ELRC806-23-24LP

IN THE ELRC ARBITRATION
BETWEEN:
SADTU obo Govender D “the Applicant”
And
THE HEAD OF DOE KwaZulu Natal “the Respondent”
ARBITRATION AWARD

Case Number: ELRC452-23/24KZN

Date of arbitration: 09 February 2024 and 28 March 2024.

Date of award: 06 June 2024

Lungisani Mkhize
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 arbitration hearings were held online at the dates mentioned on the first page of this award.

2. The Applicant, Mr. Dayalan Govender was present and represented by Mr. Siphesihle Mkhize, a South African Democratic Teachers’ Union Official. The Respondent, the Head of Department of Education in KwaZulu Natal, was represented by Mr. Charles Ngcobo, its Chief Director, Industrial Relations Services Section.

3. The proceedings were held in English and digitally recorded.

4. The services of an interpreter were not requested.

ISSUE TO BE DECIDED

5. I am required to determine whether there was procedural and substantive unfairness in not promoting the Applicant the positions of Chief Education Specialist: Marking Processes and School Based Assessment Management (Reference Number OBE/01/2023). The Applicant sought promotion to an alternative position equivalent to the one applied for or compensation at the same salary level as the post.

BACKGROUND

6. The Applicant was appointed as an Educator in the public sector from January 1986. He was promoted to Principal. In January 2006, he was promoted to Chief Education Specialist: Examinations, Assessment and Quality Assurance until his resignation on 31 August 2013 for personal reasons. On 24 July 2018, he was appointed as a post level 1 Educator and promoted to Principal on 17 July 2019. On 14 October 2022, he acted as a Circuit Manager for the Ogwini Circuit (Sayidi CMC, UGu District).

7. The Respondent issued HRM Vacancy Circular Number 3 of 2023 advertising various office based Educator vacancies with a closing date of 10 March 2023. The Applicant applied for the Chief Education Specialist: Marking Processes and School Based Assessment Management position with reference number OBE/01/2023. However, the Applicant was not shortlisted for this position. On 5 May 2023, he lodged a grievance against the Respondent as he believed he met the minimum requirements as advertised for the position in question. On 9 May 2023, the Respondent appointed someone to the position in question. He never received a response on the grievance he lodged.

8. Aggrieved about not being promoted to the position in question, the Applicant followed up on his grievance and received no response. He was admitted in hospital and returned to work somewhere in July 2023 where he further followed up on the grievance he lodged. His last email following up on his grievance was sent on 23 August 2023 at 13:46. Thereafter, on 22 September 2024, the Applicant referred an unfair labour practice dispute relating to promotion to the ELRC as he believed he would have been the most suitable candidate and that the Respondent failed to follow procedure.

9. The ELRC then set the matter for conciliation on 13 October 2023 but remained unresolved. On 04 December 20213, the Applicant then requested the matter to be arbitrated and the ELRC then scheduled the matter to be arbitrated before me as shown on paragraph [1] of this award.

SUMMARY OF EVIDENCE AND ARGUMENTS

10. The Applicant Union Representative, Mr. S Mkhize called the Applicant who testified under oath. He submitted a bundle of documents referred to as Applicant Bundle containing the following documents:
• ELRC Collective Agreement Number 1 of 2010
• HRM Vacancy Circular Number 03 of 2023
• Curriculum Vitae of Mr. Dayalan Govender
• Applicant’s Qualifications
• Proof of Grievance Process
• Proof of Being Shortlisted for a Higher Post with same Directorate
• Proof of Communication on numerous attempts for Disclosure
• Z83 Application form for Post OBE/01/2023

11. The Respondent Representative, Mr. Charles Ngcobo appeared on 9 February 2024 during the narrowing of the issues stage and did not return after load-shedding when the proceedings resumed at 12:00 midday. He also did not appear on 28 March 2024 even though properly and sufficiently notified by the ELRC of the date of set down. Thus, the Respondent’s case was not presented. I only summarized evidence which I regarded to be relevant to the dispute and which helped me to reach my decision as guided by section 138 of the LRA as amended.

The Applicant’s Case

12. No opening statements were made by the Applicant Union Representative. Mr. Mkhize called the Applicant, Mr. Dayalan Govender who testified under oath as follows: When he applied for the position in question, he believed he was the best candidate. He was not shortlisted but he had been shortlisted before for a higher position.

13. Mr. Govender further testified that he believed he was the best candidate because he followed procedure, had 9 years’ experience in schools as a Teacher, HOD, Principal (Rural & City Schools), involved in assessment processes and had conducted examinations at school level. He resigned due to a messy divorce and got back to the system. His CV was quite comprehensive. At the time of the arbitration, he was acting as a Circuit Manager and was managing 37 schools in the UGu District. He had 35 years of experience with the Respondent. He contributed to an increase from 30% to 100% in schools he managed.

14. Govender testified that he had more than 9 years’ experience coupled with appropriate experience. He had no issue with the incumbent. He could not prepare for the case as he had no documents and had not attended a grievance meeting. He would not have been shortlisted for a Chief Director Post if he did not meet the minimum requirements. He was a leader in his community as he was a Senior Pastor of a Church.

15. In June 2019, he was shortlisted for a Director Post. Interviews kept on being canceled but he was invited in writing. The non-response to his grievance prejudiced him. The Respondent appointed an incumbent on 9 May 2023. His Z83 form and CV were self-explanatory. These contained his career summary, qualifications, CED experience, coordination of examinations at schools and adult education. Thus, the Respondent did not follow procedure.

16. The non-response from the Respondent meant their either did not receive his grievance or they agreed. Since he had proof that the Respondent received his grievance, then the Respondent had something to hide. Since he had no issue with the incumbent, the setting aside of the appointment would prejudice the incumbent. Thus, the better option was to appoint him in a similar level post within the Department.

The Respondent’s Case

17. The Respondent Representative, Mr. Charles Ngcobo did not appear nor call any witnesses.

ANALYSIS OF EVIDENCE AND ARGUMENT

18. Section 186(2) (a) of the LRA stipulates that an unfair labour practice means any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee.

19. This is a dispute relating to promotion and therefore, my determination will focus on whether there was unfair conduct by the first Respondent against the Applicant concerning procedure of appointing an incumbent to the position of Chief Education Specialist: Marking Processes and School Based Assessment Management (OBE/01/2023) instead of the Applicant in response to HRM Circular No 3 of 2023.

20. In Buffalo City Public FET College v CCMA and others (P372/12) [2016] ZALCPE 18 (handed down on 4 November 2016) it was held that in unfair labour practice disputes, particularly in those relating to promotions, the onus is on the Employee to prove that he/she is a suitable and better candidate for the position in question. Mr. Dayalan Govender then had the burden of proof and started leading evidence.

21. In City of Cape Town v SAMWU obo Sylvester and others (2013) 34 ILJ 1156 (LC); [2013] 3 BLLR 267 (LC) it was held, with reference to the Aries case that the overall test is one of fairness. In deciding whether the employer acted fairly in failing or refusing to promote the Employee it is relevant to consider the following:

a) Whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the Employer; or
b) Whether the Employer’s decision was arbitrary, or capricious, or unfair; or
c) Whether the Employer failed to apply its mind to the promotion of the Employee;
d) Whether the Employer’s decision not to promote was motivated by bad faith;
e) Whether the Employer’s decision not to promote was discriminatory;
f) The law requires the Employee to show the existence of the conduct or decision complained of. Therefore, the onus rests with the Employee. It follows that if the Employee is challenging the process and that decision or conduct by the Employer is not established by the Employee, then that is the end of the issue.

22. The Applicant’s overall allegation was that he was not shortlisted and consequently not interviewed and would have been the most suitable candidate. He testified that he met the minimum requirements as required in the HRM Circular No. 3 of 2023. The post advertisement stated that actual teaching experience of a minimum of 9 years was required. Clause 3.1 of the ELRC Collective Agreement Number 1 of 2010 states that for a level 6 position, a minimum of 8 years’ experience is required. The Applicant testified that he had 35 years’ experience with the Respondent.

23. From the documentary evidence presented, it was noted that the Applicant had the minimum qualification of matric plus a 3 year diploma including a professional qualification in line with clause 3.2 of the ELRC Collective Agreement Number 1 of 2010. Clause 3.3.2 of the ELRC Collective Agreement Number 1 of 2010 states that applications will be rejected based on incomplete applications e.g. No CV, unsigned applications; The Applicant submitted an unsigned Z83 form as part of documents to prove that he met the minimum requirements. Clause 2.1 in Annexure A of the ELRC Collective Agreement Number 1 of 2010 states that sifting must ensure the application form is duly signed. Since the Applicant’s submitted application is not signed, the sifting process will reject the Applicant’s application.

24. Clause 3.3.3 of the ELRC Collective Agreement Number 1 of 2010 states that applications will be rejected based applications received after the closing date. Clause 5 of the HRM Vacancy Circular Number 3 of 2023 stated that the closing date for applications was 10 March 2023. However, in the Applicant’s testimony and documentation, nowhere was it stated if the application was submitted on or by 10 March 2023 in line with clause 3.3.3. The burden of proof lies with the Applicant but was not discharged in this aspect.

25. When the Applicant requested the criteria used in the short-listing process on 05 May 2023, it came out that the Applicant also applied for the Chief Education Specialist: Assessment Instruments Development, Examination Ethics, Concessions and Monitoring (OBE/02/2023) in response to HRM Vacancy Circular Number 3 of 2023. However, there was no filled preference order form (Form 5) that accompanied the application as outlined in clause 6.6 of HRM Vacancy Circular Number 3 of 2023. The same form is referred to in clause 4.4.5 of Annexure A of the ELRC Collective Agreement Number 1 of 2010. When the Applicant referred the dispute, he also included a Quality Assurance Director (Reference Number DOE/01/2023) and no signed Z83 Form relating to such a post was provided. No preference order form was submitted. If I were to find in the Applicant’s favor and remedy the situation by setting aside a position, it is not clear which one would be set aside. It would also not be prudent to set aside all three (2x CES Post & 1x Quality Assurance Director) appointments.

26. From my analysis above, it is my finding that the Applicant failed to discharge proof that the Respondent conducted an unfair labour practice by not promoting him to the Chief Education Specialist: Marking Processes and School Based Assessment Management (OBE/01/2023) as he could not prove that he complied with all the requirements to be shortlisted in the first place. The advertisement also required that he sends a CV with not more than 2000 words and he did not declare if his CV had more or less or equal to 2000 words.

AWARD

27. I hereby find that the Respondent, Head of DOE-KwaZulu Natal did not commit any unfair labour practice against the Applicant, SADTU obo Govender D by appointing not shortlisting him for position Chief Education Specialist: Marking Processes and School Based Management (OBE/01/2023).

28. Accordingly, the Applicant’s Case is dismissed.

L Mkhize

Arbitrator 06 June 2024
ELRC452-23/24 KZN