ELRC644-20/21 EC
Text
PSES 283-21/22EC
Award Date:
19 March 2022
Case Number: PSES 283-21/22EC
Commissioner: Catherine Willows
Date of Award: 19 March 2022
In the matter between
MRS CHARLENE BILLETT
(Applicant)
And
EASTERN CAPE DEPARTMENT OF EDUCATION
1st Respondent
NAPTOSA obo MRS ANITA BELL
2nd Respondent
SCHOOL GOVERNING BODY OF HILLCREST PRIMARY SCHOOL
3rd Respondent
DETAILS OF HEARING AND REPRESENTATIONS
1. This arbitration was heard on the 10th March 2022 at the premises of the District Department of Education, Sutton Road, Sidwell, Gqeberha, Eastern Cape.
2. It came before the ELRC in terms of Section 186(2) (a) of the Labour Relations Act 66 of 1995 (the LRA).
3. Advocate B Harker instructed by D Bezuidenhout of Daniel Bezuidenhout Attorneys appeared for the Applicant, Mrs Charlene Billett. The 1st Respondent was represented by Mrs A Slabbert, Assistant Director: Labour Relations Officer. The 2nd Respondent, Mrs Anita Bell, was represented by her Union Representative of NAPTOSA, Mr A Adams.
4. Interpretation services were provided by Mr D Kova.
5. Pre-Arbitration minutes were compiled by the parties on 18 November 2021 and submitted.
6. Both the Applicant and 1st Respondent submitted bundle of documents, identified and categorised as “Applicant Bundle A”; “Applicant Supplementary Bundle” and “Respondent Bundle”, the evidence of which was accepted unless specifically placed in dispute.
7. The proceedings were digitally recorded, and hand-written notes are on file.
8. The Applicant and the 1st Respondent submitted closing arguments on 17 March 2022, and such have been considered in preparation of this Award.
9. I have considered all the evidence and argument, but because section 138 (7) of the Labour Relations Act, 66 of 1995, as amended requires brief reasons, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and determination of the dispute.
ISSUE TO BE DECIDED
10. The issue to be determined is whether the 1st Respondent’s conduct of not appointing the Applicant for Post of HOD PL2 of Hillcrest Primary School, Gqeberha, Volume 2-2020/471 advertised in Education Post Bulletin constitutes an unfair labour practice in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended.
11. In terms of the pre-arbitration minutes filed by the parties on 9 November 2020, the issue in dispute for crisp determination is whether the 2nd Respondent met the requirements for the position to which she was ultimately appointed to.
12. The Applicant is challenging both the substantive and procedural fairness of the appointment of the 2nd Respondent to the post of HOD PL2 of Hillcrest Primary School, Gqeberha, a position of which the successful incumbent was appointed as from 10 July 2020.
13. The Applicant, in terms of relief, is requesting the appointment to be set aside and for the process to be started afresh.
SURVEY OF EVIDENCE AND ARGUMENT
APPLICANTS’ CASE
14. The Applicant submitted under oath that she commenced employment on 1 July 2008 and was first appointed as a Grade 3 Educator but then moved to Grade 2 Educator at Hillcrest Primary School, a position she currently occupies.
15. She stated that the position of HOD PL2 of Hillcrest Primary School, Gqeberha, was advertised initially in 2019 but later withdrawn. The position was re-advertised on 29 January 2020 and she again applied for such. She was shortlisted alongside AJ Bell; CM Bockman and R Raubenheimer.
16. The selection panel was convened on 3 March 2020 and the interviews sat on 16 March 2020. The Applicant was awarded a score of one hundred and fifty-two (152); AJ Bell (184); R Raubenheimer (164) and C Brockman (155). Votes were then taken with the Applicant being awarded one (1) vote and the 2nd Respondent four (4) votes.
17. The outcome of the interview process was that the 2nd Respondent was recommended for the position with the highest score, with the Applicant in second-place. The recommendation was signed off by the Chairperson of the Panel, H Potgieter and Secretary, Ms S Tune with the ratification of such dated 23 March 2020.
18. The Applicant submitted that her qualifications included an Advanced Certificate in Education from North-West University (NWU) in Foundation Phase and she believed that she was the best-qualified candidate for the position. She did not believe that the 2nd Respondent had the requisite qualifications for appointment to the position.
19. In closing, the Applicant submitted that on a balance of probabilities, she was subjected to an unfair labour practice in respect of promotions and was prejudiced by the unfair labour practice in the absence of which she would have been promoted. Section 23(1) of the Constitution provides that everyone has the right to fair labour practices. The entire section process was flawed, and the points allocated could not be proved to be correct based on the surrounding defects in policy, regulation and the conduct of the SGB.
20. There was furthermore sufficient foundation to argue that the relationship between the SGB and the Trade Unions was of such a nature that the successful candidate was preselected to fulfil the position or was promised the position. The manner in which the posts were advertised gave no indication of what the appropriate requirements are to objectively identify the best suitable candidate. The Applicant was thus prejudiced as the best qualified candidate form which the requisite skills can be garnished and developed.
21. In the non-promotion she suffered patrimonial loss having vested her energy in ensuring qualifications in foundation phase. The Applicant has both experiences in Foundation phase together with the qualification in Foundation phase. Her abilities and skills were not questioned by any of the Respondents, and she had no disciplinary record.
22. Therefore the decision to accept unrelated qualifications must be in conflict with the constitutional right to unfair labour practices.
23. In is therefore submitted that the promotion of Mrs Bell was within the full definition of an unfair labour practice. It was prejudicial to the Applicant, to the Department and to the children.
RESPONDENT’S CASE:
24. The 2nd Respondent, Mrs Anita Bell, testified under oath. She submitted that she presently holds the position of Head of Department: Foundation Phase at Hillcrest Primary School and is the successful incumbent of the disputed position.
25. She stated that she has been teaching for fourteen (14) years and holds a Senior Primary Teacher’s Diploma from Dower College of Education; ACE in Professional Education Development from North-West University (NWU) and a Bachelor of Education (Honours) from NWU.
26. She stated that she has the necessary qualifications to be appointed to the position in dispute and since 2013 has only taught Foundation Phase.
27. In closing, the 1st Respondent’s representative submitted that the 2nd Respondent has an Advanced Certificate in Education (ACE) in Life Skills and a B ed Honours degree and attended all relevant courses and seminars relating to teaching in the Foundation phase. The Applicant subsequently failed in proving that the Respondent committed an unfair labour practice by appointing Mrs. Bell as HOD: Foundation phase at Hillcrest Primary School. It was requested that the matter be dismissed.
28. The 2nd Respondent’s Representative submitted in closing that the 2nd Respondent has a 3 Year Teaching Diploma DE (111) conferred on her in 1998 along with an Advanced Certificate in Education (Foundation Phase) conferred on her in 2018.
29. The 2nd Respondent stated that when she applied for the advertised post, she believed that she had all the attributes required to be appointed. The advert had not indicated any qualifications but had stated that the incumbent needed experience in grades 1- 3. She confirmed that she was shortlisted, interviewed and informed in June 2020 that she was the successful candidate. She felt it is unfair to claim she is not qualified to teach be appointed as an Head of Department in Foundation phase as he was appointed in 2013 by the ECDOE into a substantive vacant post in foundation phase. She had taught all the relevant subjects and she had met all the criteria in the advert.
30. She furthermore confirmed that according to her transcripts, she was qualified to teach Foundation Phase, Senior Phase and at FET Level.
31. It was therefore requested that the Applicant’s claim be dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENTS
32. Section 186 (2) of the Labour Relations Act 66 of 1995 (“the LRA”) defines unfair labour practice as:-
“any unfair act or omission that arises between an employer and an employee involving-
a. Unfair conduct by the employer relating to the promotion....”
33. The test is therefore whether the conduct or omission of the employer was unfair when coming to the decision to promote a particular employee.
34. In determining whether the employer was fair or not the following have to be taken into account: -
• Whether the failure or refusal to promote was caused by unacceptable irrelevant or invidious considerations on the part of the employer or-
• Whether the employer’s decision was arbitrary, or capricious, or unfair or
• Whether the employer failed to apply its mind to the promotion of the employee; or
• Whether the employer’s decision not to promote was motivated by bad faith;
• Whether the employer’s decision not to promote was discriminatory,
• Whether there were insubstantial reasons for the employer’s decision not to promote.
• Whether the employer’s decision not to promote was based on a wrong principle.
• Whether the decision was taken in a biased manner.
(see City of Cape Town v SA Municipal Workers Union on behalf of Sylvester and others (2013) 34 ILJ 1156 (LC).
35. It is trite that the onus of proof in matters relating to the unfair labour practice rests with the applicant. The applicant has to prove that the employer acted in one or more of the above instances.
36. The Applicant in this dispute bears the onus to prove that the Respondent committed an unfair labour practice relating to promotion in relation to her. She needs to prove that the dispute referred is indeed related to a promotion, that there was some form of unfair conduct on the part of the Respondent during the promotion process and that such unfair conduct constituted an unfair labour practice and; that she is entitled to the relief sought.
37. In deciding whether conduct relating to a promotion was unfair, an arbitrator in a promotion dispute has a very limited function and is in a similar position to that of an adjudicator called upon to review a decision made by a functionary or a body vested with a wide statutory discretion.
38. There are three basic requirements for a fair appointment or promotion. The procedure must have been fair, there must have been no unfair discrimination, and the decision must not have been grossly unreasonable.
39. Expressed somewhat differently, the employee must demonstrate that she was overlooked for promotion on the basis of some unacceptable, irrelevant or invidious comparison. She must show that on the criteria used to select another person above her, she stood head and shoulders above that person (see Grogan, J. Workplace Law, 6th Ed. Juta, Cape Town. 2001 at 235 and Ndlovu v CCMA and Others(2000) 21 ILl 1653 (LC) at 1653H).
40. An employee who refers a promotion dispute must do more than just demonstrate that she has the minimum advertised qualifications and experience. She must allege and prove that the decision not to appoint her was unfair (see Ndlovu v CCMA (2000) 21 ILJ 1653 (LC)). Mere unhappiness or a perception of unfairness does not establish unfair conduct. What is fair depends upon the circumstances of a particular case and essentially involves a value judgment (see National Education Health & Allied Workers Union v UCT (2003) 24 ILJ 95 (CC) par 33).
41. The issue to be determined is whether the 1st Respondent’s conduct of not appointing the Applicant for Post of HOD PL2 of Hillcrest Primary School, Gqeberha, Volume 2-2020/481 advertised in Education Post Bulletin constitutes an unfair labour practice in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended.
42. More specifically, the issue in dispute for crisp determination is whether the 2nd Respondent met the requirements for the position to which she was ultimately appointed to.
43. The Applicant is challenging both the substantive and procedural fairness of the appointment of the 2nd Respondent to the post of HOD PL2 of Hillcrest Primary School, Gqeberha, a position of which the successful incumbent was appointed as from 10 July 2020.
44. Chapter B of Personnel Administrative Measures (“PAM”) (ELRC Collective Agreement 1 of 2008) provides at Chapter B.2.1.1.2 that the educational qualification for a departmental head is that of a recognised three-year or four-year qualification, which includes professional teacher qualification.
45. The statutory requirements is registration with SACE as professional educator with competencies and skills being: advanced knowledge of teaching as provided for in the professional qualification; good teaching and assess-skills; good extra and co-curricular skills; good people management; good administrative skills; good communication skills and 3 years of actual teaching experience.
46. The Applicant disputed that the 2nd Respondent held the requisite professional qualifications however she was unable to expound upon the basis of such. It was established by the 2nd Respondent that she did possess legitimate professional qualifications that met the requirements as provided in PAM.
47. The Applicant consistently asserted that it was her “opinion” and “belief” that the 2nd Respondent was not suitably qualified for the position in dispute. Whilst this would be a common belief in any unsuccessful candidate, it is not grounded upon any legal basis. I therefore fail to see upon what basis the Applicant bases her claim upon. The 2nd Respondent met the requirements as provided for in PAM and no impropriety or gross unreasonableness was alleged in the shortlisting or interview panel nor was any of such submitted in evidence.
48. I cannot negate the incidence of onus that rests upon the Applicant that the decision not to appoint her was on the basis of some unacceptable, irrelevant or invidious comparison.
49. It follows that in my assessment of the evidence and explanations given by the parties, that sufficient evidence was not tendered in order to support a version that the actions of the Respondent were unfair and grossly unreasonable. I am not persuaded to interfere with the managerial prerogative of an employer where such discretion was exercised capriciously, or for unsubstantial reasons or based upon a wrong principle or in a biased manner.
50. The Applicant has not succeeded in discharging the onus to prove his claim of unfair labour practice based on promotion by the 1st Respondent.
51. In light of the above I make the following award.
AWARD
a) The Applicant’s application fails.
b) No order as to costs is made.
Signature:
Catherine Willows
ELRC Panellist
Commissioner: Catherine Willows
Date of Award: 19 March 2022
In the matter between
MRS CHARLENE BILLETT
(Applicant)
And
EASTERN CAPE DEPARTMENT OF EDUCATION
1st Respondent
NAPTOSA obo MRS ANITA BELL
2nd Respondent
SCHOOL GOVERNING BODY OF HILLCREST PRIMARY SCHOOL
3rd Respondent
DETAILS OF HEARING AND REPRESENTATIONS
1. This arbitration was heard on the 10th March 2022 at the premises of the District Department of Education, Sutton Road, Sidwell, Gqeberha, Eastern Cape.
2. It came before the ELRC in terms of Section 186(2) (a) of the Labour Relations Act 66 of 1995 (the LRA).
3. Advocate B Harker instructed by D Bezuidenhout of Daniel Bezuidenhout Attorneys appeared for the Applicant, Mrs Charlene Billett. The 1st Respondent was represented by Mrs A Slabbert, Assistant Director: Labour Relations Officer. The 2nd Respondent, Mrs Anita Bell, was represented by her Union Representative of NAPTOSA, Mr A Adams.
4. Interpretation services were provided by Mr D Kova.
5. Pre-Arbitration minutes were compiled by the parties on 18 November 2021 and submitted.
6. Both the Applicant and 1st Respondent submitted bundle of documents, identified and categorised as “Applicant Bundle A”; “Applicant Supplementary Bundle” and “Respondent Bundle”, the evidence of which was accepted unless specifically placed in dispute.
7. The proceedings were digitally recorded, and hand-written notes are on file.
8. The Applicant and the 1st Respondent submitted closing arguments on 17 March 2022, and such have been considered in preparation of this Award.
9. I have considered all the evidence and argument, but because section 138 (7) of the Labour Relations Act, 66 of 1995, as amended requires brief reasons, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and determination of the dispute.
ISSUE TO BE DECIDED
10. The issue to be determined is whether the 1st Respondent’s conduct of not appointing the Applicant for Post of HOD PL2 of Hillcrest Primary School, Gqeberha, Volume 2-2020/471 advertised in Education Post Bulletin constitutes an unfair labour practice in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended.
11. In terms of the pre-arbitration minutes filed by the parties on 9 November 2020, the issue in dispute for crisp determination is whether the 2nd Respondent met the requirements for the position to which she was ultimately appointed to.
12. The Applicant is challenging both the substantive and procedural fairness of the appointment of the 2nd Respondent to the post of HOD PL2 of Hillcrest Primary School, Gqeberha, a position of which the successful incumbent was appointed as from 10 July 2020.
13. The Applicant, in terms of relief, is requesting the appointment to be set aside and for the process to be started afresh.
SURVEY OF EVIDENCE AND ARGUMENT
APPLICANTS’ CASE
14. The Applicant submitted under oath that she commenced employment on 1 July 2008 and was first appointed as a Grade 3 Educator but then moved to Grade 2 Educator at Hillcrest Primary School, a position she currently occupies.
15. She stated that the position of HOD PL2 of Hillcrest Primary School, Gqeberha, was advertised initially in 2019 but later withdrawn. The position was re-advertised on 29 January 2020 and she again applied for such. She was shortlisted alongside AJ Bell; CM Bockman and R Raubenheimer.
16. The selection panel was convened on 3 March 2020 and the interviews sat on 16 March 2020. The Applicant was awarded a score of one hundred and fifty-two (152); AJ Bell (184); R Raubenheimer (164) and C Brockman (155). Votes were then taken with the Applicant being awarded one (1) vote and the 2nd Respondent four (4) votes.
17. The outcome of the interview process was that the 2nd Respondent was recommended for the position with the highest score, with the Applicant in second-place. The recommendation was signed off by the Chairperson of the Panel, H Potgieter and Secretary, Ms S Tune with the ratification of such dated 23 March 2020.
18. The Applicant submitted that her qualifications included an Advanced Certificate in Education from North-West University (NWU) in Foundation Phase and she believed that she was the best-qualified candidate for the position. She did not believe that the 2nd Respondent had the requisite qualifications for appointment to the position.
19. In closing, the Applicant submitted that on a balance of probabilities, she was subjected to an unfair labour practice in respect of promotions and was prejudiced by the unfair labour practice in the absence of which she would have been promoted. Section 23(1) of the Constitution provides that everyone has the right to fair labour practices. The entire section process was flawed, and the points allocated could not be proved to be correct based on the surrounding defects in policy, regulation and the conduct of the SGB.
20. There was furthermore sufficient foundation to argue that the relationship between the SGB and the Trade Unions was of such a nature that the successful candidate was preselected to fulfil the position or was promised the position. The manner in which the posts were advertised gave no indication of what the appropriate requirements are to objectively identify the best suitable candidate. The Applicant was thus prejudiced as the best qualified candidate form which the requisite skills can be garnished and developed.
21. In the non-promotion she suffered patrimonial loss having vested her energy in ensuring qualifications in foundation phase. The Applicant has both experiences in Foundation phase together with the qualification in Foundation phase. Her abilities and skills were not questioned by any of the Respondents, and she had no disciplinary record.
22. Therefore the decision to accept unrelated qualifications must be in conflict with the constitutional right to unfair labour practices.
23. In is therefore submitted that the promotion of Mrs Bell was within the full definition of an unfair labour practice. It was prejudicial to the Applicant, to the Department and to the children.
RESPONDENT’S CASE:
24. The 2nd Respondent, Mrs Anita Bell, testified under oath. She submitted that she presently holds the position of Head of Department: Foundation Phase at Hillcrest Primary School and is the successful incumbent of the disputed position.
25. She stated that she has been teaching for fourteen (14) years and holds a Senior Primary Teacher’s Diploma from Dower College of Education; ACE in Professional Education Development from North-West University (NWU) and a Bachelor of Education (Honours) from NWU.
26. She stated that she has the necessary qualifications to be appointed to the position in dispute and since 2013 has only taught Foundation Phase.
27. In closing, the 1st Respondent’s representative submitted that the 2nd Respondent has an Advanced Certificate in Education (ACE) in Life Skills and a B ed Honours degree and attended all relevant courses and seminars relating to teaching in the Foundation phase. The Applicant subsequently failed in proving that the Respondent committed an unfair labour practice by appointing Mrs. Bell as HOD: Foundation phase at Hillcrest Primary School. It was requested that the matter be dismissed.
28. The 2nd Respondent’s Representative submitted in closing that the 2nd Respondent has a 3 Year Teaching Diploma DE (111) conferred on her in 1998 along with an Advanced Certificate in Education (Foundation Phase) conferred on her in 2018.
29. The 2nd Respondent stated that when she applied for the advertised post, she believed that she had all the attributes required to be appointed. The advert had not indicated any qualifications but had stated that the incumbent needed experience in grades 1- 3. She confirmed that she was shortlisted, interviewed and informed in June 2020 that she was the successful candidate. She felt it is unfair to claim she is not qualified to teach be appointed as an Head of Department in Foundation phase as he was appointed in 2013 by the ECDOE into a substantive vacant post in foundation phase. She had taught all the relevant subjects and she had met all the criteria in the advert.
30. She furthermore confirmed that according to her transcripts, she was qualified to teach Foundation Phase, Senior Phase and at FET Level.
31. It was therefore requested that the Applicant’s claim be dismissed.
ANALYSIS OF EVIDENCE AND ARGUMENTS
32. Section 186 (2) of the Labour Relations Act 66 of 1995 (“the LRA”) defines unfair labour practice as:-
“any unfair act or omission that arises between an employer and an employee involving-
a. Unfair conduct by the employer relating to the promotion....”
33. The test is therefore whether the conduct or omission of the employer was unfair when coming to the decision to promote a particular employee.
34. In determining whether the employer was fair or not the following have to be taken into account: -
• Whether the failure or refusal to promote was caused by unacceptable irrelevant or invidious considerations on the part of the employer or-
• Whether the employer’s decision was arbitrary, or capricious, or unfair or
• Whether the employer failed to apply its mind to the promotion of the employee; or
• Whether the employer’s decision not to promote was motivated by bad faith;
• Whether the employer’s decision not to promote was discriminatory,
• Whether there were insubstantial reasons for the employer’s decision not to promote.
• Whether the employer’s decision not to promote was based on a wrong principle.
• Whether the decision was taken in a biased manner.
(see City of Cape Town v SA Municipal Workers Union on behalf of Sylvester and others (2013) 34 ILJ 1156 (LC).
35. It is trite that the onus of proof in matters relating to the unfair labour practice rests with the applicant. The applicant has to prove that the employer acted in one or more of the above instances.
36. The Applicant in this dispute bears the onus to prove that the Respondent committed an unfair labour practice relating to promotion in relation to her. She needs to prove that the dispute referred is indeed related to a promotion, that there was some form of unfair conduct on the part of the Respondent during the promotion process and that such unfair conduct constituted an unfair labour practice and; that she is entitled to the relief sought.
37. In deciding whether conduct relating to a promotion was unfair, an arbitrator in a promotion dispute has a very limited function and is in a similar position to that of an adjudicator called upon to review a decision made by a functionary or a body vested with a wide statutory discretion.
38. There are three basic requirements for a fair appointment or promotion. The procedure must have been fair, there must have been no unfair discrimination, and the decision must not have been grossly unreasonable.
39. Expressed somewhat differently, the employee must demonstrate that she was overlooked for promotion on the basis of some unacceptable, irrelevant or invidious comparison. She must show that on the criteria used to select another person above her, she stood head and shoulders above that person (see Grogan, J. Workplace Law, 6th Ed. Juta, Cape Town. 2001 at 235 and Ndlovu v CCMA and Others(2000) 21 ILl 1653 (LC) at 1653H).
40. An employee who refers a promotion dispute must do more than just demonstrate that she has the minimum advertised qualifications and experience. She must allege and prove that the decision not to appoint her was unfair (see Ndlovu v CCMA (2000) 21 ILJ 1653 (LC)). Mere unhappiness or a perception of unfairness does not establish unfair conduct. What is fair depends upon the circumstances of a particular case and essentially involves a value judgment (see National Education Health & Allied Workers Union v UCT (2003) 24 ILJ 95 (CC) par 33).
41. The issue to be determined is whether the 1st Respondent’s conduct of not appointing the Applicant for Post of HOD PL2 of Hillcrest Primary School, Gqeberha, Volume 2-2020/481 advertised in Education Post Bulletin constitutes an unfair labour practice in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended.
42. More specifically, the issue in dispute for crisp determination is whether the 2nd Respondent met the requirements for the position to which she was ultimately appointed to.
43. The Applicant is challenging both the substantive and procedural fairness of the appointment of the 2nd Respondent to the post of HOD PL2 of Hillcrest Primary School, Gqeberha, a position of which the successful incumbent was appointed as from 10 July 2020.
44. Chapter B of Personnel Administrative Measures (“PAM”) (ELRC Collective Agreement 1 of 2008) provides at Chapter B.2.1.1.2 that the educational qualification for a departmental head is that of a recognised three-year or four-year qualification, which includes professional teacher qualification.
45. The statutory requirements is registration with SACE as professional educator with competencies and skills being: advanced knowledge of teaching as provided for in the professional qualification; good teaching and assess-skills; good extra and co-curricular skills; good people management; good administrative skills; good communication skills and 3 years of actual teaching experience.
46. The Applicant disputed that the 2nd Respondent held the requisite professional qualifications however she was unable to expound upon the basis of such. It was established by the 2nd Respondent that she did possess legitimate professional qualifications that met the requirements as provided in PAM.
47. The Applicant consistently asserted that it was her “opinion” and “belief” that the 2nd Respondent was not suitably qualified for the position in dispute. Whilst this would be a common belief in any unsuccessful candidate, it is not grounded upon any legal basis. I therefore fail to see upon what basis the Applicant bases her claim upon. The 2nd Respondent met the requirements as provided for in PAM and no impropriety or gross unreasonableness was alleged in the shortlisting or interview panel nor was any of such submitted in evidence.
48. I cannot negate the incidence of onus that rests upon the Applicant that the decision not to appoint her was on the basis of some unacceptable, irrelevant or invidious comparison.
49. It follows that in my assessment of the evidence and explanations given by the parties, that sufficient evidence was not tendered in order to support a version that the actions of the Respondent were unfair and grossly unreasonable. I am not persuaded to interfere with the managerial prerogative of an employer where such discretion was exercised capriciously, or for unsubstantial reasons or based upon a wrong principle or in a biased manner.
50. The Applicant has not succeeded in discharging the onus to prove his claim of unfair labour practice based on promotion by the 1st Respondent.
51. In light of the above I make the following award.
AWARD
a) The Applicant’s application fails.
b) No order as to costs is made.
Signature:
Catherine Willows
ELRC Panellist