ELRC752-23-24GP

Case Number: ELRC752-23-24GP
Commissioner: E Maree
Date of Award: 24 April 2024

In the ARBITRATION between

Fancy Benson Phele

(Applicant)

and

Department of Education Gauteng
(1st Respondent)

Crystal Congo

(2nd Respondent)


Applicant’s representative: In person

Applicant’s address:

1st & 2nd Respondent’s representative: Mrs. V. Mnisi

1st & 2nd Respondent’s representative’s address:
Valerie.Mnisi@gauteng.gov.za

Details of hearing and representation

1The arbitration regarding the alleged unfair labour practice, referred in terms of section 191 of the Labour Relations Act 66 of 1995 [as amended], ‘’the LRA’’ was heard on 16 April 2024.

2. The matter was conducted via ZOOM.

3. The applicant acted on his own behalf while the respondent was represented by Mrs. V. Mnisi the DCES: Labour Relations.

4. The arbitration was electronically recorded, and handwritten notes were taken.

5. Ms. Malori assisted as interpreter.

Issues to be decided

6. I must determine if the respondent committed an unfair labour practise when the applicant was not promoted.

7. Appropriate relief must be determined in the event of a finding that an unfair labour practice existed.

Background to the dispute

8. The applicant, who had been employed as an educator since 5 February 2002, applied for the post of Principal at Arthur Matthews Primary School, where he was the Deputy Principal. He had been acting as Principal for the period 1 July 2022 until 31 July 2022. He earned R44. 000. 00 per month.

9. The applicant was shortlisted and attended an interview for the position on 29 September 2022. Following the interviews, the applicant obtained a score of 55 with another educator Mr. Hlalele. The second respondent obtained a score of 62 and a fourth educator, Ms. Manyatela a score of 56. The panel then agreed that the applicant should be number three (3) as he ‘’answered questions more accurately and expressed himself more’’.


10. The union however, was of the view and ‘’felt’’ that the applicant performed better than candidate number 2 and should be number 2. This then resulted in Ms Motsamai checking her scores and the applicant was awarded a score of 56 with Ms. Manyatela.

11. The applicant (56) was then recommended as number one (1),the second respondent (62) as number two (2) and Ms Manyatela (56) as number three (3).

12. On 21 April 2023 the interviews were re-done and the applicant then obtained a score of 43, Mr. Hlalele scored 41 and the second respondent scored 48. They were then recommended to the HOD.

13. The applicant seeks retrospective reinstatement into the position of Principal.

14. The applicant submitted bundle ‘’B’’ and the respondent submitted bundle ‘’A’’. The respective bundles were not disputed.

15. The applicant did not dispute the scores, nor the second interview process. He indicated that his case is based on the outcome of the first interview, where he was recommended. He accepted that the first interview process was nullified by the second interview process.

Survey of evidence and argument

The LRA requires that brief reasons be given in an award, therefore the following is a summary of the relevant evidence given under oath and submissions made in argument all of which is not reflected in this award but had nevertheless been taken into account.

Applicant’s evidence

16. The applicant Mr. Fancy Benson Phele submitted evidence in his case, in order to prove, on a balance of probabilities, that the failure to appoint him in the position of Principal amounted to an unfair labour practise.

17. According to Mr. Phele he was treated unfairly. He stated that there was a first and second round of interviews. He stated that according to ‘’the Labour Relations Act and labour laws’’ a person cannot be appointed promoted twice on the same vacancy list. The second respondent had been promoted to deputy principal and then to principal and as ‘’far as I know’’ there is a 12 month probation period and he thus ‘’wants to know if a person can be promoted twice on the same vacancy list’’.

18. Mr. Phele testified that his case is based on the first interview where he was recommended. He does not dispute the second interview/letter and he must be promoted to Principal.

First and Second Respondent’s evidence

19. The respondent called no witnesses and argued that the undisputed documents supported its case.

Analysis of evidence and Arguments

20. I must determine if the first respondent committed an unfair labour practice by not promoting the applicant.

21. Section 186 (2) (a) of the LRA defines an unfair labour practice as follows:

(2) Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving –

(a) Unfair conduct by the employer relating to the promotion, demotion, probation [excluding disputes about dismissal for a reason relating to probation] or training an employee or relating to the provision of benefits to an employee’’

22. It is trite law that the onus in an unfair labour practice is on an applicant to prove that the failure of the respondent to promote him constituted and unfair labour practice as he was the suitable and better candidate for the position (Buffalo City Public FET College v CCMA and others (P372/12) (2016) ZALCPE (handed down on 4/11/2016}

31. The first requirement to prove is that the conduct complained of amounts to a promotion in other words that it would entail an elevation to a higher post. Furthermore, the dispute must relate to a failure or refusal to promote the employee to an existing vacancy.

32. An employee contending thus that the employer committed an unfair labour practice relating to promotion must prove that a post existed for which he was a contender, that this post was at a higher level than his current post and that the employer refused/failed to place him in that post.

33. It must therefore be proven by an applicant claiming that there exists an unfair labour practice relating to promotion that he had actually sought promotion to the post in question, in other words that he had applied for the advertised post and was unsuccessful. It must be proven that he was unsuccessful due to unfair conduct of the respondent.

34. It was common cause that the applicant had applied for a vacant post that was at a higher level and if appointed would have amounted to a promotion.

35. The test as laid down in Sidumo v Rustenburg Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC) entails that an arbitrator is not given the power to consider afresh what he/she would do but to decide whether what the employer did was fair. If this test is applied to promotional disputes an arbitration is a review of the employer’s decision and not a hearing de novo.

36. The basic requirements for a fair promotion are that the procedure must have been fair, there must have been no unfair discrimination and the decision of the employer must not have been grossly unreasonable.

37. In order to prove that the employer’s decision was grossly unreasonable it needs to be shown that the employer has acted irrational, capricious or arbitrarily, was motivated by bias, malice or fraud, failed to apply its mind or had exercised its discretion for insubstantial reasons or based on wrong principles.

38. In Mandla Skosana v CCMA and others (JR) 2160/15) (handed down on 6 March 2019) the Court held that in determining fairness, the proper context must be considered. There exists no separate requirement of procedural fairness in an alleged unfair labour practise. The proper enquiry thus entails whether the suspension of the benefit as had happened in that matter, was objectively justified and not irrational, arbitrary or mala fide. Contrary to an unfair dismissal dispute where a clear distinction is often drawn between substantive and procedural fairness. This is not the case when determining fairness in an unfair labour practise dispute and a more holistic approach based on all the evidence should be adopted.

39. Did the applicant show that the actions of the first respondent in promoting the second respondent shows mala fides and was irrational?

40. It was common cause that the applicant during the first interview was initially not the recommended candidate but only became it after intervention from the union. It was common cause that this interview process was redone and that during the second interview his score placed him in the second position. The minutes show that the SGB did not recommend any candidate but just reflected their scores, noting that the decision to appoint/promote is the prerogative of the HOD.

41. At this stage I wish to pause and recommend the first respondent with its detailed minutes of both interviews.

42. The case of the applicant was based on the outcome of the first interview process that he admitted was redone when the second interviews were held. He also admitted that at both processes, the second respondent obtained the highest score and confirmed that he was taking no issue with the second interview process.

43. When the applicant was asked why he was at arbitration as he did not dispute the second interview process, and that the first interview process was therefore nullified, he stated that he ‘’feels’’ that he had been recommended the first time.

44. The applicant’s logic (or lack thereof) makes no sense. He admitted that the first interview process was invalidated by the second interview process that he does not dispute. Yet, he wants to be promoted in terms of a process that had been nullified when the interview process was redone.

45. ELRC Collective Agreement 3/2016 deals with promotions and the principles applicable thereto. It is stipulated in clause 37 that there is no general right to promotion but that an employee has the right to be fairly considered when a vacancy arose. It is however expected that the best candidate be appointed but this expectation is subjected to the right of the employer to appoint a weaker candidate in the name of affirmative action to address the injustices of the past.

46. Clause 42 stipulates that the mere fact that the employee who was promoted did not score the highest marks or is not better qualified does not necessarily justify a conclusion that the decision not to promote was unfair. Clause 44 deals with the recommendation made by the SGB and it is stipulated that the HOD as employer must place significant weight on such recommendation but is not bound by such recommendation where there are sound reasons in doing so. It is required of the HOD ad per clause 45 to act reasonable when making the appointment and cannot be interfered by an arbitrator purely because there may be another perhaps better decision which could have resulted by giving more weight to some factor/s and less to others. The decision of the HOD, if reasonable, will stand. The same principles are embodied in the relevant circulars, pointed out by the respondent.

47. In Ncane v SSSBC and others (2017) 38 ILJ; 907 (LAC); (2017) 4 BLLR 350 (LAC) the Court noted with reference to suitability that good labour relations expect an employer to act fairly but it also acknowledged that this is not a mechanical process and that there is a justifiable element of subjectivity or discretion involved. It is for this reason that the discretion of an arbitrator to interfere with the employer’s substantive decision to promote a specific employee is limited and an arbitrator may only interfere where the decision is irrational, grossly unreasonable or shows mala fides.

48. The applicant failed to show that the appointment of the second respondent was irrational, grossly unreasonable or mala fide. His case that he sought to be promoted based on a process that was overrun by a second interview process is irrational and has no standing in law.

Award

49. The applicant failed to discharge the onus he had to proof that the conduct of the first respondent in not appointing him, amounted to an unfair labour practise.

50. The dispute is thus dismissed.


Signed at Pretoria on 24 April 2024


Commissioner E Maree