ELRC15-22/23KZN

IN THE ELRC ARBITRATION
BETWEEN:

HIRAMAN MM “the Applicant”
and
DEPARTMENT OF EDUCATION – KWAZULU NATAL & Others “the Respondents”

ARBITRATION AWARD

Case Number: ELRC15-22/23KZN
Last date of arbitration: 13 March 2024
Date of award: 23 April 2024
Closing Arguments: 2 April 2024

NOZIPHO B KHUMALO
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION

1. The matter was set-down for arbitration in terms of Section 191(5)(a)(iv) of the Labour Relations Act (LRA) at the KZN Department of Education offices in Durban on 24 August 2022, 20 July 2023, 2 November 2022, 13 March 2024. Mr Indran Pillay appeared for the First Respondent and Mr Siyanda Mthimkhulu represented the Second Respondent, Nomcebo Bhubesi. The Applicant, Marcian Hiraman was represented by Ms Ishara Dhanook an official of NAPTOSA.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

2. The Applicant is employed by the Respondent as a level 1 educator at Briardale Primary School. He acted in a head of department (level 2) educator post.

3. In 2019 a post of Deputy Principal was advertised by the Respondent at Briardale Primary School. The closing date for the post was 3 September 2021. The Applicant applied for the post. He was shortlisted and was interviewed for the post.

4. The Second Respondent, Bhubesi, was appointed as the Deputy Principal at Briardale Primary School.

5. The Applicant testified and called three witnesses, Binal Brijlal “Brijlal”, Tracy Evon Chapuiset Le Mere “Le Mere” and Jeebaganthi Naicker “Naicker”. Pillay testified on behalf of the Respondent.

6. The Applicant submitted bundle “B’ and the Applicant submitted bundle “A”.

7. The applicant seeks compensation as a relief.

8. I have to decide whether the Applicant was the best candidate for the post and ought to have been appointed after the selection process.

9. I also have to decide whether the Respondent committed an unfair labour practice against the applicant by not appointing him to the post.

PRELIMINARY ISSUES

10. On 7 July 2023, the Applicant raised a preliminary issue concerning its relief sought. The Respondent also raised an issue concerning the Second Respondent’s retirement from the post in question. A ruling was issued.

SUMMARY OF EVIDENCE AND ARGUMENTS

Applicant’s case

11. The Applicant’s evidence is summarised as follows. On 17 September 2021, two (2) weeks after the closing date of the post, Mr Baque called the Principal in the morning and asked if the Second Respondent has another copy of her CV. The CV was printed from the Second Respondent’s memory stick in Naicker’s office. The Principal requested Naicker to transport the Second Respondent to Port Natal where she can drop off the CV because a page was missing from the CV that she submitted with her application.

12. When they arrived at Port Natal, the Second Respondent gave her CV to someone who was in a blue car at a parking lot. Her name on the acceptance schedule, “A”10 appears on line 10 which is crossed out. This is an indication that her name was added after.

13. The Applicant lodged a grievance concerning the inclusion of the Second Respondent’s CV, the scoring of the IC and Mr Menzi’s participation in the panel. Brijlal and Ntanjana investigated the matter. The investigation took three (3) weeks and a pre-liminary report was issued thereafter, “A”4-6. The investigation looked at the sifting list, the score sheet and the acceptance schedule, “A”10.

14. The Applicant did not receive a letter notifying him of the outcome of the interview but found out about the Second Respondent’s appointment at the staff meeting when it was announced by the principal.

The Respondent’s case

15. The Respondent’s evidence is summarised as follows. Posts are advertised in the bulletin. The District office’s function is to receive the applications and submit to the school. The school facilitates the recruitment process and submit all minutes of the meetings, the CV’s of the shortlisted candidates and the EHR11 document to the District office. The function of the District thereafter is to deal with grievances lodged by the candidates of the post.

16. The SGB recommends three (3) candidates and completes the EHR11 document by order of preference. The District office sends the EHR11 together with the rectification minutes and the CV’s of the three (3) recommended candidates to the HOD for appointment.

17. Ntshangase brought the matter into the attention of Pillay. There were complains about a CV that was brought into the process which should not have been. Pillay along with Ntshangase and Brijlal investigated the matter. During the investigation they looked at whether there was any unfairness done. The heard that the Second Respondent submitted her CV and that there was another CV that she submitted after the closing date. There was a schedule that was attached to the report but the author of the schedule could not be interviewed.

18. All the documents in relation to the recruitment process showed that interview and rectification were done accordingly. All the issues that were raised after the interview were not captured in the minutes that includes the issue about the Second Respondent’s CV being brought in after the interview. Amongst other things that were looked at during the investigation was unfairness towards any of the Applicants and differentiating factors such as age, qualification and ethnic group. A report was submitted to the HOD and the appointment was made

19. The Second Respondent has acted in the post for more than 12 months. In terms of the “B”13, any person that has acted in the post for more than three (3) years must be shortlisted. The Applicant and the Second Respondent were both recommended, “B”23. The appointment was made by the HOD and it could have been anyone from the recommended candidates.

SUMMARY OF ARGUMENTS

20. The Applicant argued that the Second Respondent should never have been shortlisted for the position as her CV was fraudulently placed in the pile despite it being sifted out. This has deprived another individual from being shortlisted for the position. If the Second Respondent was not shortlisted, the Applicant would have been the appointed candidate.

21. The First Respondent failed to prove that the allegations made are not true. Key witnesses like the school Principal, the SGB chairperson, The IC chairperson, the chair of the sifting process at the Department offices and the district director were not called to testify. These witnesses would have confirmed exactly what transpired and whether there was counter evidence to disprove the Applicants claims. In the absence of these witnesses and no evidence to prove otherwise, the Applicants witness testimonies remain undisputed.

22. The Respondent argued that an investigation by the district office was conducted in the allegation of the Second Respondent’s CV being fraudulently placed in the sifted in list and the EHR 11documnet was submitted to the Head of Department. It is not for the Applicant to direct the Respondent to accept or reject the investigation report. It is the prerogative of the Respondent. The person that signed the sifting schedule was not interviewed during the investigation and the alleged flaw in the CV that led to its non-consideration was not investigated.

23. The Applicant was shortlisted and subjected to an interview. He does not raise any unfair treatment during the interview process. He does not aver any unfair conduct on the part of the SGB towards him. The Second Respondent acted in the post for more than twelve (12) months. Clause 8.3 of the HRM35 of 2021 states that a serving educator that acted in a post for more than twelve (12) months must be shortlisted. The names of both the Applicant and the Second Respondent were submitted to the HOD for its consideration and the Second Respondent was the preferred candidate, hence appointment was made.

ANALYSIS OF EVIDENCE AND ARGUMENT

24. It is trite law that in an unfair labour practice dispute, it is the Applicant party which bares the onus of proving the claim on the balance of probabilities. It is trite law that when an employee complains that another was employed instead of him/her, he/she must show that he/she possesses the necessary skills and the appointed candidate does not possess the same level of skills. The Applicant must also demonstrate that there was conduct that denied him/her a fair opportunity to compete for a post, or conduct that was arbitrary or motivated by an unacceptable reason or that the successful candidate was dishonest and misled the interview panel or the employer.

25. In this case it is common cause that both the Applicant and the Second Respondent were recommended by the SGB. The Second Respondent scored higher than the Applicant. The Applicant’s contention is that the scoring was done unfairly and inconsistently thus disadvantaging him. Secondly that the Second Respondent did not perform the best at the interview and her scores were inflated.

26. There was no evidence lead on conduct contrary to the HRM or the Act that might have taken place during the interview process. The Applicant’s complaint in this regard is that the Second Respondent’s scores were inflated to his detriment which I find not sufficient to justify any act of unfairness.

27. In Noonan v SSSBC and others [2012] 56 ILJ (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 to compete 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.


28. The Applicant’s further contention is that if there were defects in the Second Respondent’s application, it should not have been shortlisted. During the arbitration we learnt that the Second Respondent had submitted two (2) CVs. There was no evidence lead as to whether the first CV was submitted before the closing date or not. Evidence in support of the Applicant’s contention is that the second page of the CV was missing which was not substantiated. Further evidence was the line that was drawn in the schedule of received applications, “A”10. This evidence was also not substantiated because the author of the document was not called to testify. Therefore, any interpretation on the line in “A”10 will be mere speculation.


29. It is trite that the decision to appoint lies with the HOD. The PAM provisions at B5.4.9 and HRM Circular No.35 of 2021 at 8.2 provides that an educator who has been acting in the advertised post for 12 months and more and has applied for the post must be shortlisted. Substantively, there was no evidence lead to show that the Applicant was the best of all the candidates and should have been appointed. There was also no evidence lead in support of the Applicant’s contention that the exclusion of the Second Respondent would qualify him for the post.

30. I therefore find, based on the above, that the Applicant failed to prove that he was the best suitable candidate for the position. I find further that the failure by the First Respondent to promote the Applicant did not constitute an act of unfairness. Therefore, I make the following order.

FINDING

31. I therefore find that the conduct of the Respondent, Department of Education – KwaZulu Natal, did not constitute any unfairness and therefore no unfair labour practice was committed.

AWARD

32. The application of the Applicant is dismissed.


Commissioner: Nozipho B Khumalo
Date : 23/03/2024