ELRC675-23/24NW

Commissioner: D Smith
Case No.: ELRC675-23/24NW Date of Award: 22 May 2024

In the ARBITRATION between:

SADTU OBO K B MOTHIBI
(Union / Applicant)

and

FIRST RESPONDENT: DEPARTMENT OF EDUCATION NORTH WEST
SECOND RESPONDENT: L J BOTSHELO
(Respondent)

Applicant’s representative: Mr. B T P Monkwe

Respondent’s representative: Ms. B Phuswane

DETAILS OF HEARING AND REPRESENTATION:

1. The dispute was referred to the Education Labour Relations Council (“Council”) in terms of Section 191(5)(a)(iv) of the Labour Relations Act, No. 66 of 1995 (“LRA”). It was heard at the Vryburg offices of the Respondent on 16 May 2024.

2. The Applicant, Mr. Kealeboga Brown Mothibi (Mothibi), was represented by Mr. B T P Monkwe, an official of the trade union SADTU. The First Respondent, Department of Education : North West was represented Ms Boitumelo Phuswane, its SES: Disputes. The Second Respondent, Ms. L J Botshelo (Botshelo), represented herself.

3. The process was digitally recorded, and I took handwritten notes.

4. The Applicant submitted a 106-page bundle of documents marked A.

5. The Respondent offered to settle the dispute by setting aside the appointment and start the process afresh. Botshelo did not agree to this, so the matter proceeded to arbitration.

ISSUE TO BE DECIDED:

6. Whether the Respondent committed unfair conduct in not shortlisting Mothibi for a promotional post as per Departmental Circular No. 26 of 2023.

7. If I find in the positive, I must decide upon an appropriate remedy.

BACKGROUND:

8. The post of principal was advertised. Mothibi applied but was not shortlisted. Botshelo was shortlisted and appointed.

REMEDY

9. Mothibi sought the appointment be set aside and the process begun afresh.

SURVEY OF EVIDENCE AND ARGUMENT:

10. For the purposes of this award, I do not intend to record verbatim evidence led, submissions made and or arguments raised on record. Only the prominent points raised by each party in their evidence that have a bearing on the issue in dispute and to be decided are recorded hereunder. I did, however, consider all the evidence that was presented in rendering this award.

APPLICANT’S EVIDENCE AND SUBMISSIONS

11. Mothibi testified under oath that:

11.1. He was the best qualified of all the candidates and exceeded all the requirements of the post. He was treated unfairly as he was not shortlisted.

11.2. He had a master’s degree in education and 36 years of experience, mostly in management.

11.3. His CV appeared at A33.

11.4. The schedule of the 27 applicants appeared at A16. None were better qualified than him.

11.5. He did not know why he was not shortlisted.

11.6. The panel minutes at A20 and 21. The review panel recommended the process be nullified and started afresh.

12. There was no cross-examination.

RESPONDENT’S EVIDENCE AND ARGUMENT

First Respondent

13. The First Respondent did not challenge the matter.

Second Respondent

13.1. Botshelo declined to make representations.

ANALYSIS OF EVIDENCE AND ARGUMENT

14. On 3 September 2023 the review panel found:

“1. Disputantt raises unfair discrimination based on age and unfairness or biasness.

2. Review panel established elements of biases and unfairness because:

a. Candidates with higher overall teaching and management experience and highest qualification were not shortlisted without valid reason cited. However, candidates with least teaching and management experience were shortlisted. Notwithstanding that such candidates can as well be considered, but it remains unfair to overlook those with better experience and qualifications.

b. It looked strange, unreasonable, irrational, and unfair to the review panel to overlook principal and deputy principals at PL3 level seeking promotion while considering and recommending DH with less than three years managerial experience.

c. Age of applicants is a ground for unfair discrimination.

3. Review panel therefore advise and recommends to the District Director:

a. nullify the process.

b. Establish an independent panel to restart recruitment and selection process as afresh.4 (sic)”.

15. On the evidence before me I concur with this sound recommendation. It is unfortunate that it was not acted on.

16. Du Toit et al Labour Relations Law: A Comprehensive Guide (5th edition) 486 stated: “there is no right to promotion …, however employees have the right to be fairly considered for promotion when a vacancy arises.”.

17. The First Respondent acted unfairly in not shortlisting Mothibi.

FINDING

18. For the reasons stated above I find that the Respondent has committed unfair conduct in not shortlisting Mothibi.

AWARD

19. The appointment of the Second Respondent, Ms. L J Botshelo is set aside.

20. The First Respondent, Department of Education : North West is ordered to start the process afresh.


D H Smith

ELRC PANELIST
22 May 2024