ELRC204-23/24KZN

Commissioner: VEESLA SONI
Case No.: ELRC 204-23/24KZN
Date of Award: 10 SEPTEMBER 2024

In the ARBITRATION between:

NAPTOSA OBO SHARITHA PILLAY Applicant

and

THE DEPARTMENT OF EDUCATION: KWAZULU NATAL First Respondent
SADTU OBO A D ROOPAN Second Respondent

Union/Applicant’s representative: NAPTOSA – Rishal Juguth
Durban

First Respondent’s representative: DOE – Mr S T Daniso
228 Pietermaritzburg Street
Pietermaritzburg

Second Respondent: SADTU – Mr Vishnu Naidoo
Appointee Ms Roopan

DETAILS OF HEARING AND REPRESENTATION
1. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the
“ELRC”) in terms of Section 182 (2) (a) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for arbitration on the 20 September 2023. The matter proceeded and was part heard and adjourned to 7 February 2024.

2. The Applicant, Mrs Sharitha Pillay was present and was represented Mr Rishal Juguth from NAPTOSA. The First Respondent was represented by Mr Daniso, of the Department of Education in Kwa Zulu Natal. The Second Respondent, Ms Roopan, was represented by SADTU, Mr Vishnu Naidoo.

3. The proceedings were heard virtually on 20 September 2023 and 7 February 2024. The matter proceeded on 18 April 2024, and remained part heard. The matter was scheduled on a few occasions and was finalized on 3 September 2024.

ISSUE TO BE DECIDED
4. The issue in dispute was whether the First Respondent committed an unfair labour practice, in respect of promotion, when they failed to shortlist the Applicant.

BACKGROUND
5. The background of the matter was that the Respondent advertised a position of a Deputy Principal’s post, at Kharina Secondary School, for which the Applicant applied. The post was advertised in terms of HRM 5 of 2022 for which the Second Respondent, Ms Roopan applied and was appointed. The Applicant challenged the decision by the Department not to shortlist her for the post.

6. It was common case that both the Applicant and the Second Respondent emanated from the same school, being Kharina Secondary. They were both post level 2 candidates. The union observers were present during the shortlisting process. Departmental resource persons were appointed to oversee the process and were present throughout the proceedings to ensure adherence to HRM 5. They declared the process to be free and fair.

7. It was common cause that the Applicant’s curriculum vitae (CV) was considered and scored by the members of the interview committee (IC) and she was thereafter ranked. The top five ranking and scoring incumbents were then interviewed in line with the applicable HRM. In this instance the Applicant had not acted in the post for a period exceeding twelve months hence she did not automatically qualify for shortlisting (for the post), as per clause 8.3 of HRM 5 of 2022.
APPLICANT’S CASE

8. Opening statement: Mr Rishal Juguth submitted that the Applicant challenged the appointment for the Deputy Principal post on the basis that the selection was unfair. Both the Applicant and the Second Respondent were employees at Kharina Secondary School. The Applicant and Second Respondent were post level 2 employees, which was at management level. The Applicant was a Departmental Head for 16 years whilst the Second Respondent was a Departmental Head for 8 years. After the conclusion of the shortlisting process, the Applicant lodged a grievance. It was submitted that the Applicant met the minimum criteria for the post as she had the inherent qualities for a Deputy Principal. The interview committee (IC) did not consider her expertise. The process was unfair as there was undue influence. The relief sought was the setting aside of the appointment and for the process to be re-done from shortlisting.

9. Applicant: She testified that her academic qualifications were a matric certificate, junior secondary education diploma, further diploma in education and part BCOM with accounting 2. She commenced teaching in 1984 and had 38 years’ experience at the time of the dispute. She started at Kharina Secondary School in 2007 and was the Department Head for Commerce, post level 2. She was in a post level 2 position for 18 years. She applied for post number 810 of HRM 5 of 2022. She was not shortlisted for the post, and believed that she ought to have been shortlisted as she acted as Deputy Principal for 13 months and acquired extensive managerial skills. Her appointment would have generated a positive impact on the school.

10. The Applicant stated that she executed all her duties. She believed that she was a suitable and capable candidate to fill the position of Deputy Principal. She acted as Deputy Principal during the period 2013/2014. She did not act for the advertised post but was not afforded the opportunity to fill the post, for reasons unknown to her. The Applicant applied to act in the disputed post and was interviewed on 22 March 2022 but was unsuccessful in her application.

11. She averred that she was underscored by the IC. The shortlisting took place on 18 June 2022 and on 15 June 2022 she had an unpleasant incident with Mr R Govender, the Principal and resource person. She was presented with three grievance letters and was asked to sign same. At about 2.20 pm she approached Govender and wanted to leave early, as she was unwell. He was abrupt and rude to her. He further commented, “see what we need to deal with”.

12. Resolution 11 of 1997 guided the shortlisting process. She said she met and exceeded all of the criteria. HRM circular number 5 of 2022, at 10.8 listed that the IC must ensure compliance and consider the ability of the candidates. She said her ability was not considered as she was in the profession for 38 years and a Departmental Head for 15 years. She also acted as a Deputy Principal for 13 months. She said the Second Respondent was in the department for 27 years and did not act as a Deputy Principal. She asserted she met the requirements and her CV was better than the Second Respondent hence she should have been shortlisted.

FIRST RESPONDENT’S CASE

13. Opening statement: Mr Daniso argued that the minimum requirement, as set out in HRM 5 of 2022 (for shortlisting) in a Deputy Principalship post, was five years. The Second Respondent was shortlisted on those grounds. The Applicant’s CV was subjected to shortlisting however she did not meet the set standard of the IC. There was no general right for her to be shortlisted. He argued that her claim was frivolous and should be dismissed.

14. The Second Respondent, Roopan, was called by the First Respondent. She confirmed that she applied for the post, in dispute, HRM 5. She was shortlisted, interviewed and appointed. The procedure manual for the post set out the minimum requirements, two of which being: teaching for five years and three to four years’ qualification. The She met the requirements and exceeded same as she not only had a four-year diploma but also honors in educational management.

15. Ravin Govender testified that he was the School Principal and the resource person for the disputed post. He attended a workshop for his role as the resource person and the SGB was also workshopped. The union attended the shortlisting process for post 810 and he informed the IC that he received 21 applications for the post and handed it to the IC. This was witnessed by the union observers. The criteria for the shortlisting was discussed by the IC and the secretary read out each CV, by way of a code, and not name. It was only the secretary of the IC that knew the names. The scoring members of the IC, then scored the CV’s, by completing the EHR 8, which was an assessment form. Once the CV’s were scored, the members of the IC engaged in discussion for consensus purpose. Even at this stage the CV’s were referred to by numbers, ie 1 to 21 and not names. Throughout the process the union was present to oversee the procedure.

16. The members of the IC and union signed the HER 8. At the end of the process the secretary matched the coded CV to the names of the candidates. The secretary then ranked the top 5 candidates. The EHR 9 was completed. There was no objection from the union in respect of the process. He said all of the 21 CVs, including the Applicant’s, was scored fairly, consistently and in the same manner.

ANALYSIS OF EVIDENCE AND ARGUMENT

17. This dispute was referred as an unfair labour practice, in respect of non-shortlisting. An employee who alleges that he or 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.

18. The Applicant is required to do more than just demonstrate that she has the minimum advertised qualifications and experience. She must allege and prove that the decision not to appoint her was unfair. This goes beyond mere unhappiness or a perception of unfairness. The issue of fairness depends on the circumstances of a particular case and essentially involves a value judgement.

19. The First Respondent advertised the position of Deputy Principal in terms of Circular, HRM 5/2022, post number 810. The Applicant applied and was not shortlisted. She claimed that she met the essential requirements and the First Respondent committed an unfair labour practice by not shortlisting her. A grievance was lodged in respect of the process.

20. The Applicant sought the setting aside the appointment of the Second Respondent and requested for the process to start afresh from shortlisting. The Applicant challenged the procedures that were followed in dealing with the shortlisting.

21. The onus rested on the Applicant to establish that the conduct of the First Respondent denied her a fair opportunity to compete for a post, alternatively that the conduct was arbitrary or motivated by an unacceptable reason. The arbitration of a promotion dispute does not entail a hearing de novo, but an assessment of the employer’s decision. I turn to the test as laid out in Sidumo v Rustenburg Platinum Mines Ltd & Others [2007] 12 BLLR 1097 (CC), which is a landmark case in South African labour law, wherein the Constitutional Court held that the test in promotion disputes, was that the arbitrator is not given the power to consider afresh what he or she would do, but to decide whether what the employer did was fair.

22. With that in mind, I turn to the facts in the present case. The Applicant stated that she had 38 years of service with the department and 15 years as a Departmental Head. She also served as an acting Deputy Principal. As part of the criteria her ability had to be considered in shortlisting. She stated that she met all the criteria. Her evidence in chief was articulate but she was unimpressive under cross examination. I found her to be evasive and oblique. She deliberately did not answer whether variances and tie breakers were used as part of shortlisting. The IC set out the criteria from the outset that was applied consistently and fairly to all candidates. The Applicant simply stated that the criteria, as per Resolution 11 of 1997, was not followed. In this regard she failed to elaborate on the grounds for non-compliance.

23. She went on to provide irrelevant evidence, in support of her claim of bias, and stated that the shortlisting took place on 18 June 2022 and on 15 June 2022 she had an unpleasant incident with Mr R Govender, who was the Principal of the school and resource person. She explained that on 15 June 2022 she was presented with three grievance letters and was asked to sign same. At about 2.20 pm, the same day, she approached Govender and wanted to leave early, for health reasons. His conduct was abrupt and rude and she claimed that it influenced the IC. This evidence was vague and irrelevant. It seemed to be an afterthought. She neglected to list the names of the members nor were they called as witnesses. In this regard I find that incident bore no relevance.

24. Under cross examination she confirmed that her score was 20, marked CV number 19. CV 17 had a score of 24. CV 14 and 15, scored 25. It was evident that the other candidates that scored higher than her and were also not shortlisted. The five highest performing candidates were shortlisted. SADTU was present and there was no objection raised by them. Govender, who was the school Principal and resource person testified in support of the First Respondent. He was forthright and articulate and presented his evidence in what I considered an honest manner. He was also credible. I make this finding as he did not expound his evidence and admitted that he was appointed as a school Principal and shortly thereafter was the resource person. He also confirmed that he resourced other posts, but did not exaggerate his experience.

25. Govender plainly, clearly and consistently stated that the process was fair. In this regard he stated the criteria for the shortlisting was discussed by the IC and the secretary read out each CV, by way of a code, and not name. After the scoring of the CVs the IC engaged in discussions, and even at that stage, names were not disclosed. Govender said throughout the process the union was present to oversee the procedure and there was no objection. It was only at the end of the process the secretary matched the coded CVs to the names of the candidates. Govender expressed that the CVs were scored fairly, consistently and in the same manner. I have no evidence that there was any form of bias or unfair treatment of the other candidates over the Applicant. Govender was new at the school and had no vendetta against the Applicant.

26. It is my finding that no evidence was adduced to demonstrate that the Applicant was deliberately underscored as no IC member had access to the CVs during the scoring. They were not able to identify which CV belonged to the Applicant as the CVs were coded with numbers. On these grounds, candidates were not treated with favour.

27. An arbitrator is not the employer and it is not my task to decide whether the employer has arrived at the correct decision. The role of the arbitrator is to oversee that the employer did not act unfairly towards the candidate that was not promoted. As I have previously stated the decision to promote or not to promote falls within the managerial prerogative of the employer. In the absence of gross unreasonableness or bad faith or where the decision relating to promotion is seriously flawed, such a decision should not easily be set aside.

28. I accept that the Applicant had far more experience than the Second Respondent but the courts have held that even if there was unfair conduct by an employer during a promotion process, this does not mean that there is substantive unfairness. Substantive unfairness cannot exist in abstraction. The Applicant needs to establish a causal connection between the irregularity or unfairness and the failure to promote, which means that, but for the irregularity or unfairness, she would have been appointed to the post, as laid out in Woolworths (Pty) Ltd v Whitehead (2000) 21 ILJ 571 (LAC). In the matter before me, I have no evidence that the Applicant was treated unfairly. The CVs were assessed and ranked and the highest scoring candidates were shortlisted. The Applicant was ranked number 19. The onus rested with the Applicant to establish unfairness, and it is my finding that she failed to do so.

AWARD:

29. I find that the First Respondent did not commit an unfair labour practice against the Applicant and the application is dismissed.


ELRC Commissioner: VEESLA SONI
Date : 10 SEPTEMBER 2024