PSES 410-19/20KZN
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PSES 410-19/20KZN
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Award Date:
31 March 2021
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IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT PIETERMARITZBURG
CASE NO.: PSES 410-19/20KZN
IN THE MATTER BETWEEN: -
MKHONTO P P APPLICANT
AND
DEPARTMENT OF EDUCATION - KZN 1ST RESPONDENT
NTSHABA M S 2ND RESPONDENT
___________________________________________________________________
ARBITRATOR : P. JAIRAJH
DATE OF AWARD : 31 MARCH 2021
Applicant’s representative : Mr S.X. Sokhela (SADTU)
Telephone :
Fax :
Email :
1st Respondent’s representative : Mr S.C. Ngcobo
Telephone :
Fax :
Email :
2nd Respondent’s representative : Mr S.B. Madondo (SALIPSWU)
Telephone :
Fax :
Email
DETAILS OF HEARING AND REPRESENTATION
[1] This matter was set down several times and protracted due to the applicant’s family bereavement, illness of the applicant and network problems relating to the virtual hearings. The matter proceeded on the 4 December 2019, 3 December 2020 and 17 February 2021. The applicant was represented by Mr S. X. Sokhela from SADTU, the first respondent by Mr S.C. Ngcobo, and at the initial sitting the second respondent was represented by Mr M.S. Mathonsi and thereafter by Mr S.B. Madondo, both from SALIPSWU.
[2] The parties, at the conclusion of proceedings, elected to submit written closing arguments which were received on 2 March 2021.
BACKGROUND TO THE DISPUTE
[3] This is a promotion dispute involving Post Number 1227 at Wittekleinfontein Primary School, being the post of Principalship which was advertised by the first respondent under HRM 70 of 2018.
[4] It was common cause that the applicant and the second respondent applied for the post in dispute. The second respondent also applied for two other principal posts and was shortlisted for those posts. The second respondent was the Acting Principal of Wittekleinfontein Primary School. The applicant was sifted in but not shortlisted. She lodged a grievance about the second respondent being sifted out and later shortlisted however her grievance was dismissed. The second respondent was sifted out and she lodged a grievance in respect of her not being sifted in. She was subsequently sifted in, shortlisted, interviewed, recommended and subsequently appointed to the post in dispute.
ISSUE TO BE DECIDED
[5] I have to determine whether the conduct by the first respondent constituted an unfair labour practice in terms of section 186(2)(a) of the Labour Relations Act, 66 of 1995, and if so, order the appropriate relief.
SUMMARY OF EVIDENCE AND ARGUMENTS
APPLICANT’S SUBMISSIONS
The salient aspects of Phindile Priscilla Mkhonto’s submissions are recorded below.
[6] When she attended a SADTU meeting she saw the list of the sifted in candidates and the second respondent’s name was not on that list. She lodged a dispute as she wanted clarity as to why the second respondent was sifted in and called for an interview.
Under cross-examination by the first respondent, she testified that:
[7] She was informed that the paper was lost and not part of the CV and when Mr Khuzwayo enquired as to who found the paper, there was no response.
[8] When it was put to her that the Department made a mistake and when they realized their mistake and corrected it and she was not happy about that, she stated that she was not aware of the person who found the missing paper and the procedure that they used was unfair.
[9] When further questioned that she had told the tribunal that the only thing that she was not happy with was that she did not know who retrieved the paper from the envelope and when asked if it was her in that situation and the Department finds her missing page but did not include it when they realised their mistake, she stated that she would not be happy.
[10] When referred to the second respondent’s Grievance , she agreed that the signature of the referring trade union representative was the same Mr Khuzwayo, who was sitting in this tribunal as an observer, who wanted the second respondent to be treated fairly, and by the Department receiving this information from him, and acting on correcting the mistake, would not be wrong.
[11] She is the site steward for Wittekleinfontein and was representing the educators at the school. Before the interviews she was called to a site steward meeting where they were told to check whether their CV’s were sifted in and that is how she knew that she was sifted in. She saw that the second respondent’s name was not on the list.
[12] When asked why she did not tell the second respondent that she was sifted out, she stated that it was difficult to tell her that she was not sifted in.
[13] She was not happy when she found out that the second respondent was later sifted in. She admitted that she was not prejudiced as a result of the second respondent being sifted in.
[14] The same Mr Khuzwayo who lodged the second respondent’s grievance also lodged her grievance.
Under cross-examination by the second respondent, she testified that:
[15] She agreed that she was not a site steward when she attended the meeting and saw the list but further stated that she was the site secretary.
[16] When Mr Khuzwayo submitted the second respondent’s grievance he was writing it on behalf of the union. She agreed that a grievance is a complaint lodged for the member by the union which is deposited with the Department.
[17] She agreed that Mr Khuzwayo, as a member of SADTU, wrote the grievance for the Department to correct the issue of the second respondent being sifted out. She expected the Department to listen to the grievance and agreed that the Department was not wrong by receiving and acting on the grievance.
[18] She agreed when it was put to her that it was a SADTU grievance, the Department investigated, discovered the missing page, rectified the issue and the grievance was resolved. When questioned if the union was supposed to be angry when the Department did exactly what the Union wanted, she stated that she did not know and could not answer for the union.
[19] She was not happy that the Department dismissed her grievance.
[20] It was put to her that she lodged a grievance on the 8th of April 2019 which was after the interviews while she knew in February 2019 that the second respondent was not sifted in and her grievance was malicious and out of jealousy. She stated that she was not jealous or against the second respondent but had an issue with the procedure that was used.
[21] She agreed that candidates get sifted in or out and shortlisted based on the strength of their CV’s. When asked how she would feel if her CV was submitted with all the pages but she was suddenly told that a page was missing, she stated that it will painful.
[22] It was not correct to lose a page and if the Department corrects the mistake, it was not wrong.
NOKUTHULA LAURAN MAJOLA
The salient aspects of her evidence are recorded below.
[23] She is employed as an Admin Clerk at Engcogwane Primary school and was called to help at the Circuit Office. Her signature appeared on the Schedule of Sifted in Applications.
[24] She was workshopped on the Checklist. They usually sift out CV’s which are not validated and where there was no signature, or something was missing. The second respondent’s CV was sifted out because of a missing page.
[25] The remarks in the Schedule of Shifted out Applications were that of hers and another lady who she was working with. They checked the application and the envelope, the envelope usually comes with a small envelope inside, and they checked the small envelope but did not find the missing page.
Under cross-examination by the first respondent, she testified that:
[26] About 20 people were doing the sifting for all the schools. Ms Hadebe, a clerk at the Circuit Office, chaired a meeting where they were told how to do the sifting.
[27] She did not know how many applications were there but stated that there were many applications. They opened one envelope at a time and checked it at the same time.
[28] She remembered that application because she saw the name of the school and her signature. When asked how she could remember this particular application and if she was sure that a mistake could not happen, she stated that she saw her signature on this page and she remembered the school that she was working with. She was not sure if she would have remembered if she did not see her name on the schedule.
[29] When asked if a page could be left by mistake because there were a lot of papers, she stated that they usually open the envelope, turn it down and drop out everything that is inside.
[30] She denied that she was not telling the truth, was trying to fabricate by covering for the applicant and was told what to say.
[31] She belonged to SADTU and was called by Khuzwayo to testify.
[32] When it was put to her that Department discovered that there was a mistake and found the paper, she stated that these officials were lying because she opened the envelope and there was nothing else except for the small envelope.
[33] When questioned if she was saying that her superiors were all lying, she stated that she did not know where that paper came from and she did not find anything in the envelopes. Under further cross-examination it was put to her that her superiors found the paper, she stated that she did know how.
Under cross-examination by the second respondent, she testified that:
[34] They were working in pairs and were using the criteria that was given. First they start with checking and then they write down the sifted in and out applications.
[35] She spent a week working with that lady (hereinafter referred to as “Miss X”) but did not know her name because she was an intern, but there was a register where they wrote their names.
[36] She could not say which person’s envelope she opened but was talking in general about the envelopes and what she did.
[37] She could not say between the two of them who opened which envelopes as both of them were opening envelopes. She admitted that she could not speak on behalf of Miss X.
[38] When it was put to her that she could not say that Miss X would not have made a mistake and left a page inside the envelope, she stated that she was talking about the procedure that they follow.
[39] She could not dispute that this particular envelope was opened by Miss X. When it was put to her that Miss X could have been careless and not thorough in her job, she stated that she could not speak for her.
[40] When questioned that under cross-examination by the first respondent she stated that her superiors were lying and why did she have the audacity to say that they were lying if they found the missing page in the envelope that were opened by Miss X, she stated that she could not speak for Miss X.
[41] She did not comment when it was put to her that her statement that her superiors were lying was baseless since she was not the only one that was opening envelopes.
[42] When referred to the Checklist, she agreed that they were told to sift in or out CV’s based on this information and she further agreed that there was nothing about sifting a CV out because of a missing page.
[43] She could not dispute that the second respondent completed her application form in entirety and had put it in that envelope.
[44] She did not know that her union had assisted the second respondent in lodging her grievance and that the Department, headed by Mr Maharaj, had investigated her grievance.
[45] She did not comment when it was put to her that the Department, in their investigation, discovered the missing page and that is why they corrected their mistake as reflected on the Schedule of sifted in Applications. She testified that Ms Hadebe, who was supervising her had signed this schedule.
FIRST RESPONDENT’S SUBMISSIONS
VEEJAY CHUNDRAPERSAD MAHARAJ
The salient aspects of her evidence are recorded below.
[46] He is Chief Education Specialist (CES) based at Escort Circuit Management Centre and had been the Caretaker Circuit Chief Education Specialist for Mnambithi Circuit Management Centre from 1 July 2016 to 30 June 2019.
[47] One of the functions that the Circuit Management Centre had to perform in terms of the procedure manual of the bulletin was the aspect of sifting which was conducted at Mnambithi prior to the 18th of February 2019 and the sifting report back meeting was conducted on the 18th of February 2019. The two unions who are party to the ELRC were invited to that meeting and they were given a report back of all candidates, those sifted in and out and they had access to all applications and were given schedules that related to all posts that were sifted.
[48] The very next day he received a call from Ms Mthethwa, the Circuit Manager at Sinethemba Circuit. She indicated that a complaint was received from the second respondent which was twofold. She complained that she was sifted out for Post Number 1227, yet she was sifted in for the other posts. The second complaint was that they had conducted the sifting process with a person who was an applicant for the Post Number 1227. He then directed Ms Mthethwa and Ms Masondo, the Circuit Manager of Siyathuthuka Circuit, to go to the Circuit Office and look into this matter, in other words to examine the application and to check whether it was in order or not.
[49] They checked with Nomcebo, who was in charge of processing and safekeeping of documents. They discovered that the last page of the CV was inside the envelope. When he received this report, he instructed the Nomcebo to withhold the applications until he could examine them himself.
[50] On the 22nd of February 2019 whilst he was at the District Office, he received information from the District HR Coordinator, Mr KS Narainsamy that a grievance has been lodged by the second respondent which was supported by Mr Khuzwayo from SADTU.
[51] The very same day he proceeded to the Mnambithi CMC to examine the documents. He checked that the CV was in order and simply because of their normal practice to avoid a lengthy period for grievances and trying to fill posts quickly so schools are not disadvantaged, when he discovered that these things were in order, he phoned Mr Khuzwayo and a Mr Blandile from CTU-ATU to come through and have a look at the documents before they were dispatched to the school.
[52] Mr Blandile did not respond but Mr Khuzwayo indicated that it was in order because his member was being assisted and he was satisfied. They proceeded with sending these applications to schools for them to proceed with the process of shortlisting and interviewing and the process continued at the school, however Mr Narainsamy brought to his attention that there was another grievance that was lodged on 8 April 2019. This grievance was lodged by the applicant for the same Post Number 1227 and was supported by Mr Khuzwayo. Both the second respondent and applicant were in the same union and was being supported by the same union.
[53] The applicant’s grievance was around the fact that the second respondent was sifted out originally and eventually sifted in. The applicant was shortlisted for the post, her CV was evaluated by the interview committee but in terms of the interview, the bulletin was specific in saying that they should shortlist at least five applicants per post, so she did not fall into the category of the five applicants.
[54] He referred to Schedule of Sifted in Applications and the Attendance Register and stated that applicant number 23, Mbatha NW was present at the sifting meeting on the 18th of February 2019, and this was not allowed. Their invitation clearly stated that if you are an applicant, delegate attendance of this meeting to a non-applicant. The Bulletin clearly states that any person who has a vested interest must recuse himself or herself from any of the processes regarding the undertaking of shortlisting, interviewing and ratification of the post.
[55] There was no prejudice to the applicant if the second respondent was sifted in simply because the second respondent was not the only candidate and the schedule indicates 40 candidates. If the aggrieved person had to use the sifting in of the second respondent as grounds for prejudice, then the same would apply to the other 39 candidates. The fact that all of them were subjected to the same criteria in terms of shortlisting and interview does not in any way according to his knowledge lead to any kind of prejudice against the applicant.
[56] The contradiction that has come from Mr Khuzwayo is one that surprised him because it seems to heighten the plight of one whilst reneging the other one and it is a contradiction of the worst kind.
Under cross-examination by the applicant, he testified that:
[57] The HRM 30 of 2016 spells out how applications should be sifted in and out, it talks to criteria on the Z83 as well as the applicant’s curriculum vitae. So these are prescribed, they print this out and give it to staff that are involved in the sifting process. They are trained and they exercise this aspect for every applicant’s application and at the end of the process they prepare schedules of sifted in and sifted out applications.
[58] He agreed when referred to the schedule of sifted in and out applications , that the officials using the Checklist sifted out the second respondent because of a missing page on the CV form.
[59] In terms of the HRM 70, the Procedure Manual, at the conclusion of the sifting process, two recognised unions were invited thorough a written invitation to a meeting to verify the process of sifting and the unions had access to the sifted-out applications.
[60] He agreed that it was not in the Procedure Manual when he called Mr Blandile and Mr Khuzwayo.
[61] When it was put to him that they found the error, but they did not have the mandate to deal with it and should have taken it to some structure to approve, he stated that they should have taken it back to the CES and the two unions.
[62] After the second respondent raised her concern, they examined the documents and called for another meeting with the unions to prove that they had rectified the issue. SADTU responded by saying that they were satisfied with it and CTU-ATU did not respond, but the attempt was made to have a meeting to produce these documents as proof that her CV was in fact intact. So it is not as if they proceeded without any attempt to have the schedules produced to the unions.
[63] On 22 February 2019 when he examined the applications and found that a page of her CV was there, he called both unions and the parties to reconvene a meeting about the issue of the CV. SADTU indicated that it was their member, they did not have a problem and was satisfied with the process continuing because it was their member and they had supported her grievance. An attempt was made to have a second meeting but because they got that response and there was no response from the second union, they proceeded.
[64] The Procedure Manuel talks about a formal meeting. The Bulletin is specific in terms of inviting candidates and unions to procedures of shortlisting and interviewing when it says that you invite them in writing, and you give them five days to serve the notice but in the case of sifting there is no such mention.
[65] It was put to him that what he did was not in terms of the Procedure Manual which states that unions will be invited with a letter therefore the second meeting was uncalled for. He stated that the fact of the matter is the intention behind calling these unions is very important, whether it was done telephonically or whether it was done in writing, the intention was to be fair and transparent with the process and the reason why they did this was because time was of the essence and there was a candidate who was worried that her own union was there to verify why she was sifted out but had not come up with anything concrete. She was also concerned about the fact that there was an applicant who was in that verification process, and by inviting these unions, his intention was to call them there to be fair and transparent.
SIZAKELE BENEDICTOR MTHETHWA
The salient aspects of her evidence are recorded below.
[66] She is currently self-employed but was previously employed by the Department of Education as the Circuit Manager for Sinethemba Circuit.
[67] The second respondent called her to report that she had been told by the SADTU Chairperson that a page was missing from her CV and she was sifted out, and then she was complaining that she did not know why because everything was intact when she applied. She told the second respondent that she will refer the matter to their HR Coordinator and fortunately, Miss Masondo was with her at that time.
[68] Ms Masondo told her that she was going to call Mr Maharaj. Thereafter, Ms Masondo told her that Mr Maharaj said that they must go back to the Circuit Office and check.
[69] They then went to the Circuit Office and Ms Masondo asked Nomcebo to bring the schedule of the sifted out candidates and then they saw that the second respondent was indeed sifted out. Ms Masondo also asked Nomcebo to bring the CV’s for all the schools that the second respondent had applied at and they saw that for all other posts everything was intact. Ms Masondo then requested Nomcebo to check the envelope and when they were checking it, they found that the missing last page of the CV was stuck inside the envelope.
Under cross-examination by the applicant, she testified that:
[70] She agreed that the schedule of sifted in applications did not have the name of the second respondent meaning that the second respondent was correct in reporting to her that her CV was sifted out.
[71] She was not part of the verification process.
DAPHNEY MASONDO
The salient aspects of her evidence are recorded below.
[72] She works at the Mnambithi Circuit Office and had been there since 2002.
[73] Ms Mthethwa reported to her that there was a complaint from the second respondent that she had been sifted out. When they reported this to Mr Maharaj, he sent Ms Mthethwa and her to the office to have a look at the CV’s because the complaint was that the second respondent had applied to other schools besides Wittekleinfontein. They called the Admin Clerk, Nomcebo Radebe and asked her to give them all the second respondent’s applications. They found that in all her other applications, she had been sifted in and everything was there, but in the school where she was the Acting Principal they realized that her CV was tampered with. They asked Nomcebo to bring the envelope and when Nomcebo came back with the envelope they found the paper inside. They then reported to Mr Maharaj that they found the missing page and it was inside the envelope.
Under cross-examination by the applicant, she testified that:
[74] She was familiar with the verification process after the sifting but stated that she was not part of the sifting process nor did she do the verification process, everything was done by Mr Maharaj.
NOMCEBO BABONGILE RADEBE
The salient aspects of her evidence are recorded below.
[75] She is employed in the Mnambithi Circuit Office as an Admin Clerk.
[76] The day after the Circuit Management had a meeting with the Unions, the second respondent came and wanted to know the reason why she was sifted out. She gave the second respondent the schedule of sifted out applications and she also wanted to see her CV. The last page of her CV was missing, and she reported this case to Ms Mthethwa.
[77] Thereafter, Ms Masondo and Ms Mthethwa came and asked her to bring the applications forms for all the posts that the second respondent had applied to. She then gave it to them, and they checked and found out that in every other application everything was fine and she was sifted in, except for Wittekleinfontein.
[78] Thereafter, they asked her to bring the envelopes and she was asked to open the envelopes and check, and she then found the paper was stuck inside the envelope.
Under cross-examination by the applicant, she testified that:
[79] It was normal for applicants to come to her office.
[80] She agreed that she used the Checklist when sifting in and out a CV. She agreed that these two names on the Schedule of sifted out applications were sifted out as per the Checklist and this was the schedule that was taken to union.
EUNICE DUMISILE NTSHABA
The salient aspects of her evidence are recorded below.
[81] She had been employed at Wittekleinfontein Primary School since 2002. On 1 November 2018 she was appointed as the Acting Principal and in 2019 she was appointed as the Principal.
[82] She had applied for the post and was called by the SADTU Chairperson, Mr Mbatha, who was part of the process, and he informed her that she was sifted out from the post where she was an Acting Principal. He told her that the last page was missing, and he advised her to go to the Circuit Office to check.
[83] She then complained to Mr Mbatha that she was not happy at all because when she saw the CV, it showed that it had been tampered with. She asked him to represent her and told him that she was going to lodge a grievance, and then Mbatha told her that he was not going to help her because he was also an applicant to the same post, and he referred her to Mr Khuzwayo.
[84] She went to the Circuit Office and they showed her the CV and the list. When she looked at the CV, she was not happy because it clearly showed that it had been tampered with and she told them that she was going to lodge a grievance. Mr Khuzwayo helped her to lodge the grievance. After they lodged the grievance, Mr Khuzwayo phoned her and informed her that the Department of Education had rectified their mistake so now she was back on the list. He said that Mr Maharaj told him that the page was stuck inside the envelope by mistake.
Under cross-examination by the second respondent, she testified that:
[85] Mr Mbatha was the chairperson of SADTU at Gabamakthini Branch, Mr Khuzwayo was the secretary at the same branch, and she was also a SADTU member.
[86] Mr Khuzwayo, together with her, lodged a grievance. Mr Khuzwayo had told her that he had spoken to Mr Maharaj and he said that the Department had rectified the mistake.
Under cross-examination by the applicant, she testified that:
[87] Mr Mbatha was part of the process because he was the person who informed her that she was sifted out.
ANALYSIS OF EVIDENCE AND ARGUMENT
I have considered all the arguments of the parties as well as the documentary evidence submitted.
[88] The Applicant claims that the First Respondent committed an unfair labour practice relating to promotion in the sifting in process for the post of Principal at Wittekleinfontein Primary School. The applicant seeks the relief that the appointment of the second respondent be set aside and the process be redone from shortlisting as per the Schedule of Sifted in applications.
[89] The onus is on the applicant to show that the employer’s conduct was unfair.
[90] In terms of the Labour Relations Act, General provisions for arbitration proceedings, section 138(1) reads as follows:
The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities.
[91] This matter was referred for arbitration in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 (“the LRA).
[92] In terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995, Unfair
Labour Practice means any unfair act or omission that arises between an
employer and an employee involving-
(a) unfair conduct by the employer relating to the promotion, demotion,
probation [excluding disputes about dismissal for a reason relating to probation] or training of an employee or relating to the provision of benefits to an employee.
[93] It is common cause that the applicant lodged a grievance which was dismissed. It is common cause that the second respondent was initially sifted out and after lodging a grievance was subsequently sifted in. It is further common cause that her grievance was lodged on her behalf by SADTU. It is not in dispute that after an investigation by the Department Officials, Mr Maharaj contacted the two unions affiliated to the ELRC and only SADTU responded and indicated that they were satisfied with the outcome. It is not in dispute that the second respondent was the Acting Principal of Wittekleinfontein Primary School, was shortlisted, interviewed and subsequently appointed to the post in dispute. It is further not in dispute that the very same union, SADTU lodged the applicant’s grievance and referred her dispute to the Council for arbitration.
[94] In Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) the court held at par [79] “A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.”
[95] In Aries v CCMA & others (2006) 27 ILJ 2324 (LC), the Court held at [16] 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.”
[96] The applicant in her evidence-in-chief testified that she sought clarity as to why the second respondent was sifted in and called for an interview. Under cross-examination she contended initially that it was not that she was not happy that the second respondent was sifted in, but as to who had found the missing page and that she was not happy with the procedure. Under further cross-examination she admitted that she was not happy that the second respondent was sifted in.
[97] She conceded that she would not be happy if it was her in that situation and the Department realised their mistake but did not rectify it, and she further conceded that the Department acting on correcting its mistake would not be wrong. She admitted that she was not prejudiced as a result of the second respondent being sifted in.
[98] The applicant’s witness, Ms Majola could not confirm whether it was her or Miss X that had checked the second respondent’s application during the sifting process.
[99] The first respondent’s version was presented via the testimony of five witness, who all came across as honest; did not hesitate when testifying and were clear and candid in their responses.
[100] Mr Maharaj testified as to the complaint that he had received, the investigation conducted by the officials, the reporting to the unions and their feedback and the rectification of the Department’s mistake. Mr Maharaj testified that there was no prejudice to the applicant or to any of the other candidates. He testified that the intention was to be fair and transparent with the process. He further explained that their normal practice is to avoid a lengthy period of grievances and to fill posts quickly, so schools are not disadvantaged.
[101] Ms Mthethwa, Ms Masondo and Ms Radebe gave an account of their investigation and they all corroborated each other’s version. The second respondent testified as to how she found out that she was sifted out and the fact that Mr Khuzwayo from SADTU lodged her grievance on behalf of her.
[102] In Observatory Girls Primary School & others v Head of Department: Department of Education, Province of Gauteng, Case no 02/15349 [2006] JOL 17802 (W), it was held that strict compliance with relevant guidelines and collective agreements is not necessary, substantial compliance is sufficient.
[103] It is common cause that the Department found the missing page of the second respondent’s CV and rectified its mistake. The applicant’s only contention was the procedure used in sifting in the second respondent. The Procedure Manual referred to did not talk to an error made by the Department therefore I find that the Department received a grievance, investigated the matter, found the missing page and rectified its mistake. This was the correct and reasonable thing to do. Further and importantly, there was no prejudice suffered by the applicant or any of the other candidates.
[104] The applicant has not discharged the burden of showing that the first respondent’s conduct of sifting in the second respondent was an unfair labour practice.
[105] In view of the aforementioned judgments and my reasons above, I am of the view that the conduct of the employer does not constitute an unfair labour practice.
AWARD
[106] The applicant’s dispute is dismissed.
[107] There is no order as to costs.
ELRC Commissioner: P. Jairajh
DATED: 31 MARCH 2021
HELD AT PIETERMARITZBURG
CASE NO.: PSES 410-19/20KZN
IN THE MATTER BETWEEN: -
MKHONTO P P APPLICANT
AND
DEPARTMENT OF EDUCATION - KZN 1ST RESPONDENT
NTSHABA M S 2ND RESPONDENT
___________________________________________________________________
ARBITRATOR : P. JAIRAJH
DATE OF AWARD : 31 MARCH 2021
Applicant’s representative : Mr S.X. Sokhela (SADTU)
Telephone :
Fax :
Email :
1st Respondent’s representative : Mr S.C. Ngcobo
Telephone :
Fax :
Email :
2nd Respondent’s representative : Mr S.B. Madondo (SALIPSWU)
Telephone :
Fax :
DETAILS OF HEARING AND REPRESENTATION
[1] This matter was set down several times and protracted due to the applicant’s family bereavement, illness of the applicant and network problems relating to the virtual hearings. The matter proceeded on the 4 December 2019, 3 December 2020 and 17 February 2021. The applicant was represented by Mr S. X. Sokhela from SADTU, the first respondent by Mr S.C. Ngcobo, and at the initial sitting the second respondent was represented by Mr M.S. Mathonsi and thereafter by Mr S.B. Madondo, both from SALIPSWU.
[2] The parties, at the conclusion of proceedings, elected to submit written closing arguments which were received on 2 March 2021.
BACKGROUND TO THE DISPUTE
[3] This is a promotion dispute involving Post Number 1227 at Wittekleinfontein Primary School, being the post of Principalship which was advertised by the first respondent under HRM 70 of 2018.
[4] It was common cause that the applicant and the second respondent applied for the post in dispute. The second respondent also applied for two other principal posts and was shortlisted for those posts. The second respondent was the Acting Principal of Wittekleinfontein Primary School. The applicant was sifted in but not shortlisted. She lodged a grievance about the second respondent being sifted out and later shortlisted however her grievance was dismissed. The second respondent was sifted out and she lodged a grievance in respect of her not being sifted in. She was subsequently sifted in, shortlisted, interviewed, recommended and subsequently appointed to the post in dispute.
ISSUE TO BE DECIDED
[5] I have to determine whether the conduct by the first respondent constituted an unfair labour practice in terms of section 186(2)(a) of the Labour Relations Act, 66 of 1995, and if so, order the appropriate relief.
SUMMARY OF EVIDENCE AND ARGUMENTS
APPLICANT’S SUBMISSIONS
The salient aspects of Phindile Priscilla Mkhonto’s submissions are recorded below.
[6] When she attended a SADTU meeting she saw the list of the sifted in candidates and the second respondent’s name was not on that list. She lodged a dispute as she wanted clarity as to why the second respondent was sifted in and called for an interview.
Under cross-examination by the first respondent, she testified that:
[7] She was informed that the paper was lost and not part of the CV and when Mr Khuzwayo enquired as to who found the paper, there was no response.
[8] When it was put to her that the Department made a mistake and when they realized their mistake and corrected it and she was not happy about that, she stated that she was not aware of the person who found the missing paper and the procedure that they used was unfair.
[9] When further questioned that she had told the tribunal that the only thing that she was not happy with was that she did not know who retrieved the paper from the envelope and when asked if it was her in that situation and the Department finds her missing page but did not include it when they realised their mistake, she stated that she would not be happy.
[10] When referred to the second respondent’s Grievance , she agreed that the signature of the referring trade union representative was the same Mr Khuzwayo, who was sitting in this tribunal as an observer, who wanted the second respondent to be treated fairly, and by the Department receiving this information from him, and acting on correcting the mistake, would not be wrong.
[11] She is the site steward for Wittekleinfontein and was representing the educators at the school. Before the interviews she was called to a site steward meeting where they were told to check whether their CV’s were sifted in and that is how she knew that she was sifted in. She saw that the second respondent’s name was not on the list.
[12] When asked why she did not tell the second respondent that she was sifted out, she stated that it was difficult to tell her that she was not sifted in.
[13] She was not happy when she found out that the second respondent was later sifted in. She admitted that she was not prejudiced as a result of the second respondent being sifted in.
[14] The same Mr Khuzwayo who lodged the second respondent’s grievance also lodged her grievance.
Under cross-examination by the second respondent, she testified that:
[15] She agreed that she was not a site steward when she attended the meeting and saw the list but further stated that she was the site secretary.
[16] When Mr Khuzwayo submitted the second respondent’s grievance he was writing it on behalf of the union. She agreed that a grievance is a complaint lodged for the member by the union which is deposited with the Department.
[17] She agreed that Mr Khuzwayo, as a member of SADTU, wrote the grievance for the Department to correct the issue of the second respondent being sifted out. She expected the Department to listen to the grievance and agreed that the Department was not wrong by receiving and acting on the grievance.
[18] She agreed when it was put to her that it was a SADTU grievance, the Department investigated, discovered the missing page, rectified the issue and the grievance was resolved. When questioned if the union was supposed to be angry when the Department did exactly what the Union wanted, she stated that she did not know and could not answer for the union.
[19] She was not happy that the Department dismissed her grievance.
[20] It was put to her that she lodged a grievance on the 8th of April 2019 which was after the interviews while she knew in February 2019 that the second respondent was not sifted in and her grievance was malicious and out of jealousy. She stated that she was not jealous or against the second respondent but had an issue with the procedure that was used.
[21] She agreed that candidates get sifted in or out and shortlisted based on the strength of their CV’s. When asked how she would feel if her CV was submitted with all the pages but she was suddenly told that a page was missing, she stated that it will painful.
[22] It was not correct to lose a page and if the Department corrects the mistake, it was not wrong.
NOKUTHULA LAURAN MAJOLA
The salient aspects of her evidence are recorded below.
[23] She is employed as an Admin Clerk at Engcogwane Primary school and was called to help at the Circuit Office. Her signature appeared on the Schedule of Sifted in Applications.
[24] She was workshopped on the Checklist. They usually sift out CV’s which are not validated and where there was no signature, or something was missing. The second respondent’s CV was sifted out because of a missing page.
[25] The remarks in the Schedule of Shifted out Applications were that of hers and another lady who she was working with. They checked the application and the envelope, the envelope usually comes with a small envelope inside, and they checked the small envelope but did not find the missing page.
Under cross-examination by the first respondent, she testified that:
[26] About 20 people were doing the sifting for all the schools. Ms Hadebe, a clerk at the Circuit Office, chaired a meeting where they were told how to do the sifting.
[27] She did not know how many applications were there but stated that there were many applications. They opened one envelope at a time and checked it at the same time.
[28] She remembered that application because she saw the name of the school and her signature. When asked how she could remember this particular application and if she was sure that a mistake could not happen, she stated that she saw her signature on this page and she remembered the school that she was working with. She was not sure if she would have remembered if she did not see her name on the schedule.
[29] When asked if a page could be left by mistake because there were a lot of papers, she stated that they usually open the envelope, turn it down and drop out everything that is inside.
[30] She denied that she was not telling the truth, was trying to fabricate by covering for the applicant and was told what to say.
[31] She belonged to SADTU and was called by Khuzwayo to testify.
[32] When it was put to her that Department discovered that there was a mistake and found the paper, she stated that these officials were lying because she opened the envelope and there was nothing else except for the small envelope.
[33] When questioned if she was saying that her superiors were all lying, she stated that she did not know where that paper came from and she did not find anything in the envelopes. Under further cross-examination it was put to her that her superiors found the paper, she stated that she did know how.
Under cross-examination by the second respondent, she testified that:
[34] They were working in pairs and were using the criteria that was given. First they start with checking and then they write down the sifted in and out applications.
[35] She spent a week working with that lady (hereinafter referred to as “Miss X”) but did not know her name because she was an intern, but there was a register where they wrote their names.
[36] She could not say which person’s envelope she opened but was talking in general about the envelopes and what she did.
[37] She could not say between the two of them who opened which envelopes as both of them were opening envelopes. She admitted that she could not speak on behalf of Miss X.
[38] When it was put to her that she could not say that Miss X would not have made a mistake and left a page inside the envelope, she stated that she was talking about the procedure that they follow.
[39] She could not dispute that this particular envelope was opened by Miss X. When it was put to her that Miss X could have been careless and not thorough in her job, she stated that she could not speak for her.
[40] When questioned that under cross-examination by the first respondent she stated that her superiors were lying and why did she have the audacity to say that they were lying if they found the missing page in the envelope that were opened by Miss X, she stated that she could not speak for Miss X.
[41] She did not comment when it was put to her that her statement that her superiors were lying was baseless since she was not the only one that was opening envelopes.
[42] When referred to the Checklist, she agreed that they were told to sift in or out CV’s based on this information and she further agreed that there was nothing about sifting a CV out because of a missing page.
[43] She could not dispute that the second respondent completed her application form in entirety and had put it in that envelope.
[44] She did not know that her union had assisted the second respondent in lodging her grievance and that the Department, headed by Mr Maharaj, had investigated her grievance.
[45] She did not comment when it was put to her that the Department, in their investigation, discovered the missing page and that is why they corrected their mistake as reflected on the Schedule of sifted in Applications. She testified that Ms Hadebe, who was supervising her had signed this schedule.
FIRST RESPONDENT’S SUBMISSIONS
VEEJAY CHUNDRAPERSAD MAHARAJ
The salient aspects of her evidence are recorded below.
[46] He is Chief Education Specialist (CES) based at Escort Circuit Management Centre and had been the Caretaker Circuit Chief Education Specialist for Mnambithi Circuit Management Centre from 1 July 2016 to 30 June 2019.
[47] One of the functions that the Circuit Management Centre had to perform in terms of the procedure manual of the bulletin was the aspect of sifting which was conducted at Mnambithi prior to the 18th of February 2019 and the sifting report back meeting was conducted on the 18th of February 2019. The two unions who are party to the ELRC were invited to that meeting and they were given a report back of all candidates, those sifted in and out and they had access to all applications and were given schedules that related to all posts that were sifted.
[48] The very next day he received a call from Ms Mthethwa, the Circuit Manager at Sinethemba Circuit. She indicated that a complaint was received from the second respondent which was twofold. She complained that she was sifted out for Post Number 1227, yet she was sifted in for the other posts. The second complaint was that they had conducted the sifting process with a person who was an applicant for the Post Number 1227. He then directed Ms Mthethwa and Ms Masondo, the Circuit Manager of Siyathuthuka Circuit, to go to the Circuit Office and look into this matter, in other words to examine the application and to check whether it was in order or not.
[49] They checked with Nomcebo, who was in charge of processing and safekeeping of documents. They discovered that the last page of the CV was inside the envelope. When he received this report, he instructed the Nomcebo to withhold the applications until he could examine them himself.
[50] On the 22nd of February 2019 whilst he was at the District Office, he received information from the District HR Coordinator, Mr KS Narainsamy that a grievance has been lodged by the second respondent which was supported by Mr Khuzwayo from SADTU.
[51] The very same day he proceeded to the Mnambithi CMC to examine the documents. He checked that the CV was in order and simply because of their normal practice to avoid a lengthy period for grievances and trying to fill posts quickly so schools are not disadvantaged, when he discovered that these things were in order, he phoned Mr Khuzwayo and a Mr Blandile from CTU-ATU to come through and have a look at the documents before they were dispatched to the school.
[52] Mr Blandile did not respond but Mr Khuzwayo indicated that it was in order because his member was being assisted and he was satisfied. They proceeded with sending these applications to schools for them to proceed with the process of shortlisting and interviewing and the process continued at the school, however Mr Narainsamy brought to his attention that there was another grievance that was lodged on 8 April 2019. This grievance was lodged by the applicant for the same Post Number 1227 and was supported by Mr Khuzwayo. Both the second respondent and applicant were in the same union and was being supported by the same union.
[53] The applicant’s grievance was around the fact that the second respondent was sifted out originally and eventually sifted in. The applicant was shortlisted for the post, her CV was evaluated by the interview committee but in terms of the interview, the bulletin was specific in saying that they should shortlist at least five applicants per post, so she did not fall into the category of the five applicants.
[54] He referred to Schedule of Sifted in Applications and the Attendance Register and stated that applicant number 23, Mbatha NW was present at the sifting meeting on the 18th of February 2019, and this was not allowed. Their invitation clearly stated that if you are an applicant, delegate attendance of this meeting to a non-applicant. The Bulletin clearly states that any person who has a vested interest must recuse himself or herself from any of the processes regarding the undertaking of shortlisting, interviewing and ratification of the post.
[55] There was no prejudice to the applicant if the second respondent was sifted in simply because the second respondent was not the only candidate and the schedule indicates 40 candidates. If the aggrieved person had to use the sifting in of the second respondent as grounds for prejudice, then the same would apply to the other 39 candidates. The fact that all of them were subjected to the same criteria in terms of shortlisting and interview does not in any way according to his knowledge lead to any kind of prejudice against the applicant.
[56] The contradiction that has come from Mr Khuzwayo is one that surprised him because it seems to heighten the plight of one whilst reneging the other one and it is a contradiction of the worst kind.
Under cross-examination by the applicant, he testified that:
[57] The HRM 30 of 2016 spells out how applications should be sifted in and out, it talks to criteria on the Z83 as well as the applicant’s curriculum vitae. So these are prescribed, they print this out and give it to staff that are involved in the sifting process. They are trained and they exercise this aspect for every applicant’s application and at the end of the process they prepare schedules of sifted in and sifted out applications.
[58] He agreed when referred to the schedule of sifted in and out applications , that the officials using the Checklist sifted out the second respondent because of a missing page on the CV form.
[59] In terms of the HRM 70, the Procedure Manual, at the conclusion of the sifting process, two recognised unions were invited thorough a written invitation to a meeting to verify the process of sifting and the unions had access to the sifted-out applications.
[60] He agreed that it was not in the Procedure Manual when he called Mr Blandile and Mr Khuzwayo.
[61] When it was put to him that they found the error, but they did not have the mandate to deal with it and should have taken it to some structure to approve, he stated that they should have taken it back to the CES and the two unions.
[62] After the second respondent raised her concern, they examined the documents and called for another meeting with the unions to prove that they had rectified the issue. SADTU responded by saying that they were satisfied with it and CTU-ATU did not respond, but the attempt was made to have a meeting to produce these documents as proof that her CV was in fact intact. So it is not as if they proceeded without any attempt to have the schedules produced to the unions.
[63] On 22 February 2019 when he examined the applications and found that a page of her CV was there, he called both unions and the parties to reconvene a meeting about the issue of the CV. SADTU indicated that it was their member, they did not have a problem and was satisfied with the process continuing because it was their member and they had supported her grievance. An attempt was made to have a second meeting but because they got that response and there was no response from the second union, they proceeded.
[64] The Procedure Manuel talks about a formal meeting. The Bulletin is specific in terms of inviting candidates and unions to procedures of shortlisting and interviewing when it says that you invite them in writing, and you give them five days to serve the notice but in the case of sifting there is no such mention.
[65] It was put to him that what he did was not in terms of the Procedure Manual which states that unions will be invited with a letter therefore the second meeting was uncalled for. He stated that the fact of the matter is the intention behind calling these unions is very important, whether it was done telephonically or whether it was done in writing, the intention was to be fair and transparent with the process and the reason why they did this was because time was of the essence and there was a candidate who was worried that her own union was there to verify why she was sifted out but had not come up with anything concrete. She was also concerned about the fact that there was an applicant who was in that verification process, and by inviting these unions, his intention was to call them there to be fair and transparent.
SIZAKELE BENEDICTOR MTHETHWA
The salient aspects of her evidence are recorded below.
[66] She is currently self-employed but was previously employed by the Department of Education as the Circuit Manager for Sinethemba Circuit.
[67] The second respondent called her to report that she had been told by the SADTU Chairperson that a page was missing from her CV and she was sifted out, and then she was complaining that she did not know why because everything was intact when she applied. She told the second respondent that she will refer the matter to their HR Coordinator and fortunately, Miss Masondo was with her at that time.
[68] Ms Masondo told her that she was going to call Mr Maharaj. Thereafter, Ms Masondo told her that Mr Maharaj said that they must go back to the Circuit Office and check.
[69] They then went to the Circuit Office and Ms Masondo asked Nomcebo to bring the schedule of the sifted out candidates and then they saw that the second respondent was indeed sifted out. Ms Masondo also asked Nomcebo to bring the CV’s for all the schools that the second respondent had applied at and they saw that for all other posts everything was intact. Ms Masondo then requested Nomcebo to check the envelope and when they were checking it, they found that the missing last page of the CV was stuck inside the envelope.
Under cross-examination by the applicant, she testified that:
[70] She agreed that the schedule of sifted in applications did not have the name of the second respondent meaning that the second respondent was correct in reporting to her that her CV was sifted out.
[71] She was not part of the verification process.
DAPHNEY MASONDO
The salient aspects of her evidence are recorded below.
[72] She works at the Mnambithi Circuit Office and had been there since 2002.
[73] Ms Mthethwa reported to her that there was a complaint from the second respondent that she had been sifted out. When they reported this to Mr Maharaj, he sent Ms Mthethwa and her to the office to have a look at the CV’s because the complaint was that the second respondent had applied to other schools besides Wittekleinfontein. They called the Admin Clerk, Nomcebo Radebe and asked her to give them all the second respondent’s applications. They found that in all her other applications, she had been sifted in and everything was there, but in the school where she was the Acting Principal they realized that her CV was tampered with. They asked Nomcebo to bring the envelope and when Nomcebo came back with the envelope they found the paper inside. They then reported to Mr Maharaj that they found the missing page and it was inside the envelope.
Under cross-examination by the applicant, she testified that:
[74] She was familiar with the verification process after the sifting but stated that she was not part of the sifting process nor did she do the verification process, everything was done by Mr Maharaj.
NOMCEBO BABONGILE RADEBE
The salient aspects of her evidence are recorded below.
[75] She is employed in the Mnambithi Circuit Office as an Admin Clerk.
[76] The day after the Circuit Management had a meeting with the Unions, the second respondent came and wanted to know the reason why she was sifted out. She gave the second respondent the schedule of sifted out applications and she also wanted to see her CV. The last page of her CV was missing, and she reported this case to Ms Mthethwa.
[77] Thereafter, Ms Masondo and Ms Mthethwa came and asked her to bring the applications forms for all the posts that the second respondent had applied to. She then gave it to them, and they checked and found out that in every other application everything was fine and she was sifted in, except for Wittekleinfontein.
[78] Thereafter, they asked her to bring the envelopes and she was asked to open the envelopes and check, and she then found the paper was stuck inside the envelope.
Under cross-examination by the applicant, she testified that:
[79] It was normal for applicants to come to her office.
[80] She agreed that she used the Checklist when sifting in and out a CV. She agreed that these two names on the Schedule of sifted out applications were sifted out as per the Checklist and this was the schedule that was taken to union.
EUNICE DUMISILE NTSHABA
The salient aspects of her evidence are recorded below.
[81] She had been employed at Wittekleinfontein Primary School since 2002. On 1 November 2018 she was appointed as the Acting Principal and in 2019 she was appointed as the Principal.
[82] She had applied for the post and was called by the SADTU Chairperson, Mr Mbatha, who was part of the process, and he informed her that she was sifted out from the post where she was an Acting Principal. He told her that the last page was missing, and he advised her to go to the Circuit Office to check.
[83] She then complained to Mr Mbatha that she was not happy at all because when she saw the CV, it showed that it had been tampered with. She asked him to represent her and told him that she was going to lodge a grievance, and then Mbatha told her that he was not going to help her because he was also an applicant to the same post, and he referred her to Mr Khuzwayo.
[84] She went to the Circuit Office and they showed her the CV and the list. When she looked at the CV, she was not happy because it clearly showed that it had been tampered with and she told them that she was going to lodge a grievance. Mr Khuzwayo helped her to lodge the grievance. After they lodged the grievance, Mr Khuzwayo phoned her and informed her that the Department of Education had rectified their mistake so now she was back on the list. He said that Mr Maharaj told him that the page was stuck inside the envelope by mistake.
Under cross-examination by the second respondent, she testified that:
[85] Mr Mbatha was the chairperson of SADTU at Gabamakthini Branch, Mr Khuzwayo was the secretary at the same branch, and she was also a SADTU member.
[86] Mr Khuzwayo, together with her, lodged a grievance. Mr Khuzwayo had told her that he had spoken to Mr Maharaj and he said that the Department had rectified the mistake.
Under cross-examination by the applicant, she testified that:
[87] Mr Mbatha was part of the process because he was the person who informed her that she was sifted out.
ANALYSIS OF EVIDENCE AND ARGUMENT
I have considered all the arguments of the parties as well as the documentary evidence submitted.
[88] The Applicant claims that the First Respondent committed an unfair labour practice relating to promotion in the sifting in process for the post of Principal at Wittekleinfontein Primary School. The applicant seeks the relief that the appointment of the second respondent be set aside and the process be redone from shortlisting as per the Schedule of Sifted in applications.
[89] The onus is on the applicant to show that the employer’s conduct was unfair.
[90] In terms of the Labour Relations Act, General provisions for arbitration proceedings, section 138(1) reads as follows:
The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities.
[91] This matter was referred for arbitration in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 (“the LRA).
[92] In terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995, Unfair
Labour Practice means any unfair act or omission that arises between an
employer and an employee involving-
(a) unfair conduct by the employer relating to the promotion, demotion,
probation [excluding disputes about dismissal for a reason relating to probation] or training of an employee or relating to the provision of benefits to an employee.
[93] It is common cause that the applicant lodged a grievance which was dismissed. It is common cause that the second respondent was initially sifted out and after lodging a grievance was subsequently sifted in. It is further common cause that her grievance was lodged on her behalf by SADTU. It is not in dispute that after an investigation by the Department Officials, Mr Maharaj contacted the two unions affiliated to the ELRC and only SADTU responded and indicated that they were satisfied with the outcome. It is not in dispute that the second respondent was the Acting Principal of Wittekleinfontein Primary School, was shortlisted, interviewed and subsequently appointed to the post in dispute. It is further not in dispute that the very same union, SADTU lodged the applicant’s grievance and referred her dispute to the Council for arbitration.
[94] In Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) the court held at par [79] “A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.”
[95] In Aries v CCMA & others (2006) 27 ILJ 2324 (LC), the Court held at [16] 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.”
[96] The applicant in her evidence-in-chief testified that she sought clarity as to why the second respondent was sifted in and called for an interview. Under cross-examination she contended initially that it was not that she was not happy that the second respondent was sifted in, but as to who had found the missing page and that she was not happy with the procedure. Under further cross-examination she admitted that she was not happy that the second respondent was sifted in.
[97] She conceded that she would not be happy if it was her in that situation and the Department realised their mistake but did not rectify it, and she further conceded that the Department acting on correcting its mistake would not be wrong. She admitted that she was not prejudiced as a result of the second respondent being sifted in.
[98] The applicant’s witness, Ms Majola could not confirm whether it was her or Miss X that had checked the second respondent’s application during the sifting process.
[99] The first respondent’s version was presented via the testimony of five witness, who all came across as honest; did not hesitate when testifying and were clear and candid in their responses.
[100] Mr Maharaj testified as to the complaint that he had received, the investigation conducted by the officials, the reporting to the unions and their feedback and the rectification of the Department’s mistake. Mr Maharaj testified that there was no prejudice to the applicant or to any of the other candidates. He testified that the intention was to be fair and transparent with the process. He further explained that their normal practice is to avoid a lengthy period of grievances and to fill posts quickly, so schools are not disadvantaged.
[101] Ms Mthethwa, Ms Masondo and Ms Radebe gave an account of their investigation and they all corroborated each other’s version. The second respondent testified as to how she found out that she was sifted out and the fact that Mr Khuzwayo from SADTU lodged her grievance on behalf of her.
[102] In Observatory Girls Primary School & others v Head of Department: Department of Education, Province of Gauteng, Case no 02/15349 [2006] JOL 17802 (W), it was held that strict compliance with relevant guidelines and collective agreements is not necessary, substantial compliance is sufficient.
[103] It is common cause that the Department found the missing page of the second respondent’s CV and rectified its mistake. The applicant’s only contention was the procedure used in sifting in the second respondent. The Procedure Manual referred to did not talk to an error made by the Department therefore I find that the Department received a grievance, investigated the matter, found the missing page and rectified its mistake. This was the correct and reasonable thing to do. Further and importantly, there was no prejudice suffered by the applicant or any of the other candidates.
[104] The applicant has not discharged the burden of showing that the first respondent’s conduct of sifting in the second respondent was an unfair labour practice.
[105] In view of the aforementioned judgments and my reasons above, I am of the view that the conduct of the employer does not constitute an unfair labour practice.
AWARD
[106] The applicant’s dispute is dismissed.
[107] There is no order as to costs.
ELRC Commissioner: P. Jairajh
DATED: 31 MARCH 2021
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