ELRC60-23-24KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN ESAYIDI TVET COLLEGE
PORT SHEPSTONE
Case No ELRC 60-23-24 KZN
In the matter between
SADTU OBO RADEBE MZAMO SAMSON Applicant
and
DHET 1st Respondent
NEHAWU O B O MNDAWENI NKOSINATHI 2nd Respondent

ARBITRATOR : AS Dorasamy
HEARD : 22 JANUARY 2024
DATE OF AWARD : 5 FEBRUARY 2024
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 22 January 2024 the evidence was completed at the Esayidi TVET College offices in Port Shepstone. This matter was held under the auspices of the Education Labour Relations Council (ELRC). Initially Mr Sphesihle Mkhize of SADTU represented Mr Radebe Mzamo Samson (applicant) who thereafter represented himself. Mr Mduli Xolani represented the Department of Higher Education Esayidi TVET College, (1st respondent), the second respondent, Mr Mndaweni Nkosinathi (appointee) was represented by Mr Wandile Dlamini of NEHAWU. The parties submitted written closing arguments by the 29 January 2024. The party’s submissions and the applicable provisions of the applicable circulars relating to promotions were considered in arriving 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 Head of Unit Agriculture and Farming, Post Number HOD NM 201/11/2022 and dependent thereon the appropriate relief may be determined.

THE BACKGROUND TO THE DISPUTE
3.1 The applicant applied for and was not short-listed for the post.
3.2. Nkosinathi Mndaweni was appointed to the post. The applicant prays that the appointment be set aside and he be compensated.
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 was acting in the post and applied for the post three times. He was not short listed when the post became permanent. His grievance was dismissed because he did not have the qualifications for the post..

FIRST RESPONDENT’S OPENING STATEMENT
5. The first respondent contends that he would listen to the case and defend the policies and will call witnesses to prove its case.
SECOND RESPONDENT’S OPENING STATEMENT
7. The second respondent wants to continue in the post he got fairly.

SUMMARY OF EVIDENCE AND ARGUMENT
EVIDENCE ON BEHALF OF THE APPLICANT
THE SALIENT ASPECTS OF THE EVIDENCE ARE RECORDED BELOW.

MR RADEBE SAMSON MZAMO
Mr Radebe testified to the following effect:
8. He is currently a lecturer in the farming department. Prior to that he was also in the farming department.
9. He qualified for the post because he was acting in the post. He did administration work. He knows the appointee who worked under his supervision for seven years,
10. His post did not relate to agriculture and farming. He was lecturing in Engineering- maintenance management.

Under cross-examination by the First Respondent he stated that:
11. He did not have the first requirement (Must be in possession of a relevant REQV 13, Bachelor’s degree or National Diploma in Agriculture or Farming Management-page 11).
Page 16 section 4.2.3 Shortlisting
( c ) The selection committee must agree on the criteria based on the inherent requirements of the advertised post when screening the applications.

Under cross-examination by the Second Respondent he stated that:
12. The selection committee should have considered him by adjusting the requirements.

EVIDENCE ON BEHALF OF THE FIRST RESPONDENT
CYNTHIA BUYISILE MPANZA
The salient aspects of her testimony are recorded below.
13. She is the HR manager and in this matter was the HR practitioner. Her role was to give advice on the policy and procedure.

14. She recalls the matter. The applicant was not short listed nor interviewed. He did not have the minimum requirements for the post (page 11). They did not use all the requirements and they took the main requirements example qualifications.

15. On page 12 /13 are the names of the short listed and interviewed candidates. On page 12 item 2 was discussed by the panel and then they looked at the CV’s. The panel agreed and it was in line with the policy.

16. The applicant was acting in the post but he needed to meet the minimum requirements for the post.

17. The applicant did not meet the minimum requirements of the post. No candidate was prejudiced. The only union present was NEHAWU. The appointee met all the requirements.

Under cross examination by the applicant she stated as follows:
18. She advised the panel and had the policy with her. There was another person who was not short listed. All the candidates brought the documents to the interview.

Under cross examination by the second respondent she stated as follows:
19. No questions were asked.

CHIKUMBUTSO CHRISTPOHER MIGOCHI
The salient aspects of his testimony are recorded below:
20. He is the Deputy Principal at the college and was appointed the chairperson by the principal for the post.

21. He and the HR person created the final document , advert on page 11.

22. The applicant was not short listed because he did not have the minimum qualifications for the post. He was aware that the applicant was acting.

23. The HR took them through the requirements for the post. The panel agreed on the phases and the union representative was happy. They had the required number of candidates. They had 5 candidates and they needed 3 candidates. There was no need to go to the second phase.

24. The appointee is doing well in the post.

Under cross examination by the applicant he stated as follows:
25. The committee agreed on the process.

SAMKELO ZULU
The salient aspects of his evidence are recorded below.
26. He was a union observer in the process and believes the process was free and fair.
27. The HR orientated the panel on the advert and short listing. The minimum requirements were in the advert.
28. They set the criteria and the names were arrived at and they signed and he would have objected if the process was not fair.

Under cross examination by the applicant he stated as follows:
29. They looked at the minimum requirements and specialised field and they looked at the CV’s. The candidate had to have agricultural experience. The panel did not have to move to the next phase. They looked for agriculture and farming. If there were more than they needed they would have looked at other criteria.

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 Mndaweni Nkosinathi be appointed to the post. This was done. The appointment was not arbitrary or motivated by an unacceptable reason. He met the requirements for the post while the applicant did not meet the requirements for the post. 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 him to the post.

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 appraises the procedure manuals and where necessary amendments are effected.

36. The applicant was not short listed because he did not possess the minimum qualifications for the post (farming and agriculture). There were candidates that were short listed but not appointed and therefore he has not submitted reasonable or sufficient grounds that the appointment of Mr Mndaweni Nkosinthi should be set aside.

37. As a consequence of the above the application must fail.

AWARD
38.1 The application of the applicant, Mr Radebe Mzamo Samson, is dismissed
38.2. The appointment of Mr Mndaweni Nkosinathi is hereby confirmed

DATED AT DURBAN ON THIS 5th DAY OF FEBRUARY 2024.


A S DORASAMY (ARBITRATOR)