PSES486-17/18
PSES486-17/18
Award Date:
6 June 2018
Case Number: PSES486-17/18
Province: Gauteng
Applicant: Sadtu obo Mpaneng Khomotso
Respondent: 1st Respondent Department of Education, 2nd Respondent Mr Treasure Mbhalati
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Department of Education Offices, Pretoria.
Award Date: 6 June 2018
Arbitrator: Paul Phundu
Panellist: Paul Phundu
Case No: PSES486-17/18
Date of Award: 6 June 2018
In the matter between:
SADTU obo Mpaneng Khomotso APPLICANT
And
Gauteng Department of Education: 1ST RESPONDENT
Mrs Treasure Mbhalati 2nd RESPONDENT
Union/Applicant’s representative: Mr Sam Manhike (SADTU Official)
Union/Applicant’s address:
112 Inner Crescent Street
Kwaggasrand 0183
Fax: 086 732 0773
Respondent’s representative: Ms W. Bodiba
Respondent’s address:
Tshwane South District
Tshwane
Telephone: 012 401 6440
DETAILS OF HEARING AND REPRESENTATION
[1] This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) and herein after referred to as the LRA. The matter was set-down for arbitration in terms of Section 191(5) (a) of the LRA.
[2] The arbitration hearing was conducted on 17 January and 21 May 2018 at the Department of Education Offices, Pretoria.
[3] The Applicant was present at the arbitration hearing and was represented by, Mr Sam Manhike, Union Official from SADTU.The Respondent was represented by, Ms W Bodibe, its Employee Relations Official.
[4] The award is issued in terms of section 138 (7) of the Act.
[5] Bundle of documents marked annexure “RA and RB” were admitted into evidence and the content was not disputed.
[6] The proceedings were digitally recorded. I have also kept handwritten notes.
[7] Both parties submitted written heads of arguments on 29 May 2018.
ISSUE TO BE DECIDED
[8] I am required to establish whether the respondent committed an unfair labour practice in relation to promotion or not, if so, I must determine the appropriate remedy.
BACKGROUND TO THE ISSUE
[9] It is common cause that the Applicant is presently employed at Philena Primary School as a post level 1 Educator. She applied for a level 2 position (HOD) in May 2017. She was shortlisted and attended an interview. She was unsuccessful. The second Respondent was the successful candidate and was appointed onto post level 2 (HOD) on 01 September 2017.
[10] It is also common cause that both the applicant and the incumbent of the position met the minimum requirements of the post.
[11] The Applicant declared a dispute with the Bargaining Council alleging that she was the best of all the candidates in terms of qualifications, experience and other related skills. She further alleged that she performed better than the incumbent during the interviews.
[12] Conciliation failed and a certificate of non-resolution of the dispute was issued. The matter proceeded to arbitration. In terms of relief, the Applicant prayed for promotion.
SURVEY OF ARGUMENTS AND EVIDENCE
Argument for the Applicant
[13] The Applicant had one witness who testified in support of her case. Her evidence was briefly as follows:
[14] Mrs Khomotso Mpaneng testified under oath that she is employed by the respondent as a level 1 Educator at Philena Primary School. The applicant stated that she possesses the qualifications, skills and experience required in the position of HOD post level 2. She worked with a publishing company. She facilitated ECD foundation courses, helping learners and compiling profiles for learners. She acted in the position of HOD level 2. During the interviews she performed better and she rated herself the best candidate. The applicant further stated that she has 18 years’ experience in teaching and she answered fully all the questions during the interview process. She is highly qualified than the successful candidate.
[15] Under cross-examination the applicant confirmed that the 2nd Respondent has 8 years’ experience in teaching and she also acted in post level 2 (HOD) before. The applicant did not dispute that she has 6 skills set whilst the 2nd Respondent has 15 skills set. She confirmed that she was number two and the 2nd Respondent was number one in terms of the scores by the interview panel.
[16] Ms Grace Mmako testified under oath that she is employed by the respondent as an Educator and she is the SADTU Branch Convener. She sat in the interviews as an observer. In her view, the applicant was the best candidate. She substantiated all her answers while others failed to do so.
[17] Under cross-examination the applicant’s witness confirmed that the applicant was her preferred choice. She confirmed that her role was that of an observer and her feelings did not count. She further confirmed that the 2nd Respondent was the highest scored candidate.
Argument for the Respondent
[18] The respondent had one witness in support of its case. The evidence was briefly as follows:
[19] Mr David Mogashoa testified under oath that he is the Principal at Philema Primary School. As a Principal, one of his roles is to oversee the process of interviews and recommendations by the School Governing Body. The respondent advertised a position of “Head of Department-Foundation Phase in year 2017. The Applicant and the 2nd Respondent applied for the position and were shortlisted. The interview panel consisted of five panellists. The role of the panel was to score the potential candidates and come up with the best candidates for the position. Ms Treasure Mbhalati scored the highest score and was rated number one. The Applicant had the second highest score and was rated number two. Ms P Maswanganyi had the third highest score and was rated number three. These names were submitted to the Office of the Head of Department for appointment. The panel recommended the name of Mrs Treasure Mbhalati for appointment because she was the best candidate amongst the three candidates. The second Respondent was the successful candidate and the Head of Department confirmed Mrs Treasure Mbhalati’s appointment. In arriving at the decision to recommend and subsequently appoint, the Respondent looked at the relevance of the candidates’ qualifications, skills and experience. Not only did the 2nd Respondent meet the requirements of the position, it was also found that she had the most relevant qualifications, skills and experience which matched the advertised position. Moreover, in the interviews, she performed better than the other two candidates. The applicant had more experience in intermediate phase which was not relevant to the requirements of the advertised position. The 2nd Respondent had more skills in the foundation phase than the applicant. The applicant’s skills were more on intermediate phase and universities which made her skills and experience irrelevant to the advertised position. The applicant possesses Honours and Master’s degree in Psychology. These qualifications are not relevant to the advertised post. The 2nd Respondent has a BED Honours degree in Education Management, Diploma in Teaching and has been teaching in foundation phase from Grade R.
[20] Under cross-examination the respondent confirmed that the 2nd Respondent teaching in the foundation phase for the past 7 years. The panellists were independent in the manner in which they scored the candidates and the 2nd Respondent was the best candidate. The panel deliberated on all the candidates’ skills, experience and qualifications. Ultimately the decision was unanimous and the 2nd Respondent was the more relevant and qualified hence she was recommended for appointment. Ms Mbalati has management skills at Primary School. The applicant thought only for 3 years at Primary School whilst the applicant thought for 7 years.
ANALYSIS OF EVIDENCE AND ARGUMENT
[21] In terms of Section 186(2) (a) of the LRA, promotion of an employee falls within the meaning of an “unfair labour practise”. section 186(2) provides that; (i) “unfair labour practice” means an unfair act or omission that arises between an employer and employee involving – (ii) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee”. The onus is on the applicant to prove, on a balance of probabilities, an unfair act or omission on the part of the respondent that gives rise to an unfair labour practise.
[22] The dispute was referred as an allegation of an unfair labour practice in relation to promotion. I am therefore required to determine whether the respondent’s conduct was unfair in not appointing the applicant, to succeed in such a claim, the applicant must show that the respondent’s conduct was arbitrary, capricious and therefore unfair.
[23] In this matter the applicant challenged her non-appointment to the position of the Head of Department – Foundation Phase arguing that the 1st Respondent’s conduct was unfair under the circumstances.
[24] I am not persuaded by the applicant’s argument that she performed better than the other candidates. The reason I say so is because the applicant failed to answer a question when it was put to her if she was present when the other candidates were assessed during the interviews. She conceded that she was not present and therefore could not observe the performance of the other candidates. It is on this basis that I find it improbable that she performed better than the other candidates. It is my finding that both the applicant and the 2nd Respondent met the requirements of the position. Thus, it is my finding that the 2nd Respondent qualified for the position of HOD, post level 2. The applicant also did not dispute the fact that the second Respondent has extensive experience in foundation phase teaching. The applicant did not dispute that the applicant had more skills set than her. It is my finding that the applicant failed to prove that she was underscored and the 2nd Respondent was overscored. I am persuaded that the applicant’s skills were more on intermediate phase and universities which made her skills and experience irrelevant to the advertised position.
[25] The applicant’s witness, Ms Grace Mmako, is entitled to her view or opinion of the proceedings. However, what counts is the scoring of the properly constituted panel. Therefore, I attach no weight to the view of Ms Grace Mmako. I am convinced that each panel member had scored each candidate individually without influence and this was an indication that the interview process was fair and transparent.
[26] I am convinced that the 2nd Respondent was the best candidate for the position. I accept the 1st Respondent’s argument that the 2nd Respondent performed better than the other two candidates. It is further my finding that the 1st Respondent’s discretion to appoint the 2nd Respondent was not exercised capriciously, or based upon any wrong principle or in a biased manner.
[27] In Aries v CCMA & others (2006) 27 ILJ 2324 (LC) the Court held that “there are limited grounds on which an arbitrator, or a court, may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. The court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner”.
[28] In view of the above judgement, and the reasons mentioned above, I am inclined not to interfere with the decision of the 1st Respondent in not appointing the Applicant.
[29] In light of the above, I am convinced that the decision to promote the 2nd Respondent to the position of the HOD post level 2 was the correct one. It is my finding that the Applicant failed to discharge the onus of proving her non-promotion was unfair on a balance of probabilities.
[30] I therefore make the following award:
AWARD
[31] The Applicant, (Mrs Khomotso Mpaneng) has not discharged the onus to show that the Respondent has committed an unfair labour practice in relation to promotion.
[32] The Applicant’s referral of a dispute is dismissed.
[33] There is no order as to costs.
ELRC PANELLIST: PAUL PHUNDU
Province: Gauteng
Applicant: Sadtu obo Mpaneng Khomotso
Respondent: 1st Respondent Department of Education, 2nd Respondent Mr Treasure Mbhalati
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Department of Education Offices, Pretoria.
Award Date: 6 June 2018
Arbitrator: Paul Phundu
Panellist: Paul Phundu
Case No: PSES486-17/18
Date of Award: 6 June 2018
In the matter between:
SADTU obo Mpaneng Khomotso APPLICANT
And
Gauteng Department of Education: 1ST RESPONDENT
Mrs Treasure Mbhalati 2nd RESPONDENT
Union/Applicant’s representative: Mr Sam Manhike (SADTU Official)
Union/Applicant’s address:
112 Inner Crescent Street
Kwaggasrand 0183
Fax: 086 732 0773
Respondent’s representative: Ms W. Bodiba
Respondent’s address:
Tshwane South District
Tshwane
Telephone: 012 401 6440
DETAILS OF HEARING AND REPRESENTATION
[1] This is an arbitration award issued in terms of Section 138 of the Labour Relations Act 66 of 1995 (as amended) and herein after referred to as the LRA. The matter was set-down for arbitration in terms of Section 191(5) (a) of the LRA.
[2] The arbitration hearing was conducted on 17 January and 21 May 2018 at the Department of Education Offices, Pretoria.
[3] The Applicant was present at the arbitration hearing and was represented by, Mr Sam Manhike, Union Official from SADTU.The Respondent was represented by, Ms W Bodibe, its Employee Relations Official.
[4] The award is issued in terms of section 138 (7) of the Act.
[5] Bundle of documents marked annexure “RA and RB” were admitted into evidence and the content was not disputed.
[6] The proceedings were digitally recorded. I have also kept handwritten notes.
[7] Both parties submitted written heads of arguments on 29 May 2018.
ISSUE TO BE DECIDED
[8] I am required to establish whether the respondent committed an unfair labour practice in relation to promotion or not, if so, I must determine the appropriate remedy.
BACKGROUND TO THE ISSUE
[9] It is common cause that the Applicant is presently employed at Philena Primary School as a post level 1 Educator. She applied for a level 2 position (HOD) in May 2017. She was shortlisted and attended an interview. She was unsuccessful. The second Respondent was the successful candidate and was appointed onto post level 2 (HOD) on 01 September 2017.
[10] It is also common cause that both the applicant and the incumbent of the position met the minimum requirements of the post.
[11] The Applicant declared a dispute with the Bargaining Council alleging that she was the best of all the candidates in terms of qualifications, experience and other related skills. She further alleged that she performed better than the incumbent during the interviews.
[12] Conciliation failed and a certificate of non-resolution of the dispute was issued. The matter proceeded to arbitration. In terms of relief, the Applicant prayed for promotion.
SURVEY OF ARGUMENTS AND EVIDENCE
Argument for the Applicant
[13] The Applicant had one witness who testified in support of her case. Her evidence was briefly as follows:
[14] Mrs Khomotso Mpaneng testified under oath that she is employed by the respondent as a level 1 Educator at Philena Primary School. The applicant stated that she possesses the qualifications, skills and experience required in the position of HOD post level 2. She worked with a publishing company. She facilitated ECD foundation courses, helping learners and compiling profiles for learners. She acted in the position of HOD level 2. During the interviews she performed better and she rated herself the best candidate. The applicant further stated that she has 18 years’ experience in teaching and she answered fully all the questions during the interview process. She is highly qualified than the successful candidate.
[15] Under cross-examination the applicant confirmed that the 2nd Respondent has 8 years’ experience in teaching and she also acted in post level 2 (HOD) before. The applicant did not dispute that she has 6 skills set whilst the 2nd Respondent has 15 skills set. She confirmed that she was number two and the 2nd Respondent was number one in terms of the scores by the interview panel.
[16] Ms Grace Mmako testified under oath that she is employed by the respondent as an Educator and she is the SADTU Branch Convener. She sat in the interviews as an observer. In her view, the applicant was the best candidate. She substantiated all her answers while others failed to do so.
[17] Under cross-examination the applicant’s witness confirmed that the applicant was her preferred choice. She confirmed that her role was that of an observer and her feelings did not count. She further confirmed that the 2nd Respondent was the highest scored candidate.
Argument for the Respondent
[18] The respondent had one witness in support of its case. The evidence was briefly as follows:
[19] Mr David Mogashoa testified under oath that he is the Principal at Philema Primary School. As a Principal, one of his roles is to oversee the process of interviews and recommendations by the School Governing Body. The respondent advertised a position of “Head of Department-Foundation Phase in year 2017. The Applicant and the 2nd Respondent applied for the position and were shortlisted. The interview panel consisted of five panellists. The role of the panel was to score the potential candidates and come up with the best candidates for the position. Ms Treasure Mbhalati scored the highest score and was rated number one. The Applicant had the second highest score and was rated number two. Ms P Maswanganyi had the third highest score and was rated number three. These names were submitted to the Office of the Head of Department for appointment. The panel recommended the name of Mrs Treasure Mbhalati for appointment because she was the best candidate amongst the three candidates. The second Respondent was the successful candidate and the Head of Department confirmed Mrs Treasure Mbhalati’s appointment. In arriving at the decision to recommend and subsequently appoint, the Respondent looked at the relevance of the candidates’ qualifications, skills and experience. Not only did the 2nd Respondent meet the requirements of the position, it was also found that she had the most relevant qualifications, skills and experience which matched the advertised position. Moreover, in the interviews, she performed better than the other two candidates. The applicant had more experience in intermediate phase which was not relevant to the requirements of the advertised position. The 2nd Respondent had more skills in the foundation phase than the applicant. The applicant’s skills were more on intermediate phase and universities which made her skills and experience irrelevant to the advertised position. The applicant possesses Honours and Master’s degree in Psychology. These qualifications are not relevant to the advertised post. The 2nd Respondent has a BED Honours degree in Education Management, Diploma in Teaching and has been teaching in foundation phase from Grade R.
[20] Under cross-examination the respondent confirmed that the 2nd Respondent teaching in the foundation phase for the past 7 years. The panellists were independent in the manner in which they scored the candidates and the 2nd Respondent was the best candidate. The panel deliberated on all the candidates’ skills, experience and qualifications. Ultimately the decision was unanimous and the 2nd Respondent was the more relevant and qualified hence she was recommended for appointment. Ms Mbalati has management skills at Primary School. The applicant thought only for 3 years at Primary School whilst the applicant thought for 7 years.
ANALYSIS OF EVIDENCE AND ARGUMENT
[21] In terms of Section 186(2) (a) of the LRA, promotion of an employee falls within the meaning of an “unfair labour practise”. section 186(2) provides that; (i) “unfair labour practice” means an unfair act or omission that arises between an employer and employee involving – (ii) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee”. The onus is on the applicant to prove, on a balance of probabilities, an unfair act or omission on the part of the respondent that gives rise to an unfair labour practise.
[22] The dispute was referred as an allegation of an unfair labour practice in relation to promotion. I am therefore required to determine whether the respondent’s conduct was unfair in not appointing the applicant, to succeed in such a claim, the applicant must show that the respondent’s conduct was arbitrary, capricious and therefore unfair.
[23] In this matter the applicant challenged her non-appointment to the position of the Head of Department – Foundation Phase arguing that the 1st Respondent’s conduct was unfair under the circumstances.
[24] I am not persuaded by the applicant’s argument that she performed better than the other candidates. The reason I say so is because the applicant failed to answer a question when it was put to her if she was present when the other candidates were assessed during the interviews. She conceded that she was not present and therefore could not observe the performance of the other candidates. It is on this basis that I find it improbable that she performed better than the other candidates. It is my finding that both the applicant and the 2nd Respondent met the requirements of the position. Thus, it is my finding that the 2nd Respondent qualified for the position of HOD, post level 2. The applicant also did not dispute the fact that the second Respondent has extensive experience in foundation phase teaching. The applicant did not dispute that the applicant had more skills set than her. It is my finding that the applicant failed to prove that she was underscored and the 2nd Respondent was overscored. I am persuaded that the applicant’s skills were more on intermediate phase and universities which made her skills and experience irrelevant to the advertised position.
[25] The applicant’s witness, Ms Grace Mmako, is entitled to her view or opinion of the proceedings. However, what counts is the scoring of the properly constituted panel. Therefore, I attach no weight to the view of Ms Grace Mmako. I am convinced that each panel member had scored each candidate individually without influence and this was an indication that the interview process was fair and transparent.
[26] I am convinced that the 2nd Respondent was the best candidate for the position. I accept the 1st Respondent’s argument that the 2nd Respondent performed better than the other two candidates. It is further my finding that the 1st Respondent’s discretion to appoint the 2nd Respondent was not exercised capriciously, or based upon any wrong principle or in a biased manner.
[27] In Aries v CCMA & others (2006) 27 ILJ 2324 (LC) the Court held that “there are limited grounds on which an arbitrator, or a court, may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. The court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner”.
[28] In view of the above judgement, and the reasons mentioned above, I am inclined not to interfere with the decision of the 1st Respondent in not appointing the Applicant.
[29] In light of the above, I am convinced that the decision to promote the 2nd Respondent to the position of the HOD post level 2 was the correct one. It is my finding that the Applicant failed to discharge the onus of proving her non-promotion was unfair on a balance of probabilities.
[30] I therefore make the following award:
AWARD
[31] The Applicant, (Mrs Khomotso Mpaneng) has not discharged the onus to show that the Respondent has committed an unfair labour practice in relation to promotion.
[32] The Applicant’s referral of a dispute is dismissed.
[33] There is no order as to costs.
ELRC PANELLIST: PAUL PHUNDU