Case Number: ELRC 995-22/23 EC
Commissioner: Henk Jacobs
Date of Ruling: 15 August 2024
In the matter between
NAPTOSA obo C Ganto
(Applicant)
And
Department of Higher Education – Lovedale TVET College
(Respondent)
Union/Applicant’s representative:
Adv GD Saayman
Telephone:
Telefax:
E-mail: saaymangavin@gmail.com
Respondent’s representative:
Respondent’s address: Mr V Mabebe
Telephone:
Telefax:
E-mail: Pakama.xamesi@lovedale.org.za
Details of hearing and representation
1. The arbitration hearing into an alleged unfair labour practice dispute, referred in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995, as amended, (the LRA), was held at the premises of the Respondent on 04th of June 2024, 24th and 25th of July 2024.
2 The applicant, Ms C Ganto, was represented by Advovate G D Saaymani, an official from the National Professional Teachers Organisation of South Africa (NAPTOSA), the 1st respondent, Lovedale TVET College, was represented by Mr V Mabebe, an attorney from Dyusha & Majebe Attorneys, and the second Respondent, Mr L Dywili, was, represented by Mr L Nabo, an attorney from BNX Attorneys.
3 The hearing was held in English, IsiXhosa and was digitally recorded.
4 Parties further agreed to file heads of argument by no later than 06 August 2024 and all parties did so.
Issue to be decided
6. The issue to be decided is whether the Respondent committed an unfair labour practice in terms of section 186(2) of the LRA, by not shortlisting the Applicant for the post of Head of Department (HOD).
Background to the matter
7. The Applicant referred an alleged unfair labour practice dispute pertaining to promotion to the Education Labour Relations Council after she applied for the post of HOD Ref: KC 03/07/2021. The matter was conciliated, conciliation was unsuccessful, and the applicant filed a request to have the matter arbitrated.
8. At the initial sitting, parties concluded a settlement agreement which was subject to approval, approval was not granted, and the matter proceed with arbitration after a ruling in terms of section 142A of the LRA was issued.
9. It was established as common cause that the post was advertised; the Applicant applied and was not shortlisted. It was common cause that the Applicant did meet the minimum requirements for the post and that the 2nd Respondent submited a copy of his drivers license with his application.
10. Issues in dispute is whether the Applicant completed her application according to the requirements, whether two other candidates did not complete their applications according to the requirements where one of the two were appointed.
11. The Applicant sought for the appointment of the 2nd Respondent be set aside, that a new panel be appointed to redecide the appointment, or 12 months compensation.
Survey of evidence
12. This is a summary and does not reflect all of the arguments submitted and considered in reaching a decision.
Applicant’s evidence
13. The Applicant testified that she has been employed as a High School, teacher since 1995.During 2008 she was employed by the 1st Respondent, and in 2012, she was promoted to a senior lecturer and in 2014, she was promoted to a program manager till to date.
14. The Applicant further testified that she held a number of qualifications with a Master of Arts in Public Relations as her highest qualification, she submitted all her documents with her application for the post as HOD, the allegation for not being shortlisted was that she did not initial the Z83 application.
15. Bundle E, page 1, is the application for Sithembiso Mbeka, and the question related to whether you have a valid work permit (only if non-South Africa) was not completed, and the question that reads; “In the event that you are employed in the Public Service, will you immediately relinquish such business interests? the applicant in this application indicated “yes”. Page 2 of bundle E which is the second page for Mbeka, the application document was not signed.
16. Page 14 of bundle F is the application for the 2nd Respondent, the question related to “In the event that you are employed in the Public Service, will you immediately relinquish such business interests?”, was not completed by the 2nd Respondent.
17. Bundle E, page 7, the applicant indicated “not applicable” at the question related to “in the event that you are employed in the Public Service, will you immediately relinquish such business interests.
18. Bundle A, page 30 and 31 shows the selection criteria as follows:
3 – year degree or diploma
Recognised teaching qualification
At least three years’ experience in lecturing in PSET
Valid SACE registration
Drivers licence
Computer literacy
Application requirements were considered:
Incomplete Z83 was disqualified
Old Z83 was disqualified
Expired driver’s license
Disqualified for not attaching relevant documentation.
The following candidates were shortlisted
Dywili Lukhanyo, Mbeka Sithembiso and others
19. The Applicant also testified that she applied for the post prior under post number KG03/07/2021, she was shortlisted and invited to an interview which were postponed. She was then not shortlisted on her second application due to a voice recording that did the rounds.
20. Under cross examination, the Applicant confirmed that she was aggrieved by the fact that she was not shortlisted, she did receive an explanation from the acting principal why she was not shortlisted and that her application was incomplete.
21. The voice note was the reason to re-start the recruitment process and the one applicant who did not sign the application was not appointed.
22. Ms Windvoel testified that she was representing SADTU during the recruitment process as observers and they were only given the applications of the candidates who were not shortlisted. The process was unfair as they were not given the shortlisted candidates applications to go through. The 2nd Respondents application was not completed when he did not indicate an answer on the 3rd last question on the fist page, and the other candidate who did not sign the application should not have been shortlisted.
23. Under cross-examination, Ms Windvoel confirmed that all criteria were agreed to, the unions did agree the process was fair, but the 2nd Respondent did not complete the Z83 document.
24. Ms Mhaga testified that she is a shop steward, and the Applicant approached her to lodge a grievance, there was a voice note that led to the recruitment process being re-started. They had a meeting with the acting principal who indicated that it is his prerogative to appoint the 2nd Respondent.
25. Under cross-examination, Ms Mhaga confirmed that she was not part of the process, and the principal was also not part of the recruitment process.
Respondent’s evidence
26. Mr Dywili testified that he met all the minimum requirements for the post, he does not conduct any business with the state, therefore did not have any business interests and that there is no column with an answer “N/A”.
27. The Z83 document states that “each application for employment form must be duly signed and initialled by the applicant. Failure to sign this the form may lead to disqualification of the application during the selection process”.
28. Mr Dywili also testified that he does not know the panellists who conducted the interviews and he was the most suitable candidate for the post.
29. Under cross-examination, Mr Dywili confirmed that the Z83 document does not refer to a lack of an initial as a disqualification criteria. That he was a senior lecturer for two years and was appointed during 2020. That the Applicant is better qualified than him.
30. Mr Jacobs testified that he manages the Lovedale campus and that he was part of the shortlisting committee. The shortlisting criteria were agreed to between the parties and all agreed. The 2nd Respondent was recommended as the preferred candidate for appointment and the principal had no role to play in the recommendation.
31. Under cross-examination, Mr Jacobs confirmed that in terms of the process, all applications were divided between the panellists who had to go through them in terms of the agreed criteria, when they were done, they shared with others, those who were excluded were given to the unions. The 2nd Respondent did not answer the 3rd last question on the application form and in terms of his experience as a senior lecturer, he did not qualify for the post in terms of the recruitment policy.
Analysis of evidence and argument
32. Section 185 (b) of the Labour Relations Act no 66 of 1995 (as amended) (LRA) provides that every employee has the right not to be subjected to unfair labour practice.
33. The definition of unfair labour in terms of section 186(2)(a) of the LRA includes “any 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 provisions of benefits to an employee”.
34. It is common cause that the 2nd Respondent was appointed to the position of HOD and that the Applicant was not shortlisted based on her failure to initial her application or Z83 document.
35. It is this exclusion from being shortlisted by the Respondent that forms the basis of the Applicants complaint. The question to answer is whether such exclusion was unfair. It is common cause that the Applicant did not initial her application, although the Z83 document makes specific provision for an applicant to initial each page.
36. It was further established that there were other applicants who did not complete their X83 applications and were shortlisted. The application of Mbeka was not signed at all, yet the applicant was shortlisted. The 2nd Respondent did not complete the 3rd last question on the first page.
37. It was extensively argued that it would depend on an applicant’s answer to the question preceding the 3rd last question which reads as follows: “Are you conducting business with the State or are you a Director of a Public or Private company conducting business with the State? If yes, (provide the details)”, the applicant may or may not answer the 3rd last question which reads as follows: “In the event that you are employed in the Public Service, will you immediately relinquish such business interests?”
38. It might be correct that if ones answer to the first question is “no”, there may be no need to answer the next question. The instruction on the Z83 as well as the criteria set by the shortlisting committee indicates that candidates must fill in all sections of the form completely, accurately and legible. That means, all that the 2nd Respondent had to do is to indicate “yes” that he would relinquish all such business interests should he be employed.
39. It is not a matter of interpretation of the questions, but a matter of compliance. On that basis, the 2nd Respondent did not complete his application in full. One must be careful to read something into the application that is not there. If the drafters of the Z83 application form wanted it to read in that manner, they would have simply drafted it to read, if your answer to the previous question is “yes”, please indicate whether you would relinquish such business interests, but they did not. Therefore, it remain the duty of an applicant to answer the question.
40. One would think that once the shortlisting criteria was set, all applications should be scrutinised using the same standard, and if not, any decision to include someone not complying with the criteria would be arbitrary, capricious and unfair as such an applicant will be provided with an opportunity to showcase him or herself while others were not. It was correctly argued by the 1st Respondent that the Applicant was correctly disqualified because she did not initial her Z83 application. What was not correct was to not disqualify all other candidates who did not complete their Z83 applications, including the 2nd Respondent.
41. I would have to further agree with the 1st Respondents argument that two wrongs in law do not justify a decision that the process was unfair, with the 2nd Respondent not being appointed.
42. It was further established that the 2nd Respondent did not qualify for the post of HOD based on the Recruitment Policy framework regarding a Level 9 post. However, the minimum requirements for the post do not require 3-5 years’ experience at supervisory level on a salary level 7 or 8. The non-compliance with the recruitment policy would not constitute unfairness towards the Applicant, one can only wonder why the Respondent would not follow the criteria set out in the recruitment policy.
43. It was argued by the Applicant that the 2nd Respondent misrepresented himself in his application when he indicated that he was a senior lecturer since 2012, when he was a post level 1 educator at the time he applied for the post and that he was not a senior lecturer at the time. It was the Applicants evidence that he was appointed as a senior lecturer during 2020. On that basis, it must be concluded that the Applicant misrepresented himself in his application to advantage himself in the process.
44. The minimum requirements for the post does not include experience as a senior lecturer as a requirement, but an added advantage. Hence, such misdirection may have advantaged the 2nd Respondent. What was established was that the Applicant was more experience and was better qualified than the 2nd Respondent.
45. In Noonan v SSSBC and others [2012] 33 ILJ 2597 (LAC) (handed down on 1 June 2012), 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 of competing 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.
46. On appeal the Court held that, where the successful candidate did not disclose that he had a disciplinary infraction, this may lead to unfairness. This approach overlooks several aspects. The first is that there was no disclosure by the third party at all. The second is that the national Commissioner condoned the failure after the appointment was made. The third is that it downplays the value of process and lends support to possible dishonest practices. Fourthly, it devalues the role of the first selection panel. And importantly it prejudiced the Appellant as he would possibly have been ranked first on the list of recommendations. The Court held that where an Applicant incapacitates the first selection panel from performing its task, s/he defeats the purpose of having a first selection panel and illegitimately advantages himself/herself and, of course, disadvantages the other candidates. Furthermore, the non-disclosure enables the non-disclosing candidate to rise through the process to a stage where the national Commissioner is able to condone the lapse. This is manifestly unfair. Every Applicant is obliged to apply his/her mind carefully to the application form and to complete it honestly and diligently so as to compete fairly with other candidates.
47. Taking into consideration the above, I find that the Respondent committed an unfair labour practice by excluding the Applicant when she was not shortlisted based on the reasons provided.
48. The Applicant sought for the appointment of the 2nd Respondent to be set aside and for the post to be re-advertised, or in alternative, 12 months compensation. When considering relief, one must always consider whether it is just an equitable in all circumstances.
49. In light of the above, I find it appropriate to make the following award.
Award
50. The First Respondent, the Department of Higer Education: Eastern Cape, committed an unfair labour practice relating to promotion as contemplated in section 186(2)(a) of the LRA, against the applicant Ms C. Ganto.
51. The appointment of the second respondent, Mr L Dywili, is set-aside on the following conditions:
51.1 This order is not retrospective but is effective as from the date of this award.
51.2 The second respondent is entitled to his remuneration and benefits as HOD, until the date that this award is served on the parties by the ELRC.
51.3 This order does not prevent the first respondent from appointing the second respondent, applicant or any other suitable candidate in an acting capacity as HOD in this post, pending the permanent filling of the post.
51.4 The first respondent is directed to repeat the recruitment and selection process in relation to the post of HOD Lovedale TVET College, post ref: KC 03/07/2021.
51.5 The recruitment and selection process must be repeated from the advertising stage / short listing stage and the short-listing and interviews must be conducted by an independent panel appointed by the first respondent,
51.6 The independent panel must make its recommendation on ranking and preference of candidates on the appointment of a suitable candidate as HOD, Lovedale TVET College, to the first respondent.
Signature:
Commissioner: Henk Jacobs