ELRC11-16/17KZN
ELRC11-16/17KZN
Award Date:
20 September 2016
Case Number: ELRC11-16/17KZN
Province: KwaZulu-Natal
Applicant: Naptosa obo Harriram & 2 Others
Respondent: Thekwini TVET College and Department of Higher Education
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 20 September 2016
Arbitrator: Adv. L Bono
Case No ELRC11-16/17KZN
In the matter between
Naptosa obo Harriram & 2 Others Applicant
and
Thekwini TVET College 1st Respondent
Department of Higher Education and Training 2nd Respondent
Mngadi LN 3rd Respondent
AWARD
DETAILS OF THE HEARING AND REPRESENTATION
1. The arbitration concerning the alleged unfair labour practice: promotion committed by the 1st Respondent on the Applicants, was held at the 1st Respondent’s office on 19 September 2016.
2. The Applicants (Mrs. M Harriram; Mr. R A Naidu and Mrs. P Soni) were represented by Ms. I Dhanook of Naptosa, Ms. PS Msomi represented the 1st Respondent, the 3rd Respondent appeared in person and Mr. J Slater represented the 2nd Respondent and led the case of the Respondents.
3. What is contained in this award is a summary of the evidence and arguments led, and is not a detailed account of such evidence.
BACKGROUND
4. The Applicants are all senior employees of the 2nd Respondent working at the 1st Respondent.
5. In March 2016, the 1st Respondent issued Circular 02 of 2016, an advert for posts of Acting Campus Managers in a number of its satellite campuses. The Circular indicated the notch pay scale of the post and the requirements of the posts.
6. The Applicants, with an exception of Mr. Naidu, applied for the different posts. They were shortlisted and interviewed but not appointed. Mr. Naidu did not apply but lodged a grievance after Mr. Nyamurima was appointed.
SURVEY OF EVIDENCE AND ARGUMENTS
7. Mr. Ramachandra Appal Naidu testified that he is the Divisional Head at the 1st Respondent’s Melbourne Campus. He is a post level 3, and has been for four to five years. There is no one else who is a post level 3 and he did not apply for the post of Acting Campus Manager at Melborne Campus because his appointment should have been automatic, as per the 2nd Respondent’s acting policy.
8. Ms. Soni testified that she holds the post of Head of Department and has acted as Campus Manager before at Asherville Campus. She applied for the post of Campus Manager and was shortlisted and interviewed but was not appointed despite being the most experienced. The 3rd Respondent, who occupied a post level 1 post as an SLO was appointed. She lodged a grievance, as she believed that she was the best candidate and should have been appointed.
9. Ms. Harriram also confirmed that she applied for the posts of Campus Manager but was not appointed. Mr. Luthili was appointed to a post level 4 position despite being a post level 1.
10. Nkosinathi Mchunu the Principal of the 1st Respondent testified that he was appointed by the 2nd Respondent on 20 January 2016. When he took over the college, there was instability, and there were vacant posts of Campus Managers, which he could not fill owing to the 63% threshold imposed by the 2nd Respondent. The matter of these posts was brought to the attention of the Council and its Human Resources Sub-Committee. Council resolved that Acting positions for the posts in question must be advertised. These positions were for Campus Managers for the following campuses: Cato Manor; uMbilo; Melbourne; Centec; Springfield and Asherville. Interviews were opened to all interested staff members. In the interviews, candidates that performed best were appointed. Mr. Luthuli was appointed for Cato manor; Mr. Mervyn Naidu for uMbilo; Mr. Nyamurima for Melbourne; Mr. Zungu for Centec; Mr. Mthimkhulu for Springfield and Ms. Mngazi for Asherville.
11. While the Acting Policy binds him and the 1st Respondent, he thought it was best to throw the net wide and open the applications to all staff members who are interested. He did not think it was proper to limit the pool by only considering the candidates who were one level below the positions to be filled. The candidates who were one level below had the opportunity to apply and were duly considered.
12. The 2nd Respondent wanted the appointments reversed and Council decided to make the appointments and pay the acting allowance itself. This is the reason why he acted within the exception identified in the policy.
ANALYSIS OF THE EVIDENCE AND ARGUMENTS
13. At the center of this dispute is the failure by the 1st Respondent to apply the policy on the payment of acting allowance.
14. The principal of the 1st Respondent admitted that the policy was binding on him and the 1st Respondent, but gave different reasons why he did not apply it. First he testified that he and the 1st Respondent’s council preferred an open process where all staff of the college could apply and not limit himself to the staff that is one level below the posts that were advertised. Then he testified that he did not apply the policy because it was not the 2nd Respondent who was going to pay for the acting allowance but the 1st Respondent. Lastly and for the first time in reexamination he gave a brand new version, suggesting that he applied the policy but used the deviation clause to it. The principal was a bad witness and his version proved not to be credible. He appeared to have been covering his tracks more than giving an honest account of what happened.
15. There was also a dispute on whether the matter before me is a promotion dispute. 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”. Although not a requirement for promotion, an increase in salary could be indicative of a promotion. I am convinced, on the evidence led, that Acting as Campus Manager are posts, that carry an elevation with greater authority and status, despite being for a limited period. Consequently I am satisfied that the posts in question were promotional posts.
16. Coming back to the process followed in the appointments of the posts in question and the defenses for the conduct of the 1st Respondent.
17. Given the fact that it is common cause that the policy was applicable and binding on the 1st Respondent, the question that follows is whether the 1st Respondent’s departure was justifiable. The first defense was that the Council preferred an open process wherein it could allow all staff members who had an interest could apply. This is in direct contradiction to the policy. At the most it would qualify under the exception under clause 5.2, but it is common cause that the Principal did not write a motivation as required by clause 5.2 and therefore this defense falls flat.
18. The second defense was that it was the Council paying the acting allowance. This defense does not even get off from the starting blocks as it is negated by the fact that the Principal conceded to the applicability and binding effect of the policy on him and the 1st Respondent. Therefore it cannot matter who is going to pay the allowance. All the employees in question, the Applicants and the appointed employees are employees of the 2nd Respondent and therefore cannot be treated unequally without justification.
19. The last defense is that he deviated as per Resolution 8 of 2002, which is also contained in clause 5.2 of the policy. This defense is also a non-starter, as no motivation was made for the deviation.
20. On the evidence presented, I am convinced that the process followed by the 1st and 2nd Respondent in the filling of promotional posts of Acting Campus Managers in Circular 2 of 2016 was irregular and not in compliance with the Acting policy.
21. Having made the above finding, the next question is whether the Applicants have made a case for being awarded any remedy as a consequence of the unfairness by the 1st Respondent. The Applicant’s primary claim is based on the 1st Respondent’s failure to apply the policy. It must be noted that the prerogative to appoint is that of the employer, as in some campuses the posts are vacant and have not been filled.
22. An employee who refers a promotion dispute must do more than just demonstrate that he / she has the minimum advertised qualifications and experience. He must allege and prove that the decision not to appoint him was unfair.
23. Whilst the 1st Respondent failed to comply with the policy, I have no evidence that Mrs. M Harriram and Mrs. P Soni are the only people who would benefit from automatic appointments if the 1st Respondent would apply and comply with the policy. Secondly, on the evidence presented, I am not convinced that Mr. Mhlongo’s position is vacant and therefore the 1st and 2nd Respondent have the prerogative on hos they should take this process forward, my concern is to ensure that they act within the prescripts of the law. Consequently I am not convinced that the Applicants are entitled to any other remedy except the setting aside of the appointment that were irregularly made.
24. In closing I want to deal with this underlying unstable and racist issues raised. It makes a mockery of addressing such sensitive issues when the custodian of policies transgresses them in the name of trying to please certain quarters of stakeholders to ensure stability.
AWARD
25. Having heard the cases of both parties, I am convinced that the 1st Respondent’s failure to apply the acting policy resulted in unfair conduct against the Applicants and consequently the appointments made on the positions advertise in Circular 2 of 2016 are hereby set aside with immediate effect.
26. The 1st Respondent is ordered to restart the process and comply with the acting policy in question.
Signed on this 20 September 2016.
Adv. L Bono
Province: KwaZulu-Natal
Applicant: Naptosa obo Harriram & 2 Others
Respondent: Thekwini TVET College and Department of Higher Education
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 20 September 2016
Arbitrator: Adv. L Bono
Case No ELRC11-16/17KZN
In the matter between
Naptosa obo Harriram & 2 Others Applicant
and
Thekwini TVET College 1st Respondent
Department of Higher Education and Training 2nd Respondent
Mngadi LN 3rd Respondent
AWARD
DETAILS OF THE HEARING AND REPRESENTATION
1. The arbitration concerning the alleged unfair labour practice: promotion committed by the 1st Respondent on the Applicants, was held at the 1st Respondent’s office on 19 September 2016.
2. The Applicants (Mrs. M Harriram; Mr. R A Naidu and Mrs. P Soni) were represented by Ms. I Dhanook of Naptosa, Ms. PS Msomi represented the 1st Respondent, the 3rd Respondent appeared in person and Mr. J Slater represented the 2nd Respondent and led the case of the Respondents.
3. What is contained in this award is a summary of the evidence and arguments led, and is not a detailed account of such evidence.
BACKGROUND
4. The Applicants are all senior employees of the 2nd Respondent working at the 1st Respondent.
5. In March 2016, the 1st Respondent issued Circular 02 of 2016, an advert for posts of Acting Campus Managers in a number of its satellite campuses. The Circular indicated the notch pay scale of the post and the requirements of the posts.
6. The Applicants, with an exception of Mr. Naidu, applied for the different posts. They were shortlisted and interviewed but not appointed. Mr. Naidu did not apply but lodged a grievance after Mr. Nyamurima was appointed.
SURVEY OF EVIDENCE AND ARGUMENTS
7. Mr. Ramachandra Appal Naidu testified that he is the Divisional Head at the 1st Respondent’s Melbourne Campus. He is a post level 3, and has been for four to five years. There is no one else who is a post level 3 and he did not apply for the post of Acting Campus Manager at Melborne Campus because his appointment should have been automatic, as per the 2nd Respondent’s acting policy.
8. Ms. Soni testified that she holds the post of Head of Department and has acted as Campus Manager before at Asherville Campus. She applied for the post of Campus Manager and was shortlisted and interviewed but was not appointed despite being the most experienced. The 3rd Respondent, who occupied a post level 1 post as an SLO was appointed. She lodged a grievance, as she believed that she was the best candidate and should have been appointed.
9. Ms. Harriram also confirmed that she applied for the posts of Campus Manager but was not appointed. Mr. Luthili was appointed to a post level 4 position despite being a post level 1.
10. Nkosinathi Mchunu the Principal of the 1st Respondent testified that he was appointed by the 2nd Respondent on 20 January 2016. When he took over the college, there was instability, and there were vacant posts of Campus Managers, which he could not fill owing to the 63% threshold imposed by the 2nd Respondent. The matter of these posts was brought to the attention of the Council and its Human Resources Sub-Committee. Council resolved that Acting positions for the posts in question must be advertised. These positions were for Campus Managers for the following campuses: Cato Manor; uMbilo; Melbourne; Centec; Springfield and Asherville. Interviews were opened to all interested staff members. In the interviews, candidates that performed best were appointed. Mr. Luthuli was appointed for Cato manor; Mr. Mervyn Naidu for uMbilo; Mr. Nyamurima for Melbourne; Mr. Zungu for Centec; Mr. Mthimkhulu for Springfield and Ms. Mngazi for Asherville.
11. While the Acting Policy binds him and the 1st Respondent, he thought it was best to throw the net wide and open the applications to all staff members who are interested. He did not think it was proper to limit the pool by only considering the candidates who were one level below the positions to be filled. The candidates who were one level below had the opportunity to apply and were duly considered.
12. The 2nd Respondent wanted the appointments reversed and Council decided to make the appointments and pay the acting allowance itself. This is the reason why he acted within the exception identified in the policy.
ANALYSIS OF THE EVIDENCE AND ARGUMENTS
13. At the center of this dispute is the failure by the 1st Respondent to apply the policy on the payment of acting allowance.
14. The principal of the 1st Respondent admitted that the policy was binding on him and the 1st Respondent, but gave different reasons why he did not apply it. First he testified that he and the 1st Respondent’s council preferred an open process where all staff of the college could apply and not limit himself to the staff that is one level below the posts that were advertised. Then he testified that he did not apply the policy because it was not the 2nd Respondent who was going to pay for the acting allowance but the 1st Respondent. Lastly and for the first time in reexamination he gave a brand new version, suggesting that he applied the policy but used the deviation clause to it. The principal was a bad witness and his version proved not to be credible. He appeared to have been covering his tracks more than giving an honest account of what happened.
15. There was also a dispute on whether the matter before me is a promotion dispute. 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”. Although not a requirement for promotion, an increase in salary could be indicative of a promotion. I am convinced, on the evidence led, that Acting as Campus Manager are posts, that carry an elevation with greater authority and status, despite being for a limited period. Consequently I am satisfied that the posts in question were promotional posts.
16. Coming back to the process followed in the appointments of the posts in question and the defenses for the conduct of the 1st Respondent.
17. Given the fact that it is common cause that the policy was applicable and binding on the 1st Respondent, the question that follows is whether the 1st Respondent’s departure was justifiable. The first defense was that the Council preferred an open process wherein it could allow all staff members who had an interest could apply. This is in direct contradiction to the policy. At the most it would qualify under the exception under clause 5.2, but it is common cause that the Principal did not write a motivation as required by clause 5.2 and therefore this defense falls flat.
18. The second defense was that it was the Council paying the acting allowance. This defense does not even get off from the starting blocks as it is negated by the fact that the Principal conceded to the applicability and binding effect of the policy on him and the 1st Respondent. Therefore it cannot matter who is going to pay the allowance. All the employees in question, the Applicants and the appointed employees are employees of the 2nd Respondent and therefore cannot be treated unequally without justification.
19. The last defense is that he deviated as per Resolution 8 of 2002, which is also contained in clause 5.2 of the policy. This defense is also a non-starter, as no motivation was made for the deviation.
20. On the evidence presented, I am convinced that the process followed by the 1st and 2nd Respondent in the filling of promotional posts of Acting Campus Managers in Circular 2 of 2016 was irregular and not in compliance with the Acting policy.
21. Having made the above finding, the next question is whether the Applicants have made a case for being awarded any remedy as a consequence of the unfairness by the 1st Respondent. The Applicant’s primary claim is based on the 1st Respondent’s failure to apply the policy. It must be noted that the prerogative to appoint is that of the employer, as in some campuses the posts are vacant and have not been filled.
22. An employee who refers a promotion dispute must do more than just demonstrate that he / she has the minimum advertised qualifications and experience. He must allege and prove that the decision not to appoint him was unfair.
23. Whilst the 1st Respondent failed to comply with the policy, I have no evidence that Mrs. M Harriram and Mrs. P Soni are the only people who would benefit from automatic appointments if the 1st Respondent would apply and comply with the policy. Secondly, on the evidence presented, I am not convinced that Mr. Mhlongo’s position is vacant and therefore the 1st and 2nd Respondent have the prerogative on hos they should take this process forward, my concern is to ensure that they act within the prescripts of the law. Consequently I am not convinced that the Applicants are entitled to any other remedy except the setting aside of the appointment that were irregularly made.
24. In closing I want to deal with this underlying unstable and racist issues raised. It makes a mockery of addressing such sensitive issues when the custodian of policies transgresses them in the name of trying to please certain quarters of stakeholders to ensure stability.
AWARD
25. Having heard the cases of both parties, I am convinced that the 1st Respondent’s failure to apply the acting policy resulted in unfair conduct against the Applicants and consequently the appointments made on the positions advertise in Circular 2 of 2016 are hereby set aside with immediate effect.
26. The 1st Respondent is ordered to restart the process and comply with the acting policy in question.
Signed on this 20 September 2016.
Adv. L Bono