ELRC389-23/24EC

Case Number: ELRC389-23/24EC
Panellist: Thobela Obey Mqamelo
Date of Award: 31 March 2024


In the Arbitration between


NAPTOSA obo Mongezi Maqina
(Applicant / Union)

And


Department of Education-Eastern Cape & 1 Other (Khaya Nyikanyika)
(Respondents)


DETAILS OF HEARING AND REPRESENTATION

1. This unfair labour practice dispute with its specific focus on an alleged unfair promotion was set down in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 (as amended) (LRA), under the auspices of the Education Labour Relations Council (ELRC), on 23 November 2023, 01 February 2024, 02 February 2024, 13 March 2024, and 14 March 2024, at the offices of the Department of Education in Queenstown.

2. The applicant, Mongezi Maqina was present and represented by Mr. Aaron Mhlontlo (Mhlontlo), an Official from NAPTOSA.
3. The 1st respondent, Department of Education Eastern Cape was present and was represented by Mr. Xolani Sam (Sam) an Employee Relations Manager at the Respondent.

4. The 2nd respondent, Khaya Nyikanyika (Mr Nyikanyika) was also present and represented by Mr Themba Rataza a Union Official from SADTU.

5. Parties submitted their bundle of documents, and these were marked (Applicants Bundle-EE1, and 1st Respondent’s Bundle ER1).

6. Parties submitted their opening statements orally.

7. The Applicant, Ms Nolundi Ngetu, and Ms Yonela Qhayisa testified during the proceedings.

8. Evidence was tendered under oath.

9. The proceedings are manually and digitally recorded

10. The applicant submitted his written closing arguments.

11. The 1st respondent, and the 2nd respondent submitted their written closing arguments outside the allotted time frame.

BACKGROUND TO THE MATTER

12. The Applicant commenced employment with the Respondent on 10 April 1996, he is currently employed as a P2 School Principal, and is earning a salary amounting to R434,118.00 per annum.

13. The Applicant alleges that the Respondent failed to promote him when he applied for a position of a P3-School Principal at Nzimankulu Senior Secondary School.
14. The applicant is challenging the following:

• The selection panel was not properly selected.
• The selection criteria was not crafted by the panel.
• The Applicant did not receive a similar treatment as the other participants including the 2nd Respondent.
• Sifting was never done in line with the Human Resource policy and the revised Personnel Administrative Measures (PAM Document).
• The panel was biased towards the incumbent in that his application form was incomplete, and was incorrectly filled.
• The application forms of the other shortlisted candidates were also incomplete and incorrectly filled.

COMMON CAUSE ISSUES

15. On 27 March 2023, the respondent advertised in an Open Bulletin for Principals Volume 1 of 2023 (Bulletin) for the position of a P3 School Principal at Nzimankulu Senior Secondary School.

16. Both the Applicant and the 2nd Respondent applied.

17. The Applicant was not shortlisted and unsuccessful and the 2nd Respondent was successful and was appointed in the position.

18. It is common cause that all Principal positions are Post Level 4, and that the higher the school grading is, the higher the salary.

ISSUE TO BE DECIDED

19. I must determine whether the Respondent has committed an unfair labour practice, in not promoting the applicant Mr Mongezi Maqina.

20. The applicant seeks compensation as a remedy.

SURVEY OF EVIDENCE AND ARGUMENT

21. This is a summary of the evidence considered in terms of Section 138(7)(a) of the LRA and which I regard as pertinent to this dispute.

APPLICANTS 1st WITNESS
MONGEZI MAQINA (MR MAQINA)

22. The applicant testified that he started working for the respondent on 10 April 1996, as an educator at Ntabenkonyane High School in Alice.

23. In terms of qualifications, the Applicant has a Standard 10/Matric certificate, a Senior Teachers Diploma, a Further Diploma in Education Management. And is currently working as a P2 School Principal at Dumalisile Senior Secondary School. He has twenty (20) years of experience as a School Principal.

24. He applied because the position is a P3 School Principal and he is currently a P2 School Principal, and that the new position has a better salary than his current salary.

25. He submitted his application form at the 1st Respondent’s offices in Komani and is not happy with the procedure that was followed by the 1st Respondent in the process of shortlisting.

26. According to the applicant there was no communication acknowledging the receipt of his application form by the 1st Respondent. He was not notified whether he met the requirements for the position or not. He thought that with his vast experience he would be invited to attend the interviews for the position.

27. He testified that the criteria was crafted by the Circuit Manager and given to the Secretary to read and he referred to page 13 bundle EE1 in support of his testimony.

28. The Applicant testified that all applications forms were numbered by the Respondent, and that his application for was marked (Form=19), as indicated on page 18-24 of bundle EE1.

29. He testified that he does not have any other skills besides the experience he gained from working for the 1st Respondent, and that he did not complete paragraph 20.9 of page 20 of bundle EE1. He has also mentioned this in his curriculum vittae on page 22 bundle EE1.

30. It is the Applicant’s testimony that the application form of one of Mr Masakhane Potwana was also incomplete and was incorrectly filled in, but he was shortlisted.

31. The applicant compared the application form of Mr khaya Nyikanyika on page 32-38 bundle EE1.

32. He testified that his application and that of the 2nd respondent are incomplete and incorrectly filled in, that they both indicated an incorrect post level 3 and that both their application forms were incomplete.

33. It is the testimony of the Applicant that the 2nd Respondent should not have been shortlisted due to the discrepancies.

RESPONENTS 1st WITNESS
NOLUNDI NGETU (MS NGETU)

34. She testified that she is the Circuit Manager (Also known as the EDO) at the Cacadu Centre under the Chris Hani District.

35. During the period of the advertisement, she trained the School Governing Body (SGB) of Nzimankulu Senior Secondary School on how to handle recruitment, and that the trade unions (NAPTOSA and SADTU) were also invited to that training, and that after the Human Resource Management issued dates for the shortlisting, she took all the application forms to the selection panel at the Nzimankulu Senior Secondary School, and that NAPTOSA and SADTU representative were present as invited on the day.

36. Ms Ngetu testified that, her role on the day of shortlisting was that of resource person, and guiding the selection panel which comprised of five member (3 Parents, 2 Teachers) in terms of the shortlisting process and relevant legislation, and in the presence of the trade unions representative (NAPTOSA and SADTU) she guided them in terms of not having to use the names of the Applicants, and also to use the criteria as per the requirements of post in the bulletin. According to Ms Ngetu, the interview panel crafted the criteria.

37. It is the testimony of Ms Ngetu that she did not interfere with the shortlisting process, and even the minutes of the shortlisting dated the 22 May 2023 indicates that the panel crafted the criteria. She further testified that if there was anything incorrectly done in the shortlisting process the trade unions were present to act in the best interests of their members.

RESPONDENTS 2ND WITNESS
YONELA QHAYISA

38. She testified that she is currently employed as an Educator by the 1st Respondent at Nzimankulu Senior Secondary School. She also serves as the Secretary of the SGB at Nzimankulu Senior Secondary School. After the position was advertised on the bulletin, she and the other SGB members were invited by the 1st Respondent to attend a training on the recruitment process.

39. She testified that on the day of the shortlisting there were altogether twenty-four (24) application forms brought by Ms Ngetu, and that from the twenty-four (24) application forms two has been sifted out by Human Resources. The panel looked at the two sifted out applications and found out that they were sifted by the Human Resource because they applicants did not file their Identity Documents (ID) but one of the applications indeed had the ID copy attached at the back of one of the pages, and shortlisted that particular (1) application form.

40. It was agreed that the process of shortlisting will examine the following:

Complete application form.
Experience
Supporting documents.

41. According to Ms Qhayisa, there was no objection raised by any of the trade unions present with regards to the selection criteria that was followed.

42. In terms of the completion of the form, it was agreed that there must be no blank space and that there must be an ‘’N/A’’ written if the paragraph is not applicable to and particular applicant. The Applicant himself was taken out of the shortlisting during the first round due to his form being incomplete. The panel findings are written on the front page of his application form.

ANALYSIS OF EVIDENCE

43. This matter was referred in terms of Section 186(2)(a) of the LRA with specific reference to a promotion. An unfair labour practice in this regard means any unfair act or omission that arises between an employee and employer involving unfair conduct by an employer relating to a failure to promote.

44. It is trite therefore that the Applicant in this matter bears the onus of proving on a balance of probabilities that the cited unfair conduct occurred.

The selection criteria was not crafted by the panel.

45. It is the evidence of the Applicant that the selection criteria was crafted by Ms Ngetu and given to the Secretary of the SGB to read it. He referred to a passage ‘’The process was explained by the EDO and asked the secretary to read it’’ page 13 of bundle EE1 which is the minutes of the shortlisting process dated 22 March 2023‘’. It is the testimony of the Applicant that he understands the passage to mean the EDO Ms Ngetu brought the document to be read by the secretary.

46. This testimony was disputed by Ms Ngetu in that, she did not interfere with the work of the shortlisting panel. According to Ms Ngetu she merely explained the process of developing a shortlisting policy. The evidence of Ms Ngetu was corroborated by Ms Qhayisa.

47. Ms Qhayisa testified that the minutes of the shortlisting are a true reflection of what took place on the 22 May 2023 being the day the shortlisting. I have assed the document and I find that nowhere does it suggest any interference in the shortlisting by Ms Ngetu.

48. I find that the evidence proves that Ms Ngetu’s presence during the shortlist was to guide the selection panel on how to create a criteria. It was expected from her as a resource person to guide the panel. I accept her evidence as more credible that that of the Applicant. I find it highly improbable that Ngetu interfered with the shortlisting process in the absence of compelling evidence to the contrary.

The Applicant did not receive similar treatment as the other participants including the 2nd Respondent.

49. In his evidence the applicant testified that he is currently in the position of P2 School Principal, and that a P3 School Principal would have been a promotion for him.

50. It is common cause that in terms of the selection criteria the number of candidates that can be shortlisted is only five (5), and the outcomes of the shortlisting cane out that the five (5) candidates that were shortlisted was Ncinane A, Nyikanyika K, Nobaza N, Fatuse V, and Potwana M. It is the Applicant’s averments that if he was short listed, he would have performed better at the interviews.

51. I must examine whether the decision of the 1st Respondent to not short list the Applicant was fair.

52. To compare the Applicant with the other for candidates who were not appointed would be a futile exercise, as the other four (4) candidates were not appointed.

53. Ms Qhayisa testified that she was in the panel that short listed and appointed the 2nd Respondent, and that he was successful because he met the criteria, in that he possessed management skills in terms of experience and qualification.

54. From the evidence in front of me, Mr Nyikanyika has the necessary skills and possesses a higher level of skills compared to the Applicant. It was not disputed that Nyikanyika’s highest qualification is a master’s degree in education management, and that the Applicant only possesses a Further Diploma in Education.

55. In my view the Applicant is merely unhappy with the fact that he was not shortlisted, there is no evidence proving that the Applicant received different treatment as compared to the 2nd Respondent and the other four candidates.


Sifting was never done in line with the Human Resource policy and the revised Personnel Administrative Measures (PAM Document).

56. In terms of the revised PAM Document receipt of the application forms the following must take place:
(a) The employing department shall acknowledge receipt of all applications by:
(i) informing all applicants in writing of receipt;
(ii) clearly indicating whether the application is complete or not; and
(iii) indicating whether the applicant meets the minimum requirements for the post and that such applications have been referred to the institutions concerned.

(b) The employing department shall handle the initial sifting process to eliminate applications of those candidates who do not comply with requirements for the post(s) as stated in the advertisement.

(c) In the case of colleges, where applications are received at the institution, the college council shall acknowledge receipt of applications in terms of paragraph 2.1 above.

(d) Trade Union parties to Council will be given a full report, at a formal meeting, on:
(i) names of educators who have met the minimum requirements for the post/s in terms of the advertisement;
(ii) names of educators who have not met the minimum requirements for the post/s in terms of the advertisement; and
(iii) other relevant information that are reasonably incidental thereto.

57. The Human Resource sifting report was not available during the proceedings, as the previous director of labour relations at the respondent had retired, and the documents could not be found.

58. It was never the version of the Applicant that the Human Resource sifting was never done, however he testified that, there was no acknowledgement of receipt of his form. There is no evidence that the other candidates received acknowledgement of receipt of their applications as well. According to the Applicant he submitted his application via hand delivery and was made to sign a register as proof of the submission.

59. I find that the proof of submission in this manner also served the purpose of acknowledging receipt of the application form from the Applicant.

60. According to the Applicant his application and that of Mr Nyikanyika should have been sifted out. This version cannot stand as it was not disputed that the sifting process by the Human Resource Management entailed sifting out application forms with missing supporting documents. The one applicant who was sifted out for a missing copy of his identity book, was shortlisted by the panel on subsequent discovery of his identity book.

61. There is no mention of the Human Resource sifting reports being requested by any of the trade unions on the day of the shortlisting. This corroborates the 1st Respondent’s testimony that the trade unions (NAPTOSA and SADTU were part of the sifting process.

The panel was biased towards the incumbent in that his application form was incomplete, and was incorrectly filled.

62. The testimony of the Applicant is that his application and that of Mr Nyikanyika are incomplete, and both should have been sifted out. It is common cause that the Applicant and the 2nd Respondent referred incorrectly to a post level 3 Principal’s instead of post level 4 Principal’s position. They confused the school grading with the post level hence they wrote post level 3 instead of post level 4.

63. It was the evidence of Ms Ngetu that she observed the shortlisting and that the Applicant was not penalised for this error, as it was common error on most of the application forms, but that the Applicant was penalised for an incomplete application form.

64. According to Ms Ngetu, where the application form was blank on a particular paragraph the CV skill required was looked if it is mentioned in the CV.

65. In assessing the application forms Mr Nyikanyika, in his application form omitted paragraph 11 (gender), and paragraph 23.3 (Other). His Curriculum Vitae details the points missing in the application form.

66. On comparison with the applicant his application form is missing paragraph 14 (fax), paragraph 16 (Other languages), paragraph 20.9, and 20.10 (Other), paragraph 21.3, 21.4, 21.5, 21.6 (Other working experience), paragraph 24 (professional activities) paragraph 26.1-26.5 (Social responsibilities), paragraph 27.4, 27.5 (Personal qualities).

67. The information missing in the application form is not reflected in the curriculum vitae of the Applicant, and this renders his application form to be materially incomplete.

68. In my view the errors on the 2nd Respondent application as alleged by the Applicant are minor errors and not sufficient to have his application discarded. The actions of the 1st Respondent in shortlisting the 2nd Respondent do not amount to any biasness towards the 2nd Respondent.

The application forms of the other shortlisted candidates were also incomplete and incorrectly filled.

69. In this dispute the applicant must prove that the decision taken by the 1st Respondent to appoint the 2nd Respondent was irrational, arbitrary, biased, and that he possessed the necessary skills on a higher level than the person that was ultimately appointed.

70. It would be irrelevant for me to consider evidence about other candidates to the position either than a comparison between the Applicant and the 2nd Respondent.

71. Although they were shortlisted, and not appointed by the 1st Respondent, they were not joined in this dispute before me and apparently have no interest in the outcome of this matter.

72. Under the circumstances, the conduct of the 1st Respondent does not amount to an unfair labour practice.

73. Having made a value judgement I find that the Applicant has failed to prove that the 1st Respondent committed an unfair labour practice.

AWARD

74. The Applicant’s dispute referral is dismissed.

Signature:

Commissioner: Thobela Obey Mqamelo
Sector: Education