ELRC515 -19/20EC
ELRC515 -19/20EC
Award Date:
ARBITRATION
AWARD
_____________________________________________________________________________________
Case Number: ELRC515 -19/20EC
Commissioner: MBULELO SAFA
Date of Award: 06 March 2021
In the ARBITRATION between: -
PERE THANDIKHAYA HAPPYBOY
Applicant
And
DEPARTMENT OF EDUCATION, EASTERN CAPE
1st RESPONDENT
MONWABISI KOTI
2nd Respondent
Applicant’s representative: Mr S. Modi
Applicant’s Address: S. Modi Attorneys, QUEENSTOWN
Telephone:
Telefax
E-mail Sithembelemodi@yahoo.com
1st Respondent’s Representative: Mr T. Mlahleni
1st Respondent’s Address: Department of Education,
Telephone
Telefax
E-mail : thobelanimlahleni@gmail.com
2nd Respondent Representative: Mr A Mhlontlo
2nd Respondent Address: NAPTOSA, Queenstown
Telephone :
Telefax :
Email : mhlontloaaron@gmail.com
DETAILS OF THE HEARING AND REPRESENTATION
1.The matter was set down for arbitration on the 30th November 2020, 14th January and 24 February 2021 on the virtual platform, Zoom.
2.The Applicant was represented by Mr Sithembele Modi of S. Modi Attorneys, the First Respondent was represented by Mr Thobelani Mlahleni and the Second Respondent was represented by Mr Aaron Mhlontlo from the union, NAPTOSA.
3.The proceedings were recorded on Zoom.
ISSUES TO BE DECIDED
4. Whether or not the decision of the First Respondent not to appoint the Applicant to the post of Principal of Nonesi SPS was substantively and procedurally fair, and make an appropriate award.
BACKGROUND TO THE ISSUE
5.The First Respondent advertised the post of the Principal of Nonesi SPS. The Applicant was one of the candidates who applied and was interviewed. However, the Applicant was not successful, instead the Second Respondent was and ultimately appointed.
6.Unhappy with the fact that he was not appointed the Applicant referred an Unfair Labour Practice dispute to ELRC. The dispute remained unresolved at conciliation and it was then referred to arbitration.
7.The relief sought by the Applicant is the setting aside of the promotion of the Second Respondent, have the interviews restarted by an independent panel.
SURVEY OF EVIDENCE AND ARGUMENT
8.The Applicant led evidence through one witness.
9.The First Respondent led evidence through one witness. Second Respondent did not lead evidence.
10.At the conclusion of the arbitration on the 24th February 2021 the parties were ordered to submit their written closing arguments by not later than 5th March 2021. By the end of the day on the 5th March 2021 until the award was issued only the Respondents had submitted their arguments.
APPLICANT’S EVEDENCE AND ARGUMENT
11.The Applicant testified that he applied for the post of the principal of Nonesi SPS and was invited to the interviews.
12.When he arrived at the venue of the interviews he was advised by the resource person, Mrs Masimini, that he was not invited to the interviews. An argument ensued between him and Mrs Masimini.
13.He testified that Mrs Masimini kept on provoking him during the argument.
14.Applicant informed Mrs Masimini that he was invited to the interviews through a telephone call. The Applicant went on to make a call to the number that called him. The call revealed that the cellphone number belonged to an educator at the school.
15.Ultimately the panel decided to interview him as the sixth candidate.
16.He testified that by the time he was called to the interview room he was so furious that he could not answer not a single question. He did not raise any objection about continuing with the interviews in his state and he never indicated to the panel that he was not emotionally ready. He stated that the panel was aware what the resource person did to him. He did not have any problem with the panel members, he only had a problem with the resource person.
17. After the interviews he lodged a grievance and was called to a grievance meeting. At the grievance meeting Mrs Masimini kept on telling him that he was given a chance. He wanted the process to be fair. In the grievance form he wanted the resource person and the panel to be changed.
18.He denied that that if he participated in the interviews he may have scored better marks from the panel, saying the panel had their candidate. He believed the interviews were unfair to him.
19.He was not told the reasons why he was not shortlisted. He believed that they called him and when they could not find him they replaced him with their friend.
20.When asked which legislation makes a provision for the independent panel he said it was the Employment Equity Act.
FIRST RESPONDENT’S EVIDENCE AND ARGUMENT
21.The first and only witness of the First Respondent was Mrs Nosipho Masimini who is employed by the first Respondent as the Education Development Officer(EDO) and was the resource person on the day of the interviews at Nonesi SPS.
22.She testified that the panel shortlisted five candidates and she called each one of them inviting them to the interviews. He informed each candidate that they were going to get their letters on the day of the interviews at the school.
23.On the date of the interviews she went out to call all the shortlisted candidates and directed them to the foyer where they were going to await their turns. She was calling them using their invitation letters which she had.
24.The Applicant was one of the candidates there but he did not have an invitation letter. She asked the Applicant if he was invited and his response was in affirmative. Applicant explained that he received a missed call and when he returned it the person he talked to said he(Applicant) was invited to the interviews. He did not know the person he talked to on the phone. When she showed her number to the Applicant he said it was not the number that called him.
25.The number was traced to another educator at the school. The educator denied ever communicating with the Applicant but said her cellphone was at some stage borrowed by someone else she could not remember.
26.As she was talking to the Applicant he was furious and wanting to get inside the foyer. She believed that the Applicant was not supposed to pop up at the interviews without being invited.
27.She was not aware how the Applicant got to know about the interviews but the Applicant himself said he got a call from someone he did not know. None of the members of the interview committee(panel) knew how the Applicant was in the interviews. One member of the panel, Mrs Vellem, stated in the meeting that she spoke to someone on the cellphone of another educator where she confirmed the interviews. She did not know who the caller was. Mrs Vellem stated that she also did not invite the Applicant to the interviews.
28.Witness testified that it was strange that somebody just show up at the interviews without being invited. There were other candidates who were not shortlisted but it was the Applicant only who showed up. The Applicant was not shortlisted because he did not meet some of the shortlisting criteria more especially those pertaining to his post level as they shortlisted educators on post level four and the Applicant was on post level two.
29.The interview committee resolved to interview the Applicant as the sixth candidate. The Applicant agreed to be interviewed but requested to be the last candidate to be interviewed so that he can have time to cool down after the altercation. She admitted that the decision to interview the Applicant was a compromise. She said the procedure was that five candidates must be shortlisted but the interview committee can resolve to have more or less candidates depending on the circumstances. She made an example where the candidates were tied in all shortlisting criteria.
30.When the Applicant was ultimately called to the interview he did not respond to any of the questions put to him except the first question. When asked a question he would just say the next question must be asked. At the end of the interviews he was asked if the process was fair he did not raise any complaint or objection. She conceded that the debacle before the interviews may have disturbed and frustrated the Applicant but he(Applicant) said he would be ready when his turn came and he did not raise any objection. If the Applicant was disturbed as he claims he would not have responded to the first question.
31.She did not find it strange that the Applicant could not respond to questions as she had experienced it in two other interviews before. She admitted that in those interviews there were no issues.
32.Witness stated that she would be frustrated if she was told that she was not supposed to have attended the interviews, if she was invited.
33.A day after the interviews the witness together with the interview committee were called to the Labour Relation’s Office of the First Respondent where a meeting was to be held about the complaint/grievance of the Applicant.
34.In that meeting it was resolved that the interviews be restarted and that a new resource person be identified either than the witness. The Applicant later changed to say he wanted the whole panel to be removed and an independent panel be constituted.
ANALYSIS OF EVIDENCE AND ARGUMENT
35. This dispute was referred as an unfair labour practice dispute related to promotion in terms of section 186(2)(a) of the Labour Relations Act(LRA). The Labour Court in Buffalo City Public FET College v CCMA and Others (P 372/12) [2016] ZALCPC 18 held that in unfair labour practice disputes, particularly in those relating to promotions, the onus is on the Employee to prove that he or she is a suitable and better candidate for the position.
36.Clause G of the Guidelines in ELRC Resolution 3 of 2016 provides the guide on how an arbitrator must approach substantive issues when dealing with promotion disputes.
37.In particular clause G (38) of the Resolution provides that the arbitrator or the court is not the employer. Their role is not to decide whether the employer has arrived at the correct decision but to oversee whether the employer has not acted unfairly towards a candidate that was supposed to be promoted.
38.Clause B.5.6 of Personnel Administrative Measures (PAM) envisages that the process of appointment / promotion starts with shortlisting, the interviews of the shortlisted candidates and the ranking of candidates in order of preference for recommendation to the School Governing Body(SGB).
39.Mrs Masimini, for the First Respondent, testified that the Applicant was not shortlisted for the post and was also not invited to the interviews. The Applicant also testified that he was advised by Mrs Masimini that he was not shortlisted. He went on to testify that he went to the interviews on the strength of a missed call he saw on his cellphone and which he said was coming from someone he did not know. This is not the correct and formal way to be invited to the interviews.
40.The onus was on the Applicant to prove in this arbitration that he was indeed shortlisted and invited the interviews by somebody who had been duly mandated by the interview committee(panel). The Applicant did not discharge his onus of proof in this point.
41.It is consequently my finding that the Applicant was not shortlisted for the post and the decision of the panel to interview him was unlawful. The subsequent decision of the First Respondent in their grievance meeting to restart the employment process with the Applicant being one of the candidates to be interviewed was also not lawful as the Applicant was never shortlisted for the post.
42.It needs to be stated that in this dispute the Applicant is not disputing the fact that he was not shortlisted. It it was the case the argument would be whether the decision of the panel not to shortlist him was fair or not.
43.During cross examination Mrs Masimini testified that the decision of the panel to interview the Applicant was a compromise. Mrs Masimini further testified that according to her the panel was allowed to shortlist more than five candidates for the post if circumstances permit.
44.Paragraph B.5.6.7 of the PAM provides that, “The list of short-listed candidates for interview purposes should not exceed five per post.” This paragraph clearly states that the shortlisted candidates should not be more than five. This shows that the explanation of Mrs Masimini that the panel had a discretion to shortlist more than five candidates is flawed and cannot be sustained.
45.Thus the decision of the panel to add the Applicant as the sixth candidate was against the provisions of PAM and hence unlawful.
46.The conduct of the Applicant on the day of the interviews is not beyond reproach. On being told by Mrs Masimini, whom he knew was the resource person representing the First Respondent, that he was not shortlisted, the Applicant should have respected the process and the decision rather than engaging in an altercation with her (Mrs Masimini). If he was not happy with not being shortlisted the Applicant had a recourse of lodging a grievance with the First Respondent and/or referring a dispute to the ELRC.
47. Applicant ultimately had his way and a compromise was made by the panel to interview him and it was agreed with him that he was going to be the last candidate to be interviewed. When his turn came the Applicant elected not to respond to the questions posed to him, instead asked the interviewer to proceed to the next question after each question. This conduct by the Applicant was fatal to his ambitions of ever winning the interviews.
48.The argument of the Applicant that he was emotionally disturbed and not able to perform at the interviews is improbable because the Applicant stated it himself at cross-examination that he agreed to be interviewed as the sixth and last candidate so as to allow him time to emotionally settle down. Further at cross-examination he testified that he did not complain that he was not ready to proceed with the interviews when his turn came.
49.The Labour Court in Arries v CCMA and Others (2006) 27 ILJ 2324 (LC) held that there are limited grounds on which the commissioner or court may interfere with the discretion that has been exercised by a party competent to exercise that discretion. The court further held that the discretion of the Employer can only be interfered with if it is found to have been exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner.
50.In this dispute the findings are that the process of promoting the Second Respondent was conducted substantively and procedurally fair and the discretion of the First Respondent was exercised in a fair manner.
96.My findings are that in this dispute the Applicant could not discharge his onus to prove that there was unfairness on the part of the First respondent which warrants an interference by me in this award.
In the circumstances I hereby issue the following award;
AWARD
97.The promotion process of the Second Respondent was substantively and procedurally fair and hence this application fails.
98.The Applicant is not entitled to the relief she sought.
_____________________________
Mbulelo Safa : ELRC Panelist
AWARD
_____________________________________________________________________________________
Case Number: ELRC515 -19/20EC
Commissioner: MBULELO SAFA
Date of Award: 06 March 2021
In the ARBITRATION between: -
PERE THANDIKHAYA HAPPYBOY
Applicant
And
DEPARTMENT OF EDUCATION, EASTERN CAPE
1st RESPONDENT
MONWABISI KOTI
2nd Respondent
Applicant’s representative: Mr S. Modi
Applicant’s Address: S. Modi Attorneys, QUEENSTOWN
Telephone:
Telefax
E-mail Sithembelemodi@yahoo.com
1st Respondent’s Representative: Mr T. Mlahleni
1st Respondent’s Address: Department of Education,
Telephone
Telefax
E-mail : thobelanimlahleni@gmail.com
2nd Respondent Representative: Mr A Mhlontlo
2nd Respondent Address: NAPTOSA, Queenstown
Telephone :
Telefax :
Email : mhlontloaaron@gmail.com
DETAILS OF THE HEARING AND REPRESENTATION
1.The matter was set down for arbitration on the 30th November 2020, 14th January and 24 February 2021 on the virtual platform, Zoom.
2.The Applicant was represented by Mr Sithembele Modi of S. Modi Attorneys, the First Respondent was represented by Mr Thobelani Mlahleni and the Second Respondent was represented by Mr Aaron Mhlontlo from the union, NAPTOSA.
3.The proceedings were recorded on Zoom.
ISSUES TO BE DECIDED
4. Whether or not the decision of the First Respondent not to appoint the Applicant to the post of Principal of Nonesi SPS was substantively and procedurally fair, and make an appropriate award.
BACKGROUND TO THE ISSUE
5.The First Respondent advertised the post of the Principal of Nonesi SPS. The Applicant was one of the candidates who applied and was interviewed. However, the Applicant was not successful, instead the Second Respondent was and ultimately appointed.
6.Unhappy with the fact that he was not appointed the Applicant referred an Unfair Labour Practice dispute to ELRC. The dispute remained unresolved at conciliation and it was then referred to arbitration.
7.The relief sought by the Applicant is the setting aside of the promotion of the Second Respondent, have the interviews restarted by an independent panel.
SURVEY OF EVIDENCE AND ARGUMENT
8.The Applicant led evidence through one witness.
9.The First Respondent led evidence through one witness. Second Respondent did not lead evidence.
10.At the conclusion of the arbitration on the 24th February 2021 the parties were ordered to submit their written closing arguments by not later than 5th March 2021. By the end of the day on the 5th March 2021 until the award was issued only the Respondents had submitted their arguments.
APPLICANT’S EVEDENCE AND ARGUMENT
11.The Applicant testified that he applied for the post of the principal of Nonesi SPS and was invited to the interviews.
12.When he arrived at the venue of the interviews he was advised by the resource person, Mrs Masimini, that he was not invited to the interviews. An argument ensued between him and Mrs Masimini.
13.He testified that Mrs Masimini kept on provoking him during the argument.
14.Applicant informed Mrs Masimini that he was invited to the interviews through a telephone call. The Applicant went on to make a call to the number that called him. The call revealed that the cellphone number belonged to an educator at the school.
15.Ultimately the panel decided to interview him as the sixth candidate.
16.He testified that by the time he was called to the interview room he was so furious that he could not answer not a single question. He did not raise any objection about continuing with the interviews in his state and he never indicated to the panel that he was not emotionally ready. He stated that the panel was aware what the resource person did to him. He did not have any problem with the panel members, he only had a problem with the resource person.
17. After the interviews he lodged a grievance and was called to a grievance meeting. At the grievance meeting Mrs Masimini kept on telling him that he was given a chance. He wanted the process to be fair. In the grievance form he wanted the resource person and the panel to be changed.
18.He denied that that if he participated in the interviews he may have scored better marks from the panel, saying the panel had their candidate. He believed the interviews were unfair to him.
19.He was not told the reasons why he was not shortlisted. He believed that they called him and when they could not find him they replaced him with their friend.
20.When asked which legislation makes a provision for the independent panel he said it was the Employment Equity Act.
FIRST RESPONDENT’S EVIDENCE AND ARGUMENT
21.The first and only witness of the First Respondent was Mrs Nosipho Masimini who is employed by the first Respondent as the Education Development Officer(EDO) and was the resource person on the day of the interviews at Nonesi SPS.
22.She testified that the panel shortlisted five candidates and she called each one of them inviting them to the interviews. He informed each candidate that they were going to get their letters on the day of the interviews at the school.
23.On the date of the interviews she went out to call all the shortlisted candidates and directed them to the foyer where they were going to await their turns. She was calling them using their invitation letters which she had.
24.The Applicant was one of the candidates there but he did not have an invitation letter. She asked the Applicant if he was invited and his response was in affirmative. Applicant explained that he received a missed call and when he returned it the person he talked to said he(Applicant) was invited to the interviews. He did not know the person he talked to on the phone. When she showed her number to the Applicant he said it was not the number that called him.
25.The number was traced to another educator at the school. The educator denied ever communicating with the Applicant but said her cellphone was at some stage borrowed by someone else she could not remember.
26.As she was talking to the Applicant he was furious and wanting to get inside the foyer. She believed that the Applicant was not supposed to pop up at the interviews without being invited.
27.She was not aware how the Applicant got to know about the interviews but the Applicant himself said he got a call from someone he did not know. None of the members of the interview committee(panel) knew how the Applicant was in the interviews. One member of the panel, Mrs Vellem, stated in the meeting that she spoke to someone on the cellphone of another educator where she confirmed the interviews. She did not know who the caller was. Mrs Vellem stated that she also did not invite the Applicant to the interviews.
28.Witness testified that it was strange that somebody just show up at the interviews without being invited. There were other candidates who were not shortlisted but it was the Applicant only who showed up. The Applicant was not shortlisted because he did not meet some of the shortlisting criteria more especially those pertaining to his post level as they shortlisted educators on post level four and the Applicant was on post level two.
29.The interview committee resolved to interview the Applicant as the sixth candidate. The Applicant agreed to be interviewed but requested to be the last candidate to be interviewed so that he can have time to cool down after the altercation. She admitted that the decision to interview the Applicant was a compromise. She said the procedure was that five candidates must be shortlisted but the interview committee can resolve to have more or less candidates depending on the circumstances. She made an example where the candidates were tied in all shortlisting criteria.
30.When the Applicant was ultimately called to the interview he did not respond to any of the questions put to him except the first question. When asked a question he would just say the next question must be asked. At the end of the interviews he was asked if the process was fair he did not raise any complaint or objection. She conceded that the debacle before the interviews may have disturbed and frustrated the Applicant but he(Applicant) said he would be ready when his turn came and he did not raise any objection. If the Applicant was disturbed as he claims he would not have responded to the first question.
31.She did not find it strange that the Applicant could not respond to questions as she had experienced it in two other interviews before. She admitted that in those interviews there were no issues.
32.Witness stated that she would be frustrated if she was told that she was not supposed to have attended the interviews, if she was invited.
33.A day after the interviews the witness together with the interview committee were called to the Labour Relation’s Office of the First Respondent where a meeting was to be held about the complaint/grievance of the Applicant.
34.In that meeting it was resolved that the interviews be restarted and that a new resource person be identified either than the witness. The Applicant later changed to say he wanted the whole panel to be removed and an independent panel be constituted.
ANALYSIS OF EVIDENCE AND ARGUMENT
35. This dispute was referred as an unfair labour practice dispute related to promotion in terms of section 186(2)(a) of the Labour Relations Act(LRA). The Labour Court in Buffalo City Public FET College v CCMA and Others (P 372/12) [2016] ZALCPC 18 held that in unfair labour practice disputes, particularly in those relating to promotions, the onus is on the Employee to prove that he or she is a suitable and better candidate for the position.
36.Clause G of the Guidelines in ELRC Resolution 3 of 2016 provides the guide on how an arbitrator must approach substantive issues when dealing with promotion disputes.
37.In particular clause G (38) of the Resolution provides that the arbitrator or the court is not the employer. Their role is not to decide whether the employer has arrived at the correct decision but to oversee whether the employer has not acted unfairly towards a candidate that was supposed to be promoted.
38.Clause B.5.6 of Personnel Administrative Measures (PAM) envisages that the process of appointment / promotion starts with shortlisting, the interviews of the shortlisted candidates and the ranking of candidates in order of preference for recommendation to the School Governing Body(SGB).
39.Mrs Masimini, for the First Respondent, testified that the Applicant was not shortlisted for the post and was also not invited to the interviews. The Applicant also testified that he was advised by Mrs Masimini that he was not shortlisted. He went on to testify that he went to the interviews on the strength of a missed call he saw on his cellphone and which he said was coming from someone he did not know. This is not the correct and formal way to be invited to the interviews.
40.The onus was on the Applicant to prove in this arbitration that he was indeed shortlisted and invited the interviews by somebody who had been duly mandated by the interview committee(panel). The Applicant did not discharge his onus of proof in this point.
41.It is consequently my finding that the Applicant was not shortlisted for the post and the decision of the panel to interview him was unlawful. The subsequent decision of the First Respondent in their grievance meeting to restart the employment process with the Applicant being one of the candidates to be interviewed was also not lawful as the Applicant was never shortlisted for the post.
42.It needs to be stated that in this dispute the Applicant is not disputing the fact that he was not shortlisted. It it was the case the argument would be whether the decision of the panel not to shortlist him was fair or not.
43.During cross examination Mrs Masimini testified that the decision of the panel to interview the Applicant was a compromise. Mrs Masimini further testified that according to her the panel was allowed to shortlist more than five candidates for the post if circumstances permit.
44.Paragraph B.5.6.7 of the PAM provides that, “The list of short-listed candidates for interview purposes should not exceed five per post.” This paragraph clearly states that the shortlisted candidates should not be more than five. This shows that the explanation of Mrs Masimini that the panel had a discretion to shortlist more than five candidates is flawed and cannot be sustained.
45.Thus the decision of the panel to add the Applicant as the sixth candidate was against the provisions of PAM and hence unlawful.
46.The conduct of the Applicant on the day of the interviews is not beyond reproach. On being told by Mrs Masimini, whom he knew was the resource person representing the First Respondent, that he was not shortlisted, the Applicant should have respected the process and the decision rather than engaging in an altercation with her (Mrs Masimini). If he was not happy with not being shortlisted the Applicant had a recourse of lodging a grievance with the First Respondent and/or referring a dispute to the ELRC.
47. Applicant ultimately had his way and a compromise was made by the panel to interview him and it was agreed with him that he was going to be the last candidate to be interviewed. When his turn came the Applicant elected not to respond to the questions posed to him, instead asked the interviewer to proceed to the next question after each question. This conduct by the Applicant was fatal to his ambitions of ever winning the interviews.
48.The argument of the Applicant that he was emotionally disturbed and not able to perform at the interviews is improbable because the Applicant stated it himself at cross-examination that he agreed to be interviewed as the sixth and last candidate so as to allow him time to emotionally settle down. Further at cross-examination he testified that he did not complain that he was not ready to proceed with the interviews when his turn came.
49.The Labour Court in Arries v CCMA and Others (2006) 27 ILJ 2324 (LC) held that there are limited grounds on which the commissioner or court may interfere with the discretion that has been exercised by a party competent to exercise that discretion. The court further held that the discretion of the Employer can only be interfered with if it is found to have been exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner.
50.In this dispute the findings are that the process of promoting the Second Respondent was conducted substantively and procedurally fair and the discretion of the First Respondent was exercised in a fair manner.
96.My findings are that in this dispute the Applicant could not discharge his onus to prove that there was unfairness on the part of the First respondent which warrants an interference by me in this award.
In the circumstances I hereby issue the following award;
AWARD
97.The promotion process of the Second Respondent was substantively and procedurally fair and hence this application fails.
98.The Applicant is not entitled to the relief she sought.
_____________________________
Mbulelo Safa : ELRC Panelist