basis of some unacceptable, irrelevant or invidious comparison. She must show that on the criteria used to select another person above her, she stood head and shoulders above that person. This is not the case in this dispute and in fact the opposite is true.

38. The fairness required in the determination of an unfair labour practice must be fairness towards both parties, employer and employee. In Provincial Administration Western Cape (Department of Health & Social Services) v Bikwana & others (2002) 23 ILJ 761 (LC) paragraph (29)-(32) the Labour Court held that: There is considerable judicial authority supporting the principle that courts and adjudicators will be reluctant, in the absence of good cause clearly shown, to interfere with the managerial prerogative of employers in the employment selection and appointment process. Courts should be careful not to intervene too readily in disputes regarding promotion and should regard this area where managerial prerogatives should be respected unless bad faith or improper motive such as discrimination is present.

39. In this dispute I have no reason to disbelieve the corroborated evidence of the employer witnesses and prefer that of the applicant and his witness. The 2nd respondent met all the requirements of the post as envisaged in the advert.

40. From the argument above it then follows that the decision by the 1st respondent to appoint the 2nd respondent and not to appoint the applicant was procedurally and substantively fair based on the evidence and argument advanced above. The applicant has failed to demonstrate that there was an invalid, unreasonable and unfair reason why the respondent appointed the 2nd respondent.

41. The respondent has the authority and discretion to appoint but has a responsibility to exercise such discretion reasonable and fairly. In Arries v/s CCMA & others (2006) 27 ILJ 2324 (LC) the court held that there are limited grounds on which the arbitrator, or court, may interfere with the discretion which had been exercised by a party competent to exercise that discretion.

42. The reason for this is clearly that the ambit of the decision – making powers inherent in the exercising of discretion by a party, including the exercise of the discretion, or managerial prerogative of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised.

43. The court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner.

44. In City of Cape Town v/s South African Municipal Workers Union obo Sylvester & others (2013) 34 ILJ 1156 LC, (2013) 3 BLLR 267 (LC) it was held with reference to Arries decision above, that the overall test is one of fairness. In deciding whether the employer has acted fairly in failing or refusing to promote the employee it is relevant to consider some of the following factors.

- Whether the employer’s decision was arbitrary, or capricious, or unfair.
- Whether the employer failed to apply its mind to the promotion of the employee.
- Whether the employer’s decision not to promote was motivated by bad faith.
- Whether there were insubstantial reasons for the employer’s decision not to promote.
- Whether the employer’s decision not to promote was based upon a wrong principle.

45. In SAPS v Safety and Security Sectoral Bargaining Council, Robertson NO and Noonan (unreported Labour Court judgment 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), where the Court held that where an applicant in a promotion dispute, is unable to prove that he was the best of all the candidates who applied for the job, he or she should generally, at least demonstrate that there was conduct that denied him or her a fair opportunity to compete for the post, or conduct that was arbitrary or motivated by an unacceptable reason, or that the successful candidate was dishonest and misled the interview panel. The same court held further that every applicant must carefully apply his or her mind to the application form and complete it honestly and diligently to compete fairly with other candidates.

46. The applicant has not managed to demonstrate that one or some of the factors for consideration in the decision above exist for her to challenge the application of the employer’s discretion. If one looks at how the discretion was applied by the respondent in this case it is clear that the prescripts that relate to the employment were not disregarded.

47. In Nutese v/s Technikon Northern Transvaal (1997) 4 BLLR 467 (CCMA) it was said that employees have no right to promotion and as long as the employer cannot provide a rational basis for its decision, appointment or promotion stand to be set aside. Similarly the applicant has no right to protective promotion. There is a clear basis for the respondent to act in the manner described above and the manner in which this discretion was exercised justifies the appointment because discretion was not exercised in an arbitrary manner, for insubstantial reasons or without applying the mind and obviously not unfairly.

48. There is no justifiable reason for me to interfere with the exercise of the respondent’s discretion in appointing the successful candidate and the appointment of the 2nd respondent in this matter stands.

49. In the circumstances I make the following award.

AWARD

50. The appointment of the successful candidate referred to as the (2nd respondent), Mrs. Nomonde Mboyi – Dubeni, and the non – appointment of the applicant, Ms. Nolundi Mbuli, by the respondent, the Department of Higher Education – Ikhala TVET College, was fair and did not constitute an unfair labour practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015.

51. The applicant’s dispute referred to and dealt with here, under case number ELRC243/23/24 EC, is dismissed and the applicant is not entitled to any relief.

52. I make no order as to costs.

Signature:

Commissioner: Malusi Mbuli