ELRC644-20/21 EC
Text
ELRC 587-2021LP
Award Date:
16 November 2021
Panelist: Seretse Masete
Case No.: ELRC 587-2021LP
Date of hearing: 16 /11/2021
In the ARBITRATION between:
PATRICK ZONDO
(Union / Applicant)
and
DEPARTMENT OF HIGHER EDUCATION AND TRAINING LIMPOPO
(Respondent)
Union/Applicant’s representative: Samuel Setlatjile from Carrim Artoneys
Union/Applicant’s address: 16 Witklip Str Ladana
Telephone: 015 293 1666
Cell: 082 786 1700
Respondent’s representative: TC Nthangeni
Respondent’s address: 58 Schoeman Str Polokwane
Telephone: 015 291 2280
Cell: 072 892 1622
Particulars of proceedings and representation
1. The matter was held virtually on 08 October 2021 at 9h00.
2. The Applicant, Patrick Zondo (employee) was represented by Samuel Setlatjile from Carrim attorneys while the respondent, Limpopo Department of higher Education, (employer), was represented by TC Nthangeni.
3. The proceedings were in English and digitally conducted.
Issues to be decided
4. I have to decide whether or not the conduct of the employer by failing to-shortlist the employee constituted an unfair labour Practice pertaining to promotion.
5. I further have to determine an appropriate remedy should I find that the action of the employer constituted an unfair labour practice against the employee.
Background to the dispute
6. The employee was employed as a lecturer at Waterberg TVET College and did not remember his salary per month at the time of the dispute.
7. He and other candidates applied for a promotional post level 2 but only the candidates with irrelevant qualifications were shortlisted and one appointed.
8. He believed the conduct of the employer amounted to unfair labour practice and wanted the process to be re-started.
9. The employer rejected the employee’s allegations citing that the employee did not meet all the minimum required as set out on the advert and the process was both procedurally and substantively fair.
10. The employer submitted 1 bundle of documents marked A and called two witnesses and the employee party submitted one bundle of documents marked B and testified as a sole witness.
Survey of evidence and arguments
The Employees’ version
The employee, Siphiwe Patrick Zondo testified as a witness under oath as follows;
11. He was a lecturer of Mechanical engineering for about 10 years and his duties were among others lecturing and assessing students. He held a diploma in Mechanical engineering with motor vehicle, computer drafting, drawing design and maintenance engineering. He applied for the post as seen on and met the minimum requirements as per the advert on page 11 of bundle B. He was capable to teach the subjects mentioned in the advert though the subjects which were taught by him were not mentioned in the advert. According to him the employer wanted to marginalise him. The advert was not normal because it was not the usual way of advertising the posts. Electrical qualifications and chemical engineering were irrelevant to the post. The Employment of Educators Act provides on page 29 of bundle B, that the minimum qualification is for example, REQV13 and teaching qualifications. He did not have teaching qualifications but believed he was unfairly treated and further believed there was a high level of nepotism and wanted the commissioner after looking at all the evidence, to set aside the appointment of the appointed candidate.
12. The mentioning of the subjects was very wrong because they were designed for the appointed candidate because his subjects appeared therein though there was no policy or legislation thereto. He lodged the grievance on the matter long after he became aware of it but his condonation was granted. It was put to him that; the employer was therefore not arrogant because the grievance was not there. The campus management was not involved in the profiling of the post, and that was picked up by the SADTU delegate after the interviews. If he was appointed, he would not have raised concern about the non-inclusion of the campus manager but still it would be wrong. He agreed he did not have a teaching qualification though the advert required a teaching qualification. The appointment into the post did not necessarily require a teaching qualification as could be seen on page 29 of bundle B paragraph 2.2 (ii). One of the shortlisted person also did not have a professional education qualification. He did not know who determined the criteria. He wanted the appointed candidate to be demoted because he (employee) was the one who qualified for the position.
The employer’s evidence and arguments
The 1st witness of the employer, F.L Mbebe testified under oath as follows;
13. He was the HR manager at the college and played a role during the selection process of the disputed post. The selection committee made a selection, shortlisted the candidates, interviewed them and made recommendations. The committee during the selection and or the interviews, agreed on certain special criteria and all the members of the panel including the labour organisations agreed on the process. The advert on page 11 of bundle B stated clearly that the post needed candidates with engineering and or related field, it did not specify a particular field of engineering like chemical, mechanical etc. The employee was not shortlisted because he did not meet the minimum requirement as he did not have professional and or Teachers qualifications. The process was fair without any corruption and the union also agreed with the panel.
14. The appointed candidate had Chemical engineering and Teachers qualifications. He denied that the post required Mechanical engineering and that if the employer wanted a specific qualification it would have so indicated on the advert. He further denied the employee qualified as per paragraph 2.2 (ii) on page 29 of bundle B because that paragraph must be read as a package with the other paragraphs. He confirmed that one candidate, a Ramoshaba, did not have teacher’s qualifications but he was an artisan which was related to teacher’s qualifications.
2nd witness, Tukudi Simon Senong testified under oath as follows;
15. He was a deputy principal Human Resources Services at the central offices of Waterberg Tvet College. The advert on page 11 of bundle B required an REQV13 and a Teachers qualification. The employee had REQV13 but did not have Teachers qualifications. The post needed REQV13 in engineering and related field which was open to any candidate with an engineering qualifications. Page 29 of bundle B paragraph 2.2 (i) and (II), must be read as a package not in isolation. Roman figure (ii) meant that if one could not find suitable candidates meeting the requirements in Roman figure (i). He denied that there was corruption, nepotism and discrimination because all members of the panel including the union agreed on the process and there was no dissatisfaction. Mechanical engineering, Chemical engineering, Electrical engineering and others, are related and the head of department for them has electrical engineering. It could not be correct for the appointed candidate to be demoted because he too qualified and won the interviews.
Analysis of the evidence and arguments
16. In my analyses, I am not going to rewrite the evidence led by the parties through their witnesses and documents. My analyses will however be a summary based on such evidence led by the parties.
17. I agree with the employee that in terms of Section 185 (1)(a) of the Act, every employee has the right not to be subjected to an unfair labour practice. I also agree that Section 186(2)(a) of the Act provides that unfair labour practice means any unfair act or omission that arises between an employer an employee involving unfair conduct by the employer relating to the promotion, demotion and probation or training of an employee or relating to the provision of benefits to an employee. The Act further made provisions in terms of Section 191(1) that if there is a dispute about the unfair labour practice, the alleging employee may refer the matter to the Council with jurisdiction or to the Commission, and this is what the employee rightfully did. Now, let me deal with whether the employer by having failed to shortlist the employee, committed an unfair labour practice against him.
18. The employee quoted the books by Swanepoel et al (2003:31), Gerber et al(1992:235) an Robert (2005:77). What was common in the three books, was that, Swanepoel said the best individual should be selected, Gerber said, a person who meets the required standard and Robert said selection is separating the least potential from the most potential. Going back to the advert on page 11 of Bundle B, the employer’s witnesses testified that the employee was not short listed because he did not have teacher’s qualification as required by the advert, and the employee confirmed that. The employee’s argument was that he was supposed to have been shortlisted as per paragraph 2.2(ii) of the employment of Educators Act on page 29 of bundle B. which provides that, notwithstanding paragraph 2.2 (i), a person who may be appointed in any of the following posts, was not required to be a qualified educator. The posts thereto were mentioned on page 29 of bundle B and included post for the offering of instructional programmes in the engineering field of study. Paragraph 2.2(i), provides that in order to be appointed as an educator, a person is required to have REQV13 which must include appropriate training as an educator. I do not agree with the employee, because paragraph 2.2(ii) should not be read in isolation, all the paragraphs from 2.2(i) to (vii) on page 29 of bundle B should be read as a package and be considered because the rest of paragraph 2.2, deals with appointment and or promotion. Paragraph (vii) for instance, provides that; “notwithstanding the provisions in paragraphs (ii) to (vi), preference should always in all cases be given to appropriately qualified applicants for any educator post”. Although the onus of proof lies with the employee, I also acknowledge that the employer also is in the same token, obliged to defend challenges on the substantive and procedural fairness if it wishes to avoid negative outcome, see Pamplin v Western Cape Education Department (C 1034/2015) [2018] ZALCCT, which further held that there is an obligation on the employer to place evidence that it acted fairly and in good faith during the promotion exercise. My take is, on the balance of probability, the employer succeeded in placing the convincing evidence against those of the employee.
19. Furthermore, in applying the three books in paragraph 18 above, the appointed candidate had REQV13 including appropriate training as an educator and the employee had REQV13 but appropriate training as an educator. What could have a reasonable man done here, shortlisted both the candidates or shortlisted only the one with REQV13 including an appropriate training as an educator! My take is the best candidate who met the minimum requirements would be the one with the most potential and should be the one to be shortlisted as per the books quoted in paragraph 18 above. It was difficult without evidence to believe that the employer designed the advert to suit the appointed candidate and that the employer wanted to marginalise the employee. This version of the employee, was not corroborated. It was held in Buffalo City Public FET College v CCMA and others (P 372/12) [2016] that in unfair labour practice dispute, particularly in those relating to promotions, the onus is on the employee to prove that he / she is suitable and better candidate for the position in question, also see IMATU obo Visagie v Mogale City Municipality (JR 86/15) [2017] ZALCJHB 432. In this case the employee could not prove that he met all the minimum requirements mentioned in the advert. He, through his own testimony, indicated that he did not have a teacher’s diploma.
20. The other argument by the employee was that he was the best qualified candidate because he had mechanical engineering diploma while the appointed candidate had electrical engineering diploma. He further brought in the issue of an interpretation which I am not going to dwell much on it, because this matter was not about interpretation and application, and some of the principles of interpretation, is that the words used in the documents must be given their ordinary meaning unless the context indicated otherwise. Furthermore, in parole evidence rule, if the meaning of the words used are clear and unambiguous, evidence is not admissible to contradict, add or modify that meaning, see Kwazulu Natal Joint Liason Committee v MEC for the Department of Education, Kwazulu-Natal and others 2013 (4) SA 262 (CC) and KPGM chartered Accountants v Securefin Ltd 2009 (4) SA 399 (SCA) respectively. The argument of interpretation is therefore not necessarily relevant in this matter. The advert stated clearly that it needed an education specialist in engineering and related designs. The requirements were open to any qualification in engineering in terms of the advert. There was no evidence led to show that the employee was not shortlisted because of his mechanical engineering qualifications. There was also no evidence led to show that the appointed candidate was shortlisted because he had electrical engineering qualification, the advert required any engineering without indicating any specific engineering field. In terms of the advert, I did not see what could be linked to a requirement in mechanical engineering as per the argument by the employee. He argued that the person to be appointed was required to have qualification in mechanical engineering and not any other qualification in engineering, no other meaning. When I looked at the advert on page 11 of bundle B, the post to me, was more of a managerial / supervisory and or coordinating role. The duties thereof, was to coordinate, liaise, supervise, oversee, managing all curriculum matters, etc. The purpose for creating the post looked more to be for management and or supervision and coordination. There was no indication of mechanical engineering as a requirement on the advert.
21. On the issue of one Ramoshaba who was shortlisted without a teacher’s diploma, the employer’s witness testified that Ramoshaba had a related professional qualification “Artisan”, and the employee did not challenge this version. Having considered all the evidence led by the parties and my analyses above, I am satisfied that on the balance of probability, there was no unfair labour practice committed against the employee.
Award
22. The Employer, Limpopo Department of Education, did not commit an unfair labour practice by not having shortlisted the employee, Patrick Zondo, for the post of education Specialist, Engineering and related Design, REF;WTVET 2018/86.
23. The employee’s case is hereby dismissed.
24. No order as to cost.
Seretse Masete Date 08/12/2021
Panellist
Case No.: ELRC 587-2021LP
Date of hearing: 16 /11/2021
In the ARBITRATION between:
PATRICK ZONDO
(Union / Applicant)
and
DEPARTMENT OF HIGHER EDUCATION AND TRAINING LIMPOPO
(Respondent)
Union/Applicant’s representative: Samuel Setlatjile from Carrim Artoneys
Union/Applicant’s address: 16 Witklip Str Ladana
Telephone: 015 293 1666
Cell: 082 786 1700
Respondent’s representative: TC Nthangeni
Respondent’s address: 58 Schoeman Str Polokwane
Telephone: 015 291 2280
Cell: 072 892 1622
Particulars of proceedings and representation
1. The matter was held virtually on 08 October 2021 at 9h00.
2. The Applicant, Patrick Zondo (employee) was represented by Samuel Setlatjile from Carrim attorneys while the respondent, Limpopo Department of higher Education, (employer), was represented by TC Nthangeni.
3. The proceedings were in English and digitally conducted.
Issues to be decided
4. I have to decide whether or not the conduct of the employer by failing to-shortlist the employee constituted an unfair labour Practice pertaining to promotion.
5. I further have to determine an appropriate remedy should I find that the action of the employer constituted an unfair labour practice against the employee.
Background to the dispute
6. The employee was employed as a lecturer at Waterberg TVET College and did not remember his salary per month at the time of the dispute.
7. He and other candidates applied for a promotional post level 2 but only the candidates with irrelevant qualifications were shortlisted and one appointed.
8. He believed the conduct of the employer amounted to unfair labour practice and wanted the process to be re-started.
9. The employer rejected the employee’s allegations citing that the employee did not meet all the minimum required as set out on the advert and the process was both procedurally and substantively fair.
10. The employer submitted 1 bundle of documents marked A and called two witnesses and the employee party submitted one bundle of documents marked B and testified as a sole witness.
Survey of evidence and arguments
The Employees’ version
The employee, Siphiwe Patrick Zondo testified as a witness under oath as follows;
11. He was a lecturer of Mechanical engineering for about 10 years and his duties were among others lecturing and assessing students. He held a diploma in Mechanical engineering with motor vehicle, computer drafting, drawing design and maintenance engineering. He applied for the post as seen on and met the minimum requirements as per the advert on page 11 of bundle B. He was capable to teach the subjects mentioned in the advert though the subjects which were taught by him were not mentioned in the advert. According to him the employer wanted to marginalise him. The advert was not normal because it was not the usual way of advertising the posts. Electrical qualifications and chemical engineering were irrelevant to the post. The Employment of Educators Act provides on page 29 of bundle B, that the minimum qualification is for example, REQV13 and teaching qualifications. He did not have teaching qualifications but believed he was unfairly treated and further believed there was a high level of nepotism and wanted the commissioner after looking at all the evidence, to set aside the appointment of the appointed candidate.
12. The mentioning of the subjects was very wrong because they were designed for the appointed candidate because his subjects appeared therein though there was no policy or legislation thereto. He lodged the grievance on the matter long after he became aware of it but his condonation was granted. It was put to him that; the employer was therefore not arrogant because the grievance was not there. The campus management was not involved in the profiling of the post, and that was picked up by the SADTU delegate after the interviews. If he was appointed, he would not have raised concern about the non-inclusion of the campus manager but still it would be wrong. He agreed he did not have a teaching qualification though the advert required a teaching qualification. The appointment into the post did not necessarily require a teaching qualification as could be seen on page 29 of bundle B paragraph 2.2 (ii). One of the shortlisted person also did not have a professional education qualification. He did not know who determined the criteria. He wanted the appointed candidate to be demoted because he (employee) was the one who qualified for the position.
The employer’s evidence and arguments
The 1st witness of the employer, F.L Mbebe testified under oath as follows;
13. He was the HR manager at the college and played a role during the selection process of the disputed post. The selection committee made a selection, shortlisted the candidates, interviewed them and made recommendations. The committee during the selection and or the interviews, agreed on certain special criteria and all the members of the panel including the labour organisations agreed on the process. The advert on page 11 of bundle B stated clearly that the post needed candidates with engineering and or related field, it did not specify a particular field of engineering like chemical, mechanical etc. The employee was not shortlisted because he did not meet the minimum requirement as he did not have professional and or Teachers qualifications. The process was fair without any corruption and the union also agreed with the panel.
14. The appointed candidate had Chemical engineering and Teachers qualifications. He denied that the post required Mechanical engineering and that if the employer wanted a specific qualification it would have so indicated on the advert. He further denied the employee qualified as per paragraph 2.2 (ii) on page 29 of bundle B because that paragraph must be read as a package with the other paragraphs. He confirmed that one candidate, a Ramoshaba, did not have teacher’s qualifications but he was an artisan which was related to teacher’s qualifications.
2nd witness, Tukudi Simon Senong testified under oath as follows;
15. He was a deputy principal Human Resources Services at the central offices of Waterberg Tvet College. The advert on page 11 of bundle B required an REQV13 and a Teachers qualification. The employee had REQV13 but did not have Teachers qualifications. The post needed REQV13 in engineering and related field which was open to any candidate with an engineering qualifications. Page 29 of bundle B paragraph 2.2 (i) and (II), must be read as a package not in isolation. Roman figure (ii) meant that if one could not find suitable candidates meeting the requirements in Roman figure (i). He denied that there was corruption, nepotism and discrimination because all members of the panel including the union agreed on the process and there was no dissatisfaction. Mechanical engineering, Chemical engineering, Electrical engineering and others, are related and the head of department for them has electrical engineering. It could not be correct for the appointed candidate to be demoted because he too qualified and won the interviews.
Analysis of the evidence and arguments
16. In my analyses, I am not going to rewrite the evidence led by the parties through their witnesses and documents. My analyses will however be a summary based on such evidence led by the parties.
17. I agree with the employee that in terms of Section 185 (1)(a) of the Act, every employee has the right not to be subjected to an unfair labour practice. I also agree that Section 186(2)(a) of the Act provides that unfair labour practice means any unfair act or omission that arises between an employer an employee involving unfair conduct by the employer relating to the promotion, demotion and probation or training of an employee or relating to the provision of benefits to an employee. The Act further made provisions in terms of Section 191(1) that if there is a dispute about the unfair labour practice, the alleging employee may refer the matter to the Council with jurisdiction or to the Commission, and this is what the employee rightfully did. Now, let me deal with whether the employer by having failed to shortlist the employee, committed an unfair labour practice against him.
18. The employee quoted the books by Swanepoel et al (2003:31), Gerber et al(1992:235) an Robert (2005:77). What was common in the three books, was that, Swanepoel said the best individual should be selected, Gerber said, a person who meets the required standard and Robert said selection is separating the least potential from the most potential. Going back to the advert on page 11 of Bundle B, the employer’s witnesses testified that the employee was not short listed because he did not have teacher’s qualification as required by the advert, and the employee confirmed that. The employee’s argument was that he was supposed to have been shortlisted as per paragraph 2.2(ii) of the employment of Educators Act on page 29 of bundle B. which provides that, notwithstanding paragraph 2.2 (i), a person who may be appointed in any of the following posts, was not required to be a qualified educator. The posts thereto were mentioned on page 29 of bundle B and included post for the offering of instructional programmes in the engineering field of study. Paragraph 2.2(i), provides that in order to be appointed as an educator, a person is required to have REQV13 which must include appropriate training as an educator. I do not agree with the employee, because paragraph 2.2(ii) should not be read in isolation, all the paragraphs from 2.2(i) to (vii) on page 29 of bundle B should be read as a package and be considered because the rest of paragraph 2.2, deals with appointment and or promotion. Paragraph (vii) for instance, provides that; “notwithstanding the provisions in paragraphs (ii) to (vi), preference should always in all cases be given to appropriately qualified applicants for any educator post”. Although the onus of proof lies with the employee, I also acknowledge that the employer also is in the same token, obliged to defend challenges on the substantive and procedural fairness if it wishes to avoid negative outcome, see Pamplin v Western Cape Education Department (C 1034/2015) [2018] ZALCCT, which further held that there is an obligation on the employer to place evidence that it acted fairly and in good faith during the promotion exercise. My take is, on the balance of probability, the employer succeeded in placing the convincing evidence against those of the employee.
19. Furthermore, in applying the three books in paragraph 18 above, the appointed candidate had REQV13 including appropriate training as an educator and the employee had REQV13 but appropriate training as an educator. What could have a reasonable man done here, shortlisted both the candidates or shortlisted only the one with REQV13 including an appropriate training as an educator! My take is the best candidate who met the minimum requirements would be the one with the most potential and should be the one to be shortlisted as per the books quoted in paragraph 18 above. It was difficult without evidence to believe that the employer designed the advert to suit the appointed candidate and that the employer wanted to marginalise the employee. This version of the employee, was not corroborated. It was held in Buffalo City Public FET College v CCMA and others (P 372/12) [2016] that in unfair labour practice dispute, particularly in those relating to promotions, the onus is on the employee to prove that he / she is suitable and better candidate for the position in question, also see IMATU obo Visagie v Mogale City Municipality (JR 86/15) [2017] ZALCJHB 432. In this case the employee could not prove that he met all the minimum requirements mentioned in the advert. He, through his own testimony, indicated that he did not have a teacher’s diploma.
20. The other argument by the employee was that he was the best qualified candidate because he had mechanical engineering diploma while the appointed candidate had electrical engineering diploma. He further brought in the issue of an interpretation which I am not going to dwell much on it, because this matter was not about interpretation and application, and some of the principles of interpretation, is that the words used in the documents must be given their ordinary meaning unless the context indicated otherwise. Furthermore, in parole evidence rule, if the meaning of the words used are clear and unambiguous, evidence is not admissible to contradict, add or modify that meaning, see Kwazulu Natal Joint Liason Committee v MEC for the Department of Education, Kwazulu-Natal and others 2013 (4) SA 262 (CC) and KPGM chartered Accountants v Securefin Ltd 2009 (4) SA 399 (SCA) respectively. The argument of interpretation is therefore not necessarily relevant in this matter. The advert stated clearly that it needed an education specialist in engineering and related designs. The requirements were open to any qualification in engineering in terms of the advert. There was no evidence led to show that the employee was not shortlisted because of his mechanical engineering qualifications. There was also no evidence led to show that the appointed candidate was shortlisted because he had electrical engineering qualification, the advert required any engineering without indicating any specific engineering field. In terms of the advert, I did not see what could be linked to a requirement in mechanical engineering as per the argument by the employee. He argued that the person to be appointed was required to have qualification in mechanical engineering and not any other qualification in engineering, no other meaning. When I looked at the advert on page 11 of bundle B, the post to me, was more of a managerial / supervisory and or coordinating role. The duties thereof, was to coordinate, liaise, supervise, oversee, managing all curriculum matters, etc. The purpose for creating the post looked more to be for management and or supervision and coordination. There was no indication of mechanical engineering as a requirement on the advert.
21. On the issue of one Ramoshaba who was shortlisted without a teacher’s diploma, the employer’s witness testified that Ramoshaba had a related professional qualification “Artisan”, and the employee did not challenge this version. Having considered all the evidence led by the parties and my analyses above, I am satisfied that on the balance of probability, there was no unfair labour practice committed against the employee.
Award
22. The Employer, Limpopo Department of Education, did not commit an unfair labour practice by not having shortlisted the employee, Patrick Zondo, for the post of education Specialist, Engineering and related Design, REF;WTVET 2018/86.
23. The employee’s case is hereby dismissed.
24. No order as to cost.
Seretse Masete Date 08/12/2021
Panellist