ELRC 216-23/24KZN

Commissioner: VEESLA SONI
Case No.: ELRC 216-23/24KZN Date of Award: 3 JULY 2024

In the ARBITRATION between:

VERONICA BUSISIWE NKUNA APPLICANT
and

DEPARTMENT OF EDUCATION – KWAZULU NATAL 1st RESPONDENT

MR M MKHIZE 2nd RESPONDENT

Union/Applicant’s representative: Appeared in Person

1st Respondent’s representative: Abigail Ngonyama
1st Respondent Department of Education

2nd Respondent : Mr M Mkhize
2nd Respondent representative In Person

Details of the hearing and representation

1. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the “ELRC”) in terms of Section 186 (2) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for arbitration on 7 December 2023, via zoom. The matter was part heard and was finalized on 25 June 2024.

2. The Applicant, Veronica Busisiwe Nkuna appeared in person. The 1st Respondent was represented by Abigail Ngonyama. The Appointee, hereinafter referred to as the 2nd Respondent, M Mkhize appeared in person.

Issue to be decided

3. The issue in dispute was whether the Respondent committed an unfair labour practice, in respect of promotion, when they failed to appoint the Applicant and appointed Mr M Mkhize.

Background and survey of evidence

4. The dispute relates to Post 1492 as advertised in HRM 17 of 2022 at Tshelenkosi Secondary School. Both parties were candidates to the post and both were shortlisted and interviewed for the post.

5. The 2nd Respondent was appointed to the post on 27 February 2023 after the ratification process.

6. The Applicant’s case was that she applied for the post and underwent the interview. There was an unusual delay in the appointment and submitted that this was due to some uncommon interference. She asked for the appointment to be set aside and the process be restarted from the ratification stage.

7. The 1st Respondent’s case was that Post 1492 was advertised, post related to a deputy principal for Tshelenkosi Secondary School. This post attracted two grievances of which both were dismissed. The second grievance was not attended to by the Applicant and it proceeded in her absence. The outcome was issued advising that the grievance was dismissed. The District Grievance Committee (DGC) found the selection and recruitment process to be substantively and procedurally fair. The Interview Committee (IC) had undertaken the ratification. There was a tie in terms of scoring and secret votes were held for the selection of one candidate. The Applicant received two votes and the 2nd Respondent obtained four votes. There was one spoilt ballot paper. All documentation was submitted to the Head of Department ( HOD) to approve the recommendation made by the School Governing Body (SGB). The 2nd Respondent was approved by the HOD and appointed to the post of Deputy Principal.

Applicant’s case

8. Applicant: She referred to her score sheet and stated that the scores allocated to her appeared to be altered. She paid particular attention to the size of 0 in the score of 10 and the score of 4 on page 61 of her bundle. She stated that alterations were made to ensure that she scored lower. If this was not done she would have been the highest scoring candidate.

9. She claimed the decision for the implementation of a secret ballot was unfair. The voting system, via the secret ballot, created bias, as any person who had grievances with incumbents, would vote against them. There were a total of six people who voted but the result indicated 7 ballot papers. This was illogical. The result indicated that four people were in favor of the 2nd Respondent, and two in her favour, with one spoilt ballot paper. It was strange, as there was only six that voted.

10. On 28 March 2023, the HOD officially broke the tie between the Applicant and 2nd Respondent, thus appointing him for the position. This was in contra to his letter of placement, dated 27 February 2023, appointing him. It was unfair in that he was placed before the tie break.

11. She referred to HRM 17 of 2022, which made reference to the same post. It was noted that: “Mr Terence is considering changing the recommended name of the SGB to favor the other candidate as the results from the IC were tied”. This indicated external interferences to favor the 2nd Respondent. This came from the head office of HR. The same HRM went on to state that as a result of some of the old SGB members it went against the new vision. Reference was made to the Applicant labelling her as “madness’. It stated, quite specifically “it seemed like Head office is prepared to bring back the madness to the school”. The letter was written by the SGB.

12. A motivation letter was done on 29 July 2022, explaining what occurred. This was the second motivation letter for the same post, which appeared strange, as there was one done on 30 January 2022. She claimed that from the time of the interview the entire process was tainted, with the objective to appoint the 2nd Respondent.

RESPONDENT’S CASE

13. Winston Simphiwe Sibisi testified he was the principal at Tshelenkosi Secondary School. He was the resource person for the advertised post of a deputy principal at the school. The resource person was the representative of the Department to ensure that the process was fair and according to the prescripts of the law. He stated that the process was fair and they followed the HRM rules. The first set of interviews were conducted and it attracted grievances. The grievance was dealt with by the district grievance committee (DGC). The Applicant and one Mr Zulu lodged the grievance and the outcome was not in favour of the Applicant, but the process had to be redone from the interview stage. A meeting was held with the SGB members to reconstitute another interview committee (IC), as the chairperson had to be recused. A new chairperson of the IC was elected.

14. In HRM 5 the process was conducted and unions were invited. There were two candidates that were tied. That process also attracted a grievance for the same two candidates, who grieved on the first one. The DGC found in favour of the school and the Applicant was not in attendance at that grievance meeting. They were not allowed to change scores. A ratification meeting was held and the IC presented the scores to the SGB. It was resolved that all the documents had to be submitted to the HOD. The HOD had to break the tie. They received a letter of appointment from the HOD which was a letter of placement for Mkhize, the 2nd Respondent. They only became aware of the selected candidate once the letter was issued.

15. He denied that there was any interference with the scores. He further denied that he informed the Applicant that she hindered the placement of the 2nd Respondent. The unions were satisfied with the process and signed same in acknowledgement. Post 1492 was fair and ran according to the prescripts of the law.

16. S E Mkhize: he was aware of the Tshelenkosi deputy principal post. He was the chairperson of the IC and was trained for this role by the principal of the school. He expanded that there was no irregularities or flaws and the process was conducted in a fair and impartial manner. There were no grievances for the second time the process was undertaken. To his knowledge there were no tampering of the scores. Mkhize and the Applicant were tied in terms of their scoring. This was sent to the HOD to break the tie. The ratification minutes were concluded and signed. The member of the IC, S Mhlongo, enquired from the union if they were satisfied with the process and Barnes confirmed its fairness. The resource person, Sibisi, thanked Barnes for being a valuable member of the IC. Due to the tie in contenders they were instructed to vote and the 2nd Respondent was the successful candidate.

17. The voting was carried out by the IC and the 2nd Respondent was the successful candidate who achieved four votes. The Applicant had two votes and there was one spoilt vote. All documents were then submitted to the HOD.

ANALYSIS OF EVIDENCE

18. The matter was referred as an unfair Labour Practice: In terms of section 186 (2) (a) of the Labour Relations Act:
‘unfair labour practice means any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relation 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. The onus is on an employee to prove that she is entitled to relief in terms of this section. In order to succeed under this section, an applicant needs to prove at least three things, namely:
• That the dispute which was referred does indeed concern conduct by the employer relating to “promotion” of the employee;
• That there was unfair conduct on the part of the employer during the promotion process;
• That the unfair conduct constituted an unfair labour practice and that she is entitled to the relief she seeks

20. The first leg of the enquiry was whether the dispute was indeed one of promotion and my finding is contained hereunder.

IS THIS DISPUTE A PROMOTION DISPUTE?

21. There is a difference between a “promotion” dispute and an “appointment” dispute. Promotion disputes are arbitrated by the CCMA or Bargaining Councils as unfair labour practices in terms of section 186(2)(a) of the LRA, whereas appointment disputes cannot be arbitrated. At all relevant times Applicant was employed by the first Respondent in the position of a departmental head. The dispute related to Post 1492 which was advertised, related to a deputy principal for Tshelenkosi Secondary School, a higher post. The Applicant, in support of her argument, said that the advertised post was indeed a promotion as it had significantly more benefits such as her salary and pension at a rate she did have in her substantive post.

22. Grogan (Grogan Dismissal, Discrimination & Unfair Labour Practices (2nd ed) 52) states that employees, like soldiers are promoted when they are “elevated to higher posts”. The Labour Court has defined promotion as being “elevated to a position that carries greater authority and status than the current position that the employee is in” (Mashegoane and another v University of the North [1998] 1 BLLR 73 (LC)

23. In the circumstances I am satisfied that the dispute before me involved a promotion dispute, in terms of section 186(2)(a) of the LRA. I now turn to the enquiry as to whether the conduct of the 1st Respondent was unfair.

WAS ANY UNFAIR CONDUCT PROVED?

24. An employee who alleges that she is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The employee must prove not only the existence of the labour practice, but also that it is unfair. The test to be adopted in promotion disputes are set out hereunder. In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others (2013) 34 ILJ 1156 (LC), the case related to the failure of the municipality to promote one M to an advertised post. The arbitrator found that it constituted an unfair labour practice not to have promoted M and ordered the municipality to promote him. On review it was argued that there was no evidence that the municipality acted in breach of its own policies or that it acted bad faith, with an improper motive, malice or grossly unreasonably. It further argued by reference to SAPS v Safety & Security Sectoral Bargaining Council & others (2010) 31 ILJ 2711 (LC), [2010] 8 BLLR 892 (LC) that it is not the place of an arbitrator to instruct an employer to promote a candidate into a position.

25. By reference to Arries v CCMA & others (2006) 27 ILJ 2324 (LC) set out the test of fairness taking into account inter alia the following factors:
• whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the employer or
• whether the employer’s decision was arbitrary, or capricious, or unfair; or
• whether the employer failed to apply its mind to the promotion of the employee; or
• whether the employer’s decision not to promote was motivated by bad faith;
• whether the employer’s decision not to promote it was discriminatory;
• whether there were insubstantial reasons for the employer’s decision not to promote;
• whether the employer’s decision not to promote was based upon a wrong principle;
• whether the employer’s decision not to promote was taken in a biased manner.

26. That the overall test is one of fairness and as per Gcaba v Minister for Safety & Security & others (2010) 31 ILJ 296 (CC) found that that a failure to promote which had no direct consequences for other citizens was not administrative action subject to the review test of unreasonableness:
“The wholesale adoption of review tests, and notions of ‘setting aside’ an employer’s decision and sending it back to the employer for decision anew, thus appears misplaced. Rather the yardstick of fairness to both parties…is in fact apposite. This does not mean that when a selection process is unreasonable, it should not be identified as such, but that such irrationality goes to the issue of fairness. The clear wording of s 186 (2) of the LRA supports such an approach…
In this matter the fairness yardstick… has been used by the commissioner. He has found that in a situation where the applicant’s post (In which he had been acting for five years) remained vacant after his non-appointment, and where the city did not proffer any rationale for the pass mark in respect of the written assignment, nor explain the method of allocation of marks, it had been unfair not to appoint him.”

27. In applying the tests laid out in the above cases I now assess the evidence of the current matter to determine whether the decision of the employer measured the fairness yardstick. At the outset I want to assess the evidence of the Applicant. She gave detailed evidence in respect of the scores allocated to her at the interview. She referred to page 61 of her bundle (bundle A) where she stated that it appeared that her scores in two categories were altered. There seemed to be some form of pen alteration but it was not visibility clear. She maintained the score in question 1 and 4 were both altered to ensure she scored less. Her case was that if she was scored properly, without any interference, there would have been no tie with the 2nd Respondent. She was extensively cross examined on the scores and it was the 1st Respondent’s case, that there was no alteration. The Applicant failed to demonstrate that the alteration was intentional and deliberate aimed at eliminating her from being appointed. I have no actual evidence in this regard. At this juncture the Applicant was advised to engage a handwriting expert (to prove there were alterations) but no such expert was called to testify on her behalf. I refused any further adjournment as the matter was scheduled for four sittings and any further postponement would have been unnecessary and dilatory.

28. The Applicant also challenged the use of the secret ballot system, which she said was unfair, as it allowed for bias. In addition, there were a total of six people who voted but the result indicated 7 ballot papers. Under cross examination it was established that there were nine members of the SGB and eight names at the time of the process. From the members, Sibisi was excluded. As a result, seven voted, four in favour of the 2nd Respondent and two in favour of the Applicant with one spoilt ballot paper.

29. The Applicant referred to page 11 of her bundle A, HRM 17 of 2022, which made reference to the same post and noted that “ Mr Terence is considering changing the recommended name of the SGB to favor the other candidate as the results from the IC were tied”. The Applicant claimed this statement clearly exhibited external interferences to favour the 2nd Respondent. She drew attention to the next page of the letter ( page 12 of bundle A) where it went on to state that as a result of some of the old SGB members their decision went against the new vision. It was further stated, “it seemed like Head office is prepared to bring back the madness to the school”. The letter was written by the SGB and “madness” referred to the Applicant. It appeared from the wording of the letter that there was unhappiness in appointing the Applicant. Mere unhappiness is not sufficient to demonstrate an unfair labour practice and the Applicant was obliged to prove there were male fides and capricious conduct. In this regard it is imperative to note that the very same letter was not signed. Sibisi denied any knowledge of such a letter. He pointed out that it was not signed and more importantly that he would never have furnished her with such a letter. He added during that period the Applicant was away from school for medical reasons and requested medical boarding. He quite openly stated that he did not issue such a letter. I find this version probable and he appeared honest. I cannot accept that he would have been so blatant, if that was indeed his intention. Quite openly he admitted he met with her, but it was for medical boarding reasons.

30. These factors cannot be seen in isolation. Mere unhappiness or a perception of unfairness does not establish unfair conduct. What is fair depends upon the circumstances of a particular case and essentially involves a value judgement. The Applicant claimed, by reference to the scores and letter by the SGB, that it established conduct that denied her a fair opportunity to compete for the post, and was motivated by an unacceptable reason. The role of the arbitrator is to oversee that the employer did not act unfairly towards the candidate that was not promoted. In this regard I turn to the evidence of Sibisi.

31. Sibisi explained that there were two processes and both attracted grievances by the same candidates, the Applicant and Zulu. During the interviews the Applicant and the 2nd Respondent scored the same. They did not change scores nor were they allowed to do so. He said a ratification meeting was held and the IC presented the scores to the SGB. It was decided that all the documents had to be submitted to HOD who had to break the tie. Sibisi said there was no interference from the SGB and IC and they only became aware of the appointment when they received the letter from the HOD. It was the HOD that made the appointment.

32. The onus rested on the Applicant to prove all the allegations on a balance of probabilities. Having evaluated all the evidence, I find that the probabilities favour the 1st Respondent. The test for whether something has been proved on a balance of probabilities, was whether the version of the party bearing the onus (the Applicant), was more probable than not. The technique employed by courts and tribunals in resolving factual disputes involving two irreconcilable versions required findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. In this case, there was no evidence before me to suggest that any official or in particular the HOD, had any motive to maliciously destroy Applicant’s application. I simply fail to see how any official could possibly benefit by favoring the 2nd Respondent. The baseless suggestion that something sinister could have occurred, was therefore, with respect, absurd and amounts to no more than speculation. I am accordingly satisfied that the Applicant was not treated with prejudice or unfairness.

33. Sibisi maintained, with conviction, that no scores were altered. He categorically denied that there was any interference with the scores. He denied that he informed the Applicant that she hindered the placement of the 2nd Respondent. He pointed out that the unions were satisfied with the process and signed same in acknowledgement. He preserved that Post 1492 was fair and ran according to the prescripts of the law. The Applicant cross examined Sibisi on the basis that documents were altered and it created the platform for the 2nd Respondent to have been appointed. This was disputed by Sibisi. The contention and argument by the Applicant was unproven and it appeared to have been her suspicion.

34. I was impressed with Sibisi who confirmed that there may be errors or some anomalies with the documents but it was not doctored or hidden and evidently disclosed This demonstrated that he was forthright.

35. Sibisi was questioned that there was a soiled vote. Barnes voted when he was not allowed to do so. It was explained, rather openly by Sibisi, that it may have been an error but same was disclosed and not purposefully or intentionally concealed.

36. The Applicant claimed that the method by way of the secret ballot was unfair and prejudicial. She stated that if there was any agenda or past animosity with her, she would for obvious reasons not be appointed. Sibisi stated that the secret ballot process was a constitutional right and fair process. It was a process adopted in the HRM 5 (supplemented to be HRM 5 and 17). This process was also in terms of PAM. Mkhize established that the decision of the secret ballot was not unfair or arbitrary. The Applicant hypothesized that the secret ballot was unfair as it allowed for manipulation. I find same farfetched.

37. The Applicant stated that the tie break between her and 2nd Respondent was only done on 28 March 2023, but this was in conflict to the placement letter dated 27 February 2023. The Applicant argued that the 2nd Respondent was placed before the tie break. Sibisi explained that unsigned tie break letter dated 28 March 2023 contained an error in the date. The tie break did not occur on 28 March 2023, but rather 28 February 2023 as per the notation on the top part of the placement letter. I have noted that the placement was dated 27 February 2023 and handed to the school the following day, being 28th. This was a reasonable and sound explanation. His response was a probable scenario. There was no evidence as to when there was a break in tie. It could have been done at any time before February 2023. The Applicant relied on the condonation ruling issued in the matter on 1 August 2023, that stated that the tie break was done on 28 March 2023. I find that assertion was not prima facie proof of the tie break. It was simply a summation by the commissioner who rendered a ruling.

38. The 1st Respondent led the evidence of S E Mkhize who was the chairperson of the IC. Like Sibisi he expounded that there was no irregularities or flaws and the process was conducted in a fair and impartial manner. He clarified that to the best of his knowledge there were no tampering of the scores. Mkhize and the Applicant were tied in scores and they were instructed to vote and Mkhize was the successful candidate. He pointed out that the union was present during the process to ensure a fair process. S E Mkhize emphasised that the results were a tie. The Applicant underwent the exercise of the calculation of each point and there was a decimal or two were incorrect, in that it was marginally different by 0.2. This was as per the summary of the interview and scoring (page 77 of bundle A). The Applicant stated her score was 31.2 and Mkhize was 31.4, which was not a tie. She argued that the minutes reflecting it as being the same score, was inherently incorrect. In this regard Mkhize expressed that their scores were calculated at 31.3, which was considered a tie. A calculation was undertaken as per the score sheet, which demonstrated that the calculation was actually 31.3. Clearly there must have been an error when the summary of the scores were recorded. This did not demonstrate irregularity but human error.

39. Despite forceful cross examination of Mkhize he denied any manipulation of scores. His responsibility was to ensure a fair process and not observe each score from each member. It was claimed by the Applicant that he shared the same surname as the 2nd Respondent, hence they were related. This version remained unproven and rather vague. At no stage she requested his recusal from the IC and I find no manipulation of figures. The common surname did not change my stance in the matter.

40. Under cross examination Mkhize said that he had nothing to do with the placement letter, signed 27 February 2023. It was put to Mkhize that the placement letter was dated 27 February 2023, but the tie was only broken on 8 March 2023. In this regard Mkhize said he was not involved in the process as his role ceased after the scores were sent to the HOD. The SGB was only involved with the interviews and Mkhize had no knowledge after that process. He appeared honest and forthright despite repeated cross examination.

41. The arbitration of a promotion dispute does not entail a hearing de novo, but a review of the employer’s decision. In applying the Sidumo test to promotion disputes, it has been held that the arbitrator is not given the power to consider afresh what she would do but to decide whether what the employer did was fair. An arbitrator or court is not the employer. The role of the arbitrator is to oversee that the employer did not act unfairly towards the candidate that was not promoted. Where the employee complains that another employee was promoted, he or she must show that he or she has the necessary skills; and the person who was promoted does not possess the same or same level of skills. This has not been proven.

42. It is generally accepted that the manner in which candidates perform during interviews and other subjective impressions may be taken into consideration when making an appointment. There may be reasons for preferring one employee to another apart from formal qualifications and experience. The employer may take into account subjective considerations such as performance and life skills. In light of my assessment of the evidence and witnesses, I can make no finding of unfairness. The next enquiry is whether the Applicant was entitled to the relief she sought.

IS APPLICANT ENTITLED TO THE RELIEF SHE SEEKS?

43. The relief sought was for the process to be repeated. In the event that I am wrong in my finding that this is not a promotion dispute and wrong in my finding that no unfair conduct was proved, then there is yet a further reason not to grant the relief sought by the Applicant. Even if an employee does succeed in proving unfair conduct in a promotion dispute, this does not mean that she has proved an unfair labour practice or that she is entitled to any relief.

44. As a legal concept unfairness cannot exist in abstraction. Therefore, an applicant in a promotion dispute also needs to establish a causal connection between the alleged irregularity or unfairness and the failure to promote. To do that she needs to show that, but for the irregularity or unfairness, she would have been appointed to the post. This necessarily means that she must show that she was the best of all the candidates who applied for the position. I am however prepared to accept that in the event of a serious procedural irregularity, it is indeed possible for an arbitrator to order that the process must be repeated, without it being necessary for the applicant to show that she is indeed the best candidate or that she would necessarily have been appointed had it not been for the irregularity. This however does not mean that such orders should be made indiscriminately simply because there was some form of procedural irregularity.

45. In the education sector, it is the best interests of the child that is paramount; not the best interests of educators. It cannot be in the best interests of learners that they are deprived for months or for years of the benefit of stability that is associated with the appointment of educators to vacancies at the school. This is exactly what an arbitrator does when he or she orders that a selection process must be repeated. It is therefore an order that should not be made lightly. It is therefore my view that in an unfair labour practice dispute relating to promotion, an arbitrator should not order that the process must be repeated unless he or she is persuaded that the applicant at least stood a realistic chance of being appointed. This protects the rights and interests of aggrieved educators, and takes into account public interest and the best interests of learners. It simply does not make sense to order in a promotion dispute that a process is to be repeated if the applicant never even stood a realistic chance of being appointed, because then the relief that is ordered cannot serve any sensible purpose.

46. In deciding on whether decisions not to promote constitute unfair labour practices, arbitrators must strike a balance between the employer’s prerogative and employees’ right to be treated fairly. In this case I find that the Applicant has failed to discharge the onus vested upon her and I find there was no unfairness or arbitrary conduct by the Respondent.


Award
I make the following award:

47. The application is dismissed

ELRC Commissioner : VEESLA SONI
Date : 3 July 2024