ELRC575-21/22NW

Commissioner: S Fourie
Case No.: ELRC575-21/22NW Date of Award: 25 August 2022

In the ARBITRATION between:

PHUSWANE BOITUMELO
(Union / Applicant)

and

DEPARTMENT OF EDUCATION (NW)
(First Respondent)

and

H T CHABELI
(Second Respondent)


Union/Applicant’s representative:

Telefax:
Email:

Respondent’s representative:

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Email:



INTRODUCTION:

1. The matter was scheduled for Arbitration on various dates but effectively arbitrated on 30 June 2021, 10 August 2021, 11 August 2021, 12 August 2021, 13 September 2021, 8 November 2021, 9 November 2021, 24 February 2022, 19 May 2022 and 1 August 2022. All sessions were held at the North West Department of Education, Mahikeng at Ngaka Modiri Molema District Office. The Applicant was present and represented by Mr. Monkwe. Mr. Keetile from the Department of Education represented the 1st Respondent with Mr. R Lentswe a union representative form PSA represented the 2nd Respondent.

BACKGROUND:

2. Parties hereto submitted a Pre-Arb Minute. Common cause facts are:
2.1 The Applicant is currently employed by the Respondent in the position of a Deputy Chief Education Specialist (PL5) in Human Resources Management and Development., at Corporate Centre, since 1 November 2011, earning a basic salary of R47 404.00.
2.2 The 1st Respondent advertised a Chief Education Specialist (Behavioural Management) post, referenced post number CES/BMS/01 post (PL6) on Departmental Circular 29 0f 2019.
2.3 Both the Applicant and the 2nd Respondent applied for the post, they were shortlisted and interviewed on 6 October 2020.
2.4 The 2nd Respondent was appointed to the position of Chief Education Specialist (Behavioural Management Services) on 1 December 2020.

3. Facts in dispute:
3.1 Whether or not the 1st Respondent committed an unfair labour practice by appointing the 2nd Respondent to the position of Chief Education Specialist (PL6).
3.2 Whether or not the Applicant was the most suitable, qualified and best candidate to be appointed to the position of Chief Education Specialist (PL6).

ISSUE TO DECIDE:

4. Whether the First Respondent’s decision not to appoint the Applicant constituted an Unfair Labour Practice –
4.1 Whether or not the 1st Respondent committed an unfair labour practice by appointing the 2nd Respondent to the position of Chief Education Specialist (PL6).
4.2 Whether or not the Applicant was the most suitable, qualified and best candidate to be appointed to the position of Chief Education Specialist (PL6).

5. ELRC Collective Agreement Number 3 of 2016 states that:
Once the applicant has proved that he was the best of the candidates who applied for the post, the arbitrator is entitled to appoint him or her to the post. It is a gross irregularity for an arbitrator to appoint an applicant in a promotion dispute where the applicant has not proved that he was the best of all the candidates who applied for the post and that he would in fact have been appointed had it not been for the unfair conduct of the employer

SUMMARY OF EVIDENCE AND ARGUMENT:

6. For purposes of this award, I do not intend, to record verbatim the evidence led, the submissions made and or the arguments raised on record. Only the prominent points raised by each party in their evidence that have a bearing on the issue in dispute and to be decided are recorded hereunder. I did, however, consider all the evidence that was presented. The Applicant led the testimony of three witnesses including her own testimony and the Respondent called two witness. The Applicant entered into evidence a bundle of documents, submitted Bundles A (1) with pages 1 – 104, Bundle A (2) with pages 1 - 32. The Respondent submitted a bundle of documents as Bundle R, with pages 1 – 87. R 88 was submitted later on the 10th of August 2021 by application from the Respondent which was objected.

Applicant’s Evidence -

7. The Applicant Boitumelo Phuswane testified under oath – She referred to A (1) page 72
the advertisement of the post which reads:
• Requirements: A recognized National Diploma or Degree in Huma Resource Management or Labour Relations/Industrial Relations or Labour Law or Public Management. A post graduate degree in any of the above qualifications will be an added advantage. Must be registered with SACE. Valid driver’s license (code 8).
• Experience and knowledge: Five (5) year experience in the field of labour relations and ten (10) years’ experience in the educational field as a professional educator. In-depth knowledge of South African Labour Legislation, disciplinary, grievance and dispute resolution procedures applicable tom both public service Act employees and Educators Act. Understanding of various disciplinary codes and procedures for both Cs and non Cs educators. Should be able to demonstrate sound knowledge of Departmental policies, Leadership, communication, conflict resolution, decision making capacities and planning. Bargaining and mediation skills are an added advantage.
• Skills and competencies: Advanced communication, facilitation management, developing others, managing interpersonal conflict and resolving problems. Planning and organizing, Customer focus and responsiveness. Project management, proven computer literacy including advanced MS-Word, MS-Excel and MS- Power Point.
• Duties: Perform disciplinary functions pertaining to serious misconduct cases in respect of Cs Educators and Non Cs Educators. Manage all matters pertaining incapacity/inefficiency of employee behavior. Conduct trends analysis of disciplinary cases. Compile various disciplinary cases and trends monthly reports. Be in a position to prosecute and preside over disciplinary cases. Supervise staff in the sub directorate. Be prepared to work with other units in the department and other relevant stakeholders like PSC, SACE ect. C(A19) capacitate and train both Cs and Non Cs employees in the department. Perform any other additional duties assigned by the supervisor.

8. Phuswane view herself to be in line with requirements of the advertisement and to possess the relevant qualifications referring to her B Tech qualification (A19), Certificate in Dispute Resolution in Practice (A20), SACE certificate (A23) and a valid driver’s license (A22). She also possesses almost 15 years’ necessary experience being an educator since 2003 and joined Labour Relations in 2005. She gained knowledge as Senior Education Specialist dealing with grievances and disputes. In 2011 she was appointed as Deputy Chief Education Specialist in the same unit. She presided and prosecuted disputes for more than 10 years. Being appointed of CS Educators, she dealt with both CS and non CS educators in terms of the Public Service Act. She has been a manager in the unit and acted as Deputy Director Labour Relations. She presided over serious misconduct cases with an understanding of disciplinary processes including incapacity matters within the ELRC, GPSSBC, PSBC and the CCMA. As acting director and deputy manager she liaised with different stakeholders. She also trained CS and non-CS employees on PAM. She is also a member of the ELRC and GPSSBC Provincial Bargaining Chamber with thorough experience in Bargaining and mediation skills.

9. Phuswane referred the 2nd Respondent’s requirements in relation to the advertisement. The driver’s license A (1) 69 and SACE Certificate A (1) 67. On A (1) 46 the 2nd Respondents possess a Master’s degree in Business Administration (MBA) but is not relevant to the post because same in not a qualification in Human Resources or Labour Relations as required for the post. Another qualification being a degree of Arts in Education (A (1) 47 is also not a relevant qualification. A (1) 48 an BA in Education also not relevant to the post. Referring to the qualifications of the 2nd Respondent, Phuswane’s contention is that she does not possess a qualification relevant to the post in question and therefore did not meet the requirements of the post.

10. The minutes of the shortlisting process are on pages A (1) 73 to 79 and two positions were involved. A (1) 76 reads:
• qualifications and experience should be in line with the prepared Departmental Circular 19 of 2020.
• There must be fair representation in terms of gender.
The panel agreed candidate’s qualifications and experience should be in line with the Departmental Circular 29 of 2020. (noteworthy that in Circular is 29 of 2020 and nor 19 of 2020 see A. (1) 70). The panel failed to comply with this requirement and wrongfully shortlisted the 2nd Respondent not having the necessary qualifications in terms of Circular 29 of 2020. Referring to A (1) 78 and 80, a schedule of all the Applicants for the post shows that Leepile N I, who possess a MBA degree had no qualification in the sphere of Labour. The panel was aware that Leepile had no qualification in the sphere of Labour although she had an MBA similar the 2nd Respondent which was not a requirement.

11. Referring to A (1) 98 - 104 the Personnel Administrative Measures (PAM) page 100 of A (1), clause B.5.3.2 in relation to the sifting process which reads: The employing department must handle the process of eliminating applications of those candidates who do not comply with the requirements for the post(s) as stated in the advertisement. The 2nd Respondent failed to meet the requirements in the advertisement. Referring to A (1) 102 clause B.5.6.4 which reads: All applications that meet the minimum requirements and provisions of the advertisement must be handed to the responsible Interview Committee. Phuswane stated that at shortlisting, the applicants who met the minimum requirements must be handed to the Interview Committee inclusive of the 2nd Respondent. The 1st Respondent failed herein to shortlist the 2nd Respondent who was supposed to be eliminated at the sifting process already.

12. Back to the minutes of the Interviewing Committee A (1) 86 – 90 pages 88 to 89 reads: Phuswane EB – a teacher by profession which dates back to 1993. Has the necessary skills and competencies needed for the post. The candidate possesses a B. Tech: Labour Relations Management from Unisa. A confident candidate, she was appointed in an acting capacity as Deputy Director for three years, from 2013 – 2017. The candidate demonstrated understanding of the legislated frameworks necessary for the Directorate. Her demonstration on handling of sexual cases where a minor is a witness is beyond reproach. She answered most questions in detail and provided practical experiences where necessary. Chabeli H T – Fluent in her response to most of the questions, the candidate has thirty-seven (37) years of experience both as PL1 educator and office based educator, the position she currently holds. The candidate demonstrated the necessary skills, competency and qualifications needed for the post. The candidate has an MBA from University of North West. Her demonstration of leadership qualities is consistent with the prospect of the advertised post. Phuswane showed that she answered better than the 2nd Respondent herein. Referring to A (1) 84 the scores of the process however does not reflect it.

13. Referring to A (1) 91 0 94, the submissions for approval, the purpose of which is to present the recommendations to the line functionaries up the last person’s approval. On A (1) 92 paragraph 4, the last person in line for the recommendation after the line functionaries is the Administrator. The HR Manager, Mr. Motang in his recommendation wrote: The appointment of the recommended candidates is supported. The appointing officer may however appoint candidate number on the basis of experience in the area and qualifications and current rank. The line functionaries were supposed to take note of what the HR manager advised and to react on it. The Administrator being a line functionary after the HR Manager failed to consider the advice of the HR Manager. If they would have looked at the 2nd Respondent’s qualifications, they would have picked it up it was not in line with the advert. On A (1) 93, Seshibe signed as a line functionary in the capacity as the Chief Director: HR. Seshibe’s role was also the chairperson of the Interview Committee who signed as line functionary as well which is unethical and cannot be a referee and a player. Seshibe’s mind was made up when he participated in the process where the 2nd Respondent was not supposed to have been shortlisted. Seshibe, as line functionary failed to provide reasons for his recommendation as required in terms of PAM A (1) 103 paragraph B 5.6.10 which reads: At the conclusion of the interviews the Interview Committee must rank the candidates in order of preference, together with a brief motivation, and submit this to the relevant line functionary. The line functionary must ensure that the Interview Committee has met the requirements set out in paragraph B5. Seshibe played two roles whose conduct was unethical referring to B 5.6.11 which reads: If provisions and procedures were not adhered to, the recommendation must be referred back to the Interview Committee for rectification before submission to the DG/HoD. As a panel who ranked the candidates in order of preference. HR including the other line functionaries were supposed to scrutinize to ensure compliance with B5 and to rectify if needed. Seshibe who chaired the panel also took the role as line functionary could not apply his mind as line functionary for compliance in relation to PAM. Seshibe as line functionary, also failed to provide reasons for his recommendation which shows him to have already made up his mind in terms of the appointment of the 2nd Respondent. He was supposed to recuse himself because he already participated in the process.

14. Phuswane wrote to the Administrator requesting reasons to the failure to appoint her referring to A (2) 20 wherein she requested all the information on which the considerations took place to overlook her for the post. She received a response referring to A (2) 21 which indicates that the Applicant was ranked position two and the panel recommended the candidate who obtained position one being the reason the Applicant was not appointed [sic]. From the Administrators response, he considered the scores form the Interview results who ranked the 2nd Respondent as number one. He merely looked at what the panel decided and failed to apply his mind. According to PAM the Administrator was supposed to apply his mind and check the qualifications and experience but failed to do so and just went with what the panel said. The Panel was not in compliance with PAM in appointing the 2nd Respondent. The Respondent should have been appointed the Applicant whereas the 2nd Respondent was supposed to be eliminated at the sifting process already because the 2nd Respondent did not comply with the advertisement which means the Applicant remained to be the highest ranked after the interview process. The Applicant also contended that her qualifications, skills and experience was in line with the advertisement. The conduct of the 1st Respondent resulted her not to be appointed.

15. During cross examination, she was referred to the 2nd Respondent’s MBA qualification which is not a requirement with the 1st Respondent’s advertisement and even if there are Industrial/labour law related modules, is was not a requirement. She vehemently denied that a MBA is an Industrial Relations type of qualification. Referring to R87 the advertisement, the Applicant replied that she complied with the requirements. She stated that may not possess a MS- qualification but have acquired the skill. She acknowledges the three sub directorates with the 2nd Respondent to have acted at Conduct Management but that did not make her the best candidate. Phuswane stated that there could be no other considerations other than what the advertisement directed and if so, it would have been contained in the minutes but was not and the Panel committed themselves to the advertisement. Phuswane conceded that R23 the minutes of the Interview Committee was favorable to her.

16. She stated that she does not know whether her acting as Director assisted her because the scoring does not show if it was considered. She disagreed with the averment that the 2nd Respondent acting as a manager in the sub directorate made her the best candidate. She responded to state that it cannot be said if acting gave an advantage. She reiterated that the 2nd Respondent did not have the necessary qualification for the post. Phuswane acknowledged that she never worked in the sub directorate but the advertisement does not say it. She however did perform duties in the relevant unit. The 2nd Respondent did work in the sub directorate but was not a requirement. She never saw the 2nd Respondent to have worked with non CS employees. When referred again to the MBA of the 2nd Respondent which eliminated other candidates, Phuswane referred to Leepile who also had an MBA but was ruled out to be not qualified. A MBA was not part of the list qualifications required by the 1st Respondent in the advertisement. The Respondent was supposed to eliminate the 2nd Respondent as they did with Leepile who also possess a MBA degree.

17. She was referred to A (1) 92 being the recommendation to be ambiguous in relation to qualifications and experience, to which she responded that the appointment of the recommended candidate is supported however you can appoint another person and check the qualifications and experience. PAM requires the line functionaries to check the Interview Panel similar to how Leepile was identified. Phuswane stated that it was not wrong for the Respondent to have appointed in terms of the ranking provided that the selection process was done correctly. The 2nd Respondent was not supposed to be shortlisted in the first instance.

Interlocutory application for additional documents from the 1st Respondent -

18. The 1st Respondent submitted R88 which the Applicant objected in that the document was not part of the appointment process therefore irrelevant. Such document paginated as R88 was accepted to the bundle of documents of the 1st Respondent where after the Applicant’s case was re-opened.

19. The Applicant Boitumelo Phuswane testified that R88 was not part of the bundle during the shortlisting process because the 1st Respondent only provided her with the documentation presented at the commencement of the arbitration. The 1st Respondent also did not include R88 in their bundle initially. It was also not presented to the 1st Respondent previously to show such MBA qualification which could not be done. The 1st Respondent also did not indicate that there was an omission on their part for R88 not to be there. The 1st Respondent referred to the MBA to be a Labour / Industrial Relations qualification but it was never part of the selection process despite for the Applicant to have requested in during the previous cross-examination. The minutes of the shortlisting process do not refer to R88 but only refer to Circular 29 of 2020 to be in line with the advertisement. The discovery of R88 at this time cannot support the 1st Respondent’s case because a Labour / Industrial Relations module is not a qualification. The advertisement did not require a module as a requirement. The name MBA do not suggest it to be a Labour / Industrial Law qualification.

20. Cross – examination continued – Phuswane stated that she objects to R88 but the Commissioner may attach the necessary weight to it. A MBA is not a Labour / Industrial Relations qualification. Keetile’s averment was that he questioned the Applicant to say that Leepile’s MBA differ from the 2nd Respondent to which Phuswane responded that how would Keetile know it is different. R88 was not submitted for consideration at shortlisting which show qualifications to be considered in line with the advertisement and the advertisement does not show a MBA or a module as a requirement. Referring to A (1) 41 the last entry under the heading: Tertiary Education it reads: Master of Business Administration (MBA) (Labour & Industrial Relations), Phuswane responded that such was written by the 2nd Respondent herself. A Curriculum Vitae (CV) must be supported with the qualification and such qualifications with the R88 was not submitted. The words in brackets may be modules which is not in line with the advertisement. Should the panel have considered what the 2nd Respondent has written on her CV on A (1) 41, the 2nd Respondent was supposed to attach such qualification but was not submitted but according to Phuswane the Panel acted beyond their powers. Phuswane could not attach weight to a module within a MBA but it would be less than a B-Tech degree. She did not agree with Keetile’s statement that a module within a MBA can be three years. She stressed that the advertisement speaks about qualifications and not modules and R88 shows the modules of a MBA qualification.

21. Cross examination from Lentswe - Phuswane again stated that Labour and Industrial relation merely form a module of the MBA degree and not a qualification on its own. She stated the 2nd Respondent could have written any other modules behind her MBA degree referring to A (1) 41. Referring to the MBA’s of Leepile and the 2nd Respondent, she stated that the 1st Respondent failed to show any difference between the two MBA’s. The 1st Respondent could not have relied on what the 2nd Respondent merely wrote in her CV which was a misrepresentation. The Panel relied on the advertisement and agreed to a criterion in dealing with the selection. She also responded that after the conclusion of the three candidates, the appointing officer had to apply his mind between the remaining two because the 2nd Respondent did not have the required qualifications and experience to be shortlisted.

22. George Themba testified under oath that he was an SADTU observer duty-bound to observe the appointment process to be fair and transparent. He participated in the shortlisting process where the Panel looked into the qualifications to be in line with the Circular. The Advertisement on A (1) 72, was used during the shortlisting process as part of the pack distributed by the Chairperson. After reading the requirements on A (1) 72, he agreed that Applicant met the requirements also referring the A (1) 19, 22 and 23. Referring to the 2nd Respondent’s qualifications, he agreed that it was not in line with the advertisement with no indication that she met the requirements based on A (1) 38 and 72, although HR would be able to explain. In relation the qualifications of the 2nd Respondent including the MBA, he responded that a specific course can be relevant. He agreed that the advertisement referred to diplomas and degrees and not courses. In conclusion to the qualifications of the 2nd Respondent he agreed that she did not meet the requirements as directed in the advertisement and was not supposed to be shortlisted, however as the interview process unfold, they do not look at the requirements but at other things which may be advantageous therefore they were satisfied that the 2nd Respondent had the necessary requirements. He could not recall what was discussed, whether the 2nd Respondent acted or not, but as a panel, they were convinced to have the necessary requirements. He felt it was unfair to respond to the statement that the 2nd Respondent does not have the required qualifications that rendered the process unfair.

23. Monkwe (for the Applicant) declared Themba to be a hostile witness. Monkwe’s declaration was based on Themba being subpoena to testify on behalf of the Applicant. Themba attested that the 2nd Respondent do not possess the required qualifications and also agreed that the 2nd Respondent was not supposed to be shortlisted. Monkwe proceeded to cross-examine Themba.

24. Referring to the minutes on A (1) 76, Themba agreed that the Panel looked into qualifications and experience as stipulated in the Departmental Circular. Monkwe referred to the other discussions to Themba referred to, to which he responded that after the shortlisting process there will be a lot of discussions to arrive at the result. Referring to the minutes of the interview panel, Themba could not show where discussion took place to consider candidates without the required qualification but that such discussion did take place. Themba confirmed that the 2nd Respondent does not meet the requirements in line with the advertisement, but discussions scaled the requirements down. He stated that when you scale down, it would not be far from the requirements. He was referred to PAM on A (1) 100 clause B5.3.2 in relation to the sifting process which reads: The employing department must handle the process of eliminating applications of those candidates who do not comply with the requirements for the post(s) as stated in the advertisement – to which Themba agreed that the sifting must be in line with the advertisement on A (1) 72 but that discussions to the process influenced the Panel. No paragraph in PAM provide such powers but the discussion to select was not his responsibility.

25. He could not recall whether the first Respondent considered the modules of the 2nd Respondent’s MBA, but the MBA was not disqualified. Themba could not recall R88 (the modules of the MBA) when he was referred to the shortlisting minutes on A (1) 73. The date on R88 is 11 February 2021 and the interview was on the 21st to the 29th of September 2020, which means it could not have been there.

26. During Cross examination (Keetile) - Themba responded that the 2nd Respondent met the requirements to the advertised post after the number of applications were scaled down. He stated that the shortlisting process is not a straight forward process and the advertisement is in line of what is expected. The 2nd Respondent’s qualifications and experience were considered. He could not recall whether R88 were there however the Labour and Industrial Relations modules could be considered.

27. Lentswe’s cross examination - He referred to the MBA of the 2nd Respondent, and the advertisement on A (1) 72, to which Themba respondent hat the scope of work influenced their decision.

28. Fhatuwani Richard Makhado testified under oath. He was a Panelist with Seshibe as the chairperson and has experience in such processes doing it for some years. Referring to the minutes on A (1) 73 to 79, he participated in the shortlisting and the interview. He could not recall that they decided to look at other things other than the qualifications. He was referred to the advertisement on A (1) 72 and recalled the requirements. He agreed that the Applicant was shortlisted after she met the requirements. Referring to the 2nd Respondent, he stated that she met the requirements in terms of the advert and was shortlisted. Makhado referred to the MBA having Public Management which they did not discuss but they discussed the Labour and Industrial Relations modules.

29. Monkwe (for the Applicant) declared Makhado to be a hostile witness. Monkwe’s declaration was based on Makhado being subpoena to testify on behalf of the Applicant. Monkwe proceeded to cross-examine Makhado.

30. Referring to the interview minutes on A (1) 73 to 79, he could not show where it was discussed that the MBA has Public Management but that it has Labour and Industrial Relations which relate to the advertisement. Makhado agreed that the Panel looked at the advertisement and that the MBA forms part of the qualifications. He stated that although the MBA is not listed in the advertisement, the 2nd Respondent worked in the position. Referring the advertisement on A (1) 72, he conceded that the MBA is not a required qualification. Makhado also conceded that additional criteria were set but not captured in the interview minutes. Referring to A (1) 70, the advertisement did not empower the Panel to intervene with the criteria to which Makhado responded that it does not stated the duties of Panelists. He denied to have favoured the 2nd Respondent, but the Panel agreed that the 2nd respondent qualified. Should an applicant not possess the required qualification, the Panel could agree that such applicant falls within the scope. He was referred to PAM B 5.3.2 whether it allows qualifications to be relaxed to which Makhado responded that the advertisement is the guiding document and such applicant must ‘fall-off” [sic]. To the follow-up statement why the 2nd Respondent did not “fall-off”, Makhado remained silent. He responded to them not to be in accordance with PAM, but they decided on additional criteria. Referring to A (1) 102 B 5.6.4, of PAM that the 2nd Respondent was not supposed to be shortlisted, Makhado responded that she was eligible for shortlisting because they thought she had the required qualification, but do conceded that the 2nd Respondent was supposed to be eliminated. Referring to R88, the transcript of the 2nd Respondent’s modules, Makhado could not recall such transcript and also not whether the 2nd Respondent had such modules. He could also not recall whether the transcript was submitted. He could also not recall whether Leepile NI’s MBA had the Labour Relations module in comparison the 2nd Respondent.

31. During cross-examination of Keetile – Makhado stated that the discussions which took place in terms of the people discussed, all had qualifications and experience in Labour Relations. Collectively with qualifications, experience and knowledge, the 2nd Respondent were shortlisted. He agreed that applicants who did not meet the requirements were eliminated. Referring to PAM on A (1) 100 clause B 5.3.2, he agreed that an applicant must be eliminated if you do not meet the requirements, but the 2nd Respondent met it because of her experience. Referring to R88, he could not recall to have seen such transcript because of many applications. Referring to Leepile NI’s MBA, Makhado responded that such MBA had nothing to do with Labour Relations.

32. Cross examination of Lentswe – Makhado confirmed their discussions during the shortlisting process about experience in the field. The 2nd Respondent had experience and certificates in Labour Relations and acted in the position. He stated that the minutes could not be relied on.

33. Ntebogang Inocentia Leepile testified under oath that she also applied for the CES position. Amongst her Education qualifications, she obtained a certificate in Huma Resources through Unisa and a MBA through NWU. The MBA contained various modules such as Labour Relations, Industrial Relations, Project Management and many others. She was not shortlisted for the position but was not informed the reason for it. Referring to A (1) 78, the minutes of the interview committee, where it refers to her not being shortlisted, she responded that Panel could not have been aware of the modules she has done in relation to the MBA. When she applied she merely submitted the MBA certificate and not the transcript showing the modules. She acknowledges that she did not qualify with her MBA in relation to the advertisement on A (1) 72.

34. During cross examination (from Keetile) she acknowledged that she could not say whether the 2nd Respondent’s transcription was included. To the question whether she stated that she had Labour and Industrial Relations, she responded that she would include her work experience in her resume, her qualifications and the nature of what she acquired to sell herself to the selection committee. Her HR certificate does show the modules she obtained but not the MBA certificate. She however did not submit a transcript of the MBA modules because it was not required. She denied the statement that her MBA had no Labour Relations module to it and responded that it was a compulsory module.

35. Cross examination (from Lentswe) she was referred to the advertisement on A (1) 72 and asked what she did to assist the shortlisting process. She responded that she expected to submit additional information if requested because she worked in an intense labour environment. Referring to A (1) 78, Leepile responded that the person who wrote it knows it but not in line with advertisement which required a diploma or a degree. She also responded that she could have submitted the transcript but she responded in terms of the requirements.

36. J N T Mohlala testified under oath that he is the Administrator with similar responsibilities as the HOD. He is also the delegated appointing officer. Approvals for appointments must be fair and reasonable with the expectation that Panels to conduct appointment process fairly. He also stated that PAM are part of what is considered when appointment processes takes place. Referring to A (1) 94, he signed on the 6th of November 2020, he was requested what he did prior to the recommendation approval. Mohlala responded that he would appoint a Panel to carry out the shortlisting and the interview who must adduce recommendations to him. He would them check whether the three candidates qualify for the position in relation the minimum requirements which is a key factor, the experience with the results of the Panel. He would then approve the recommendation or not. If not, it would be send back. He also stated that he would check whether the advertisement is in line with the minimum criteria and then look at the minutes of the interview and the scoring of the Panel.

37. He was referred to the minutes on A (1) 76, to which Mohlala responded that it is a requirement that the Panel must look into the shortlisting to ensure the qualifications and experience is in line with the Circular. When he looked at the minutes he could not see any consideration outside of what the Circular prescribe. He also could not find any additional criteria the Panel referred to in the minutes reaffirming that qualifications and experience are requirements for shortlisting in terms of the advertisement. Whether the Panel could work outside the parameters of the advertisement, Mohlala responded no, but if they need to reduce the shortlisted candidates, that they need to agree on the criteria they use when they reduce on shortlisted candidates.

38. To have appointed the 2nd Respondent, the Panel shortlisted number one and two and he considered the submissions from the Panel trusting the chairperson of the Panel that the 2nd Respondent met the minimum requirements. Mohala was also satisfied that the 2nd Respondent met the necessary requirements. Referring to the Applicant’s letter to Mohlala where she requested information, he responded that HR provided all information to the Applicant on which considerations were based on.

39. Referring to the advertisement on A (1) 72, Mohlala stated that it was released by him containing the requirements for the position. Referring to whether the 2nd Respondent possess a degree or diploma, Mohlala responded that he was not aware and that there are a range of fields that needs to be looked at. Referring to the bundle of documents, Mohlala could not find a degree or diploma in Human Resources. Mohlala was referred to the qualifications of the 2nd Respondent vis a vi the advertisement to which he responded that the areas are relevant from the qualification of the 2nd Respondent. Mohlala was referred to the MBA of the 2nd Respondent in that it is not contained in the advertisement, to which Mohala responded that such is an equivalent that include areas or subjects of Labour and Industrial Relations.

40. Monkwe (for the Applicant) declared Mohlala to be a hostile witness. Monkwe’s declaration was based on Mohlala being subpoena to testify on behalf of the Applicant. Monkwe proceeded to cross-examine Mohlala.

41. Mohlala stated that the MBA of the 2nd Respondent are a listed degree in Labour and Industrial Relations and would qualify as a minimum requirement. Not able to show a degree or diploma in the 2nd Respondent’s CV, Mohlala wanted to unbundle the degree. To the question whether the advertisement said anything about the unbundling of courses, Mohlala responded no but a CV could provide the breakdown. He stated that the unbundling is not contained in the minutes but part of the process. For Mohlala, it was not unusual that the chairperson of the Panel could participate in the recommendation as well in Seshibe’s case. Mohlala was also not aware what PAM directed herein referring to A (1) 100 B 5.3.2. He conceded that the 2nd Respondent did not have a degree or diploma but that Labour and Industrial Relations are contained within her degree (meaning the MBA). For him a post graduate degree will be added advantage.

42. Referring to the Applicant’s qualifications that such was in line with the requirements, but that Mohlala never looked at it but merely rubberstamped the 2nd Respondent’s recommendation, Mohlala responded that all met the requirements. Referring to A (1) 102 B 5.6.4 of PAM, that Mohlala appoints the interviewing committee tasked to deal with the minimum requirements, Mohlala responded if he has the power then Monkwe then to be the hostile one. In terms of experience, it would not mean you will be appointed should you have experience. Mohlala was referred to the 2nd Respondent’s lacking in experience in grievance and dispute resolution processes and also not indicated in her CV to which Mohlala responded referring to the Applicant’s educational experience and that he did look at it. He was also referred to the 2nd Respondent’s lack in bargaining skills to which he responded that he looked at all the minimum requirements. Referring to PAM A (1) 103 B 5.6.10, he responded that people below the Director must have checked.

43. During cross examination (Keetile) - Mohlala stated that he applied his mind to the Panel’s decision. He depends on the Panel and when he received the “pack”, he would look at the minimum requirements for the shortlisted candidates, then the panel’s submissions and then the interview process. To the statement whether the 2nd Respondent met the requirements in terms of the advertisement, Mohlala responded that one must look at the advertisement in totality in relation to the qualifications, the experience and the knowledge to reach the minimum requirements. With the unbundling, Mohlala meant to look deeper into the recommendation. He looked at both the Applicant and the 2nd Respondent’s experience in which the 2nd Respondent had 12 years’ experience and the Applicant 4 years in conduct management. The one had six years within dispute resolution and acted as deputy director from 2020. In comparison, the 2nd Respondent was more suitable and agreed with the panel’s recommendation. Further to the unbundling, the MBA of the 2nd Respondent cover leadership aspects with Labour and Industrial Relations as subjects which adds to what is required. Referring to Motangs recommendation on R 8, he stated that Motang’s statement supported the Panel although he does not refer to anybody.

44. Cross examination (Lentswe) - He supported the Panel’s recommendation and with him to have ensured the candidates to meet the minimum requirements. He would check whether they looked at the CV’s vis a vi the minimum requirements in the advertisement. The minimum requirements would let you into the ring. Referring to all the qualifications of the 2nd Respondent, Mohlala deemed all to be relevant. For him both the Applicant and the 2nd Respondent met the minimum requirements. Referring to Motang, he responded that it was as if Motang supported a choice to be made but supported the 2nd Respondent.

Respondent’s case

45. Maropene Seshibe testified under oath - He is the Director Labour Relations. He was part the chairperson of shortlisting and interview process. The Applicant was not treated unfairly after she was shortlisted, interviewed and scored second. There guiding tool was the advertisement for the minimum requirements in relation to qualifications, experience, skills and competencies. Referring to the 2nd Respondent’s qualifications specifically the MBA, Seshibe deems it to be relevant being a senior degree higher than an honors degree. The MBA is relevant to the position in question because of the NQF level and weighs more than the minimum required within the advertisement. The MBA covers a lot of fields to the advantage of the 2nd Respondent. Referring to A (1) 41, the last entry stated a Master in Labour and Industrial Relations being a relevant qualification. A copy of the MBA transcript (R88) shows the courses as part of the MBA. He referred to A (1) 50 being a course in Labour Relations management to be relevant to the position. The Applicant’s version is that she possesses a three-year qualification to which Seshibe responded that he hears that although the 2nd Respondent’s qualification in Labour Relations management is six months, but relevant. Overall the 2nd Respondent was the best candidate. Referring to experience, he stated that the 2nd Respondent met the requirement because she worked in the Directorate: Labour Relations and responsible for behavioral management. She also worked as senior education specialist since 2005 until 2017 and acted in the position as deputy. She 2nd Respondent also dealt with the management of disciplinary matters within the Public and Educators Act.

46. Referring to the Applicant’s application A (1) 16 to 17 in relation to the advertisement on A (1) 72, Seshibe is of the view that the Applicant lacked experience because the position is for discipline and the Applicant experience is from a different office (dispute resolution) not relevant to the position. As acting deputy director, the Applicant is within the Directorate: Dispute Resolution and not behavioral management. For the rest in relation to skills and competencies the Applicant met the minimum requirements. He stated that the 2nd Respondent has more experience for the management of disciplinary processes. The Applicant never performed duties within the sub-directorate behavioral management.

47. Referring to the minutes of the shortlisting panel, the 2nd Respondent was shortlisted above the Applicant because of her leadership. The recommendation of Motang, the HR director at the time Seshibe was the acting chief director and denied to have been player and referee.

Lentswe leading -

48. Differentiating between the experience of the Applicant and the 2nd Respondent, Seshibe responded that the Applicant has experience in the Labour environment – dispute resolution and grievances but the 2nd Respondent worked in the unit behavioral management. The Applicant did not have the relevant experience although she was shortlisted for experience in the field of the sub-directorate. The Applicant did not have experience with the sub-directorate behavioral management because she did not work there. The 2nd Respondent also showed leadership qualities which the Applicant did not have but she had knowledge on legislation. Referring to the MBA of Leepile NI, Seshibe stated that she was not qualified in the sphere of labour because she did not provide information on Labour Relations.

49. During cross examination – (A witness the Applicant subpoenaed) – He confirmed being the chairperson of the Panel who conducted the shortlisting and the interviews. He has knowledge of Labour Law and experience in recruitment and selection processes. Seshibe conformed with the minutes on A (1) 76 and the contents thereof. As a Panel they agreed that the qualifications and experience needed to be in line with the Circular on A (1) 70. Seshibe stated that the Circular makes not provision for the deviation from the advertisement and must be followed to the latter. He also stated that in the previous 12 years him being the Director, they never deviated from the advertisement. Referring to Mohlala’s version of unbundling, Seshibe responded that it is to come up with additional criteria to make the process accessible which happened in this case. Seshibe was referred to the interview minutes to show the additional criteria to which he responded that it is in the shortlisting process of illumination. The first phase will be the basic criteria like experience. Seshibe was again asked to show the additional criteria from the minutes to which he responded that it is not contained within the minutes.

50. The version that unbundling was not contained in the interview minutes is because there was no unbundling viewing to which Seshibe responded that the advertisement also speaks to competencies which may not be excluded. To the statement that if there was additional criteria’s set at shortlisting (21 September 2020), such must have been contained in the minutes to which Seshibe responded that there would be instances where important information would not be captured in the minutes. The follow up statement from Monkwe was if additional criteria was not significant to be capture in the minutes to which Seshibe responded that it is possible for a key decision to be omitted from the minutes and such area must be developed within the Department. The structure will develop minutes to become a collective process to ensure little mistakes not to take place. Seshibe stated that he signed the minutes after he read it but failed to see as an oversight what they dealt with as a collective.

51. Referring to A (1) 93, Seshibe was the acting Chief Director when he looked at the package including the interview minutes, scores, CV’s and shortlisting minutes, which package also rotated and originated from HR through to the Administrator referring to A (1) 91 -92. This Seshibe signed, after two months on 21 October 2020, still not able to see the unbundling not contained in the minutes for a Panel he was the chairperson. Seshibe responded that Monkwe created a difficulty for him because he does not know what the Administrator testified about and that such pack contains a lot of documents making it possible not to see what was missing.

52. Seshibe was referred to the advertisement on A (1) 72, and agreed that the qualification required is that of a Human Resources / Labour Relations degree or diploma. He was then asked if the advertisement requires a six months’ certificate to which he responded that such must be answered in context and to look at a combination, but not a six months’ certificate. Referring to a combination, he responded that if one sees a person’s qualifications (being in the educational sector), considering the SAQUA requirements, it is possible for such qualification not to be in the advertisement. To the statement that the advertisement must be followed to the latter and not the combination he referred to, he responded that the requirement must not be technical in that people must be appointed who has knowledge about the sector and they must be able to deal with exceptional circumstances. Seshibe was asked to demonstrate the “combination” done in respect of the 2nd Respondent to which he responded that there was no combination in the case of the 2nd Respondent.

53. Seshibe did not agree that the list in the advertisement is an exhaustive list in terms of Human Resources and Labour Relations, for a person with an understanding of the sector with a qualification in the field of accounting as an example with HR. In his experience, it was not only what was contained in the advertisement making it not an exhaustive list. Seshibe then agreed that a post-graduate qualification such as a Master’s Degree in Human Resources, Labour Relations or Public Management can be acceptable.

54. In relation to the Applicant, Seshibe agreed that she met the requirements in the advertisement because he saw the Unisa degree in Labour Relations on A (1) 19. Referring to the 2nd Respondent, Seshibe stated that she also met the requirements because she has an MBA in Labour Industrial Relations with other certificates. Seshibe was referred to A (1) 46 to 69 the qualifications of the 2nd Respondent in relation to the advertisement as a requirement on A (1) 72 to which he responded that the MBA on A (1) 46 as a highest qualification. He also referred to R88 which shows the modules with Labour Relations and Human Resources at MBA level. For Seshibe the MBA is a qualification in terms of the advertisement although the advertisement does not show MBA, it is a senior post graduate degree.

55. Seshibe was asked whether the MBA of the 2nd Respondent was an MBA in HR, to which he responded that it has modules in Labour Relations referring to R88 therefore relevant. He agreed that the MBA was discussed but not contained in the minutes and there is no reason to suspect him. Monkwe stated that he suspects Seshibe not to be truthful. He conceded that the 2nd Respondent did not have a degree or diploma as required but a MBA which was relevant. He conceded that the advertisement required a degree or diploma and not course in Labour Relations. Seshibe stated that when a Panel receive applications they will peruse the applications and identify knowledge and experience and identify which certificates are relevant to the requirements. For him the Panel followed the advertisement to the latter because the certificates are relevant to the qualifications in relation to management and HR. Seshibe could not direct from the advertisement qualifications relevant to the post in respect of the 2nd Respondent referring to A (1) 51 to 56 but that it was an operational issue.

56. Referring to the unbundling, Seshiba stated that it was not for some additional criteria but to expand on the requirements. He agreed that it was done at the shortlisting stage but not to interfere with the requirement set within the advertisement. Seshibe however avoided to answer whether the Panel’s discussion on expansion discussed specific criteria in doing it but agreed that it was in terms of the advertisement. He was referred to A (1) 73 to 79 to show the unbundling to which he referred to page 78 bullet one, stating that the qualifications and experience to be compared with the skills required by the advertisement. He also stated that the minutes are insufficient for what took place at shortlisting.

57. He agreed to have looked at the B Tech degree on Labour Relations of the Applicant to be in line with the advertisement although Seshibe could not provide a clear answer as to whether he looked at the modules. Referring to R88, he agreed that the MBA of the 2nd Respondent contains a Labour Relations module and to his recollection R88 was used at the shortlisting process. He failed to answer whether the unbundling was captured in the minutes, but he was impressed with the MBA because a friend told him it was difficult. Makhado and Themba’s version who was also panelists, was that they did not see R88, to which Seshibe responded that he cannot answer for them but he saw R88. He conceded that it was not a requirement to submit transcripts like R88. Seshibe was pointed to the shortlisting date 21 September 2020 and the date on R88 being 11 February 2021, issued long after the shortlisting, to which Seshibe responded that he remembers seeing it and remember the 2nd Respondent to have done finance as well and the one must have been certified as well. A version that was presented to the Applicant that the MBA of the 2nd Respondent had three year modules, Seshibe responded that he did not see such. He also stated that to understand whether a candidate is capable one must look to the course itself - meaning the modules as on R88. It was stated to Seshibe that the MBA is in business administration and not a post graduate qualification in Labour Relations to which he responded it to be relevant.

58. In relation to Motang’s recommendation on A (1) 92, Seshibe responded that he did not check with Motang what he meant by it. It was stated that the reason for Motang’s statement was that the MBA was not in line with the requirements within the advertisement to which Seshibe responded that he did not mention the MBA. Seshibe was referred to the difference of the MBA’s in relation to the 2nd Respondent and Leepile NI, where it was stated that Leeplie NI had no qualification in the sphere of labour, to which Seshibe responded that the 2nd Respondent specified in her CV that she had a MBA in Labour Relations which Leepile did not specify. Seshibe did not know whether Labour and Industrial Relations was compulsory modules within a MBA. The version that Seshibe failed to shortlist Leepile NI with a MBA stating that she had no qualification in the sphere of Labour, Seshibe was also not supposed to have shortlisted the 2nd Respondent, Seshibe responded that the 2nd Respondent indicated in her CV and Leepile not. It was also stated that the 2nd Respondent did not attach the transcript (R88) and if so, it must not have been a problem to shortlist Leepile NI, to which Seshibe responded that it was not discussed to that extent.

59. Seshibe was referred to PAM A (1) 100 B 5.3.2 the selection process (sifting) to which Seshibe agreed that the ones who does not meet the requirements to be eliminated but the requirements are not limited and must include experience and knowledge. For him, the 2nd Respondent’s MBA was in line with the advertisement to be relevant in terms of Labour and Industrial Relations. He agreed with PAM’s directive that candidates not having the required qualification not to be shortlisted but that the 2nd Respondent did meet the requirement having a MBA.

60. In relation to knowledge and experience, Seshibe stated that the Applicant had experience but did not work in the sub directorate – conduct management. Referring to A (1) 16, he agreed that the Applicant fulfill duties but the Applicant was an outsider but was not challenged during shortlisting. The Applicant’s version to have worked in conduct management for four years referring to A (1) 16, Seshibe conceded to but was before his time but not recently. Referring to A (1) 17, the Applicant investigated and presided over cases in the conduct management directorate which Seshibe conceded to but stated that the Applicant had no managerial functions. Seshibe was referred to other skills and competencies relating to the Applicant’s knowledge to legislation, disciplinary processes and Codes which Seshibe conceded to.

61. Seshibe was referred to the 2nd Respondents’ knowledge and experience to which he responded that he does not know but she has certificates referring to A (1) 52. The certificate on (1) 52 is a four-day workshop certificate which for Seshibe was relevant to have an indebt knowledge. In relation to grievances, he worked with the 2nd Respondent to know about it. Seshibe was asked to show the 2nd Respondent’s work experience which he could not show but only work related courses. It was stated that the 2nd Respondent do not have an indebt knowledge in line with the advertisement and only some courses vis a vi the Applicant’s work experience to which Seshibe responded that the 2nd Respondent acquired certificates and cannot contest her indebt knowledge. Referring to the Applicant’s CV that she is the Senior Chief Education Specialist since 2011, Seshibe conceded to and that she acted as deputy Chief Education Specialist for four years and that such positions are managerial positions. The question was asked to Seshibe who had more managerial experience between the Applicant and the 2nd Respondent to which he responded the Applicant to have more and that he never said that the Applicant had no leadership skills but that the Panel was impressed on how the 2nd Respondent responded to questions. Seshibe conceded that the Applicant had the required leadership skills and relevant experience.

62. Seshibe was referred to the order of preference A (1) 89, where the 2nd Respondent scored 77% and the Applicant 66%. Seshibe conceded that he did not motivate the recommendation which is a requirement in terms of PAM (see A (1) 93 B 5.6.10) and an oversight on his side. He also agreed that he would recommend his own work in relation to PAM A (1) 103 B 5.6.10 & B 5.6.11 conceding that he was the chairperson of the Committee and a line functionary. He agreed that PAM refer to the Committee’s process must be send to the line functionaries and the line functionaries would return to the Committee if not correct. He conceded that he was a player and a referee but HR has done their work and he only executed what HR recommended. This was a post in his Directorate which he chaired. Referring to the remarks of Motang whether Seshibe found it to be ambiguous, he responded that he noted with concern but proceeded finding Motang indecisive. He had no need to check with Motang because HR checked everything and Motang did not differ from the Panel.

63. The following version was presented to Seshibe – that he wanted the 2nd Respondent to be appointed therefore she was shortlisted and interviewed without the necessary qualifications and experience - He recommended her appointment and ignored what Motang wrote and – Seshibe appointed the 2nd Respondent 9 days after the shortlisting whilst there was an incumbent in the position. Seshibe denied the versions and stated that Masekoaneng failed to do his work and he withdrawn his acting capacity. The 2nd Respondent reported to Masekoaneng being the obvious successor. It was coincidence that the shortlisting was done shortly before but he followed procedure. It was presented to Seshibe that he was supposed to discipline Masekoaneng but rather thanked him for his role and removed him to appoint the 2nd Respondent to which he responded that he did issue him with a warning.

SUBMISSIONS IN ARGUMENT:

64. Both parties agreed to submit argument in writing. A grace period of an additional 7 days was granted to assist the parties to submit by the 15th of August 2022. The 1st Respondent requested another grace period with motivations which was opposed by the Applicant. On the day of submission of this Award to the ELRC 25 August 2022, I have not received closing statements from either the 1st or the 2nd Respondent. The Applicant’s submissions were carefully considered, but will not be repeated here, as the contents basically mirror what was put to parties during the leading of evidence and cross-examination in the arbitration hearing itself.

65. Noteworthy to state that Heads of Argument win cases especially if they are properly cross referenced. Within labour law, Commissioners are consumers of law and the representatives are the sellers of law. If you want to sell the law, you must package it correctly, make it desirable and display its best qualities. As a salesman of the law, respect your consumer and give them what they want. The Applicant’s closing statements - Heads of Argument were well packaged and presented.

ANALYSIS OF EVIDENCE AND ARGUMENT:

66. In considering whether the First Respondent’s decision not to appoint the Applicant constituted an Unfair Labour Practice. It was specifically required of me to determine whether or not the 1st Respondent committed an unfair labour practice by appointing the 2nd Respondent to the position of Chief Education Specialist (PL6). Also whether or not the Applicant was the most suitable, qualified and best candidate to be appointed to the position of Chief Education Specialist (PL6).

67. In terms of section 186 (2) (b) of the Labour Relations Act 66 of 1995, as amended (“LRA”), an unfair labour practice means any unfair act or omission that arises between an employer and employee involving any unfair disciplinary action short of dismissal in respect of the employee. The onus is on the Applicant to begin. In National Union of Metalworkers of South Africa v Vetsak Co-Operative Ltd and Others [1996] (4) SA577 (A); [1996] 17 ILJ 455 (A) it was held that the approach must be to find a balance between fairness to both the employee and the employer. In judging fairness, a court applies a moral or value judgment to established facts and circumstances and in so doing must have due regard to the objectives sought to be achieved by the LRA.

68. It is common cause that the Applicant as well as the 2nd Respondent applied for the position of Chief Education Specialist (PL6). It is also common cause that both candidates amongst others were shortlisted and interviewed. It is common cause that both the Applicant and the 2nd Respondent was recommended for the post and ranked positions one and two in order of preference with the 2nd Respondent number one and the Applicant number two. It is also common cause that the Applicant is currently employed by the Respondent in the position of a Deputy Chief Education Specialist (PL 5) in Human Resources Management and Development, at corporate centre since 01 November 2011. It is common cause that both the Applicant and 2nd Respondent have a SACE certificate and a valid driver’s license. These requirements are in line with the advertisement. It is common cause that Seshibe was chairperson of the interview panel of the post in dispute. It is also common cause that he again came to participate as a line functionary, i.e. Acting Chief Director – Human Resources Manager.

69. The Applicant’s witness Themba, Makhado and Mohlala were declared hostile witnesses after they were subpoena to testify on behalf of the Applicant. They did not impress me as credible witnesses. They were not willing to make concessions that were detrimental to the case of the 1st Respondent. The witness, Leepile for the Applicant was compelling and stated what she knew. Seshibe avoided to answer straight forward question and were not willing to make concessions detrimental to the case of the 1st and 2nd Respondent. His demeanor did not reflected earnestness after he failed to be present for further questioning avoiding to be cross-examined. He also contradicted himself in various occasions especially in relation to the experience and skills of the Applicant.

70. The Applicant sought to focus on the 1st Respondent conduct in the following aspects:
• Whether the 2nd Respondent met the requirements of the post as per the advertisement -
• Whether or not the Panel had the powers to deviate from the requirements of the post as advertised -
• Whether the 2nd Respondent’s transcript (R88) was in the shortlisting process and subsequently entertained -
• Whether Seshibe acted as a player and a referee during the selection process -
• Whether the 1st Respondent complied with the provisions of PAM -
• Whether the Applicant was the best of all the candidates -
• The conduct of the Seshibe throughout the process.

Whether the 2nd Respondent met the requirements of the post - Whether or not the Panel had the powers to deviate from the requirements of the post as advertised - Whether the 2nd Respondent’s transcript (R88) was in the shortlisting process and subsequently entertained -

71. The requirements of the post in dispute, contained in Departmental Circular No. 29 of 2019, reflected on A (1) page 72, the advertisement of the post which reads:
• Requirements: A recognized National Diploma or Degree in Huma Resource Management or Labour Relations/Industrial Relations or Labour Law or Public Management. A post graduate degree in any of the above qualifications will be an added advantage. Must be registered with SACE. Valid driver’s license (code 8).
• Experience and knowledge: Five (5) year experience in the field of labour relations and ten (10) years’ experience in the educational field as a professional educator. In-depth knowledge of South African Labour Legislation, disciplinary, grievance and dispute resolution procedures applicable tom both public service Act employees and Educators Act. Understanding of various disciplinary codes and procedures for both Cs and non Cs educators. Should be able to demonstrate sound knowledge of Departmental policies, Leadership, communication, conflict resolution, decision making capacities and planning. Bargaining and mediation skills are an added advantage.
• Skills and competencies: Advanced communication, facilitation management, developing others, managing interpersonal conflict and resolving problems. Planning and organizing, Customer focus and responsiveness. Project management, proven computer literacy including advanced MS-Word, MS-Excel and MS- Power Point.
• Duties: Perform disciplinary functions pertaining to serious misconduct cases in respect of Cs Educators and Non Cs Educators. Manage all matters pertaining incapacity/inefficiency of employee behavior. Conduct trends analysis of disciplinary cases. Compile various disciplinary cases and trends monthly reports. Be in a position to prosecute and preside over disciplinary cases. Supervise staff in the sub directorate. Be prepared to work with other units in the department and other relevant stakeholders like PSC, SACE ect. C(A19) capacitate and train both Cs and Non Cs employees in the department. Perform any other additional duties assigned by the supervisor.

72. Referring to A (1) 98 - 104 the Personnel Administrative Measures (PAM) page 100 of A (1), clause B.5.3.2 in relation to the sifting (shortlisting) process it reads: The employing department must handle the process of eliminating applications of those candidates who do not comply with the requirements for the post(s) as stated in the advertisement. The requirements of the advertised post contained in Departmental Circular No. 29 of 2019, reflected on A (1) page 72 reads: Requirements: A recognized National Diploma or Degree in Human Resource Management or Labour Relations/Industrial Relations or Labour Law or Public Management. A post graduate degree in any of the above qualifications will be an added advantage. The minutes of the shortlisting process are on pages A (1) 73 to 79. A (1) 76 reads: qualifications and experience should be in line with the prepared Departmental Circular 19 of 2020. Focusing on the requirements, the advertisement was very clear that the post required a national diploma or degree in the following:
• Human Resource Management or
• Labour Relations/Industrial Relations or
• Labour Law or
• Public Management.
• A post graduate degree in any of the above qualifications (My emphasis) will be an added advantage.

73. The Applicant’s primary contention is whether the 2nd Respondent possess the required qualifications to have been shortlisted. In her closing statements the averment was made that: It is trite that the requirements of the post are the ‘must haves’. They are what the candidate must possess to be considered for the post. Employers use them to shortlist potential candidates. This means that if a candidate does not have them, he or she cannot be considered for that job.

74. Themba the SADTU representative (declared a hostile witness), agreed that the 2nd Respondent’s qualifications were not in line with the advertisement with no indication that she met the requirements based on A (1) 38 and 72, although HR would be able to explain. In relation the qualifications of the 2nd Respondent in relation to the MBA, he responded that a specific course can be relevant. He agreed that the advertisement referred to diplomas and degrees and not courses. In conclusion to the qualifications of the 2nd Respondent, he agreed that she did not meet the requirements as directed in the advertisement and was not supposed to be shortlisted, however as the interview process unfold, they do not look at the requirements but at other things which may be advantageous therefore they were satisfied that the 2nd Respondent had the necessary requirements. During cross examination Themba could not show where discussion took place to consider candidates without the required qualification but that such discussion did take place. Themba confirmed that the 2nd Respondent did not meet the requirements in line with the advertisement, but discussions scaled the requirements down. He stated that when you scale down, it would not be far from the requirements.

75. Makhado (declared a hostile witness) a panelist part of the shortlisting process stated that the Panel looked at the advertisement and that the MBA forms part of the qualifications. Referring the advertisement on A (1) 72, Makhado conceded that the MBA is not a required qualification but although the MBA is not listed in the advertisement, the 2nd Respondent worked in the position. Makhado also conceded that additional criteria were set but not captured in the interview minutes. Referring to A (1) 70, the advertisement did not empower the Panel to intervene with the criteria to which Makhado responded that it does not stated the duties of Panelists.

76. Before the Administrator, Mohlala, was declared a hostile witness, (in his evidence-in-chief), he submitted that shortlisting must be done in line with the advertisement. Mohlala could not find a degree or diploma in Human Resources for the 2nd Respondent where after he was referred to the qualifications of the 2nd Respondent vis a vi the advertisement to which he responded that the areas are relevant from the qualification of the 2nd Respondent. Not able to show a degree or diploma in the 2nd Respondent’s CV, Mohlala wanted to unbundle the degree being evasive. During cross –examination, Mohala emphasized that ‘the minimum requirements would let you into the ring”, meaning the interview process.

77. Seshibe testified that they relied on the 2nd respondent’s Master of Business Administration (MBA) to shortlist the 2nd respondent. This is besides the fact that all the witnesses agreed that it was not enlisted in the advertisement. He testified that the 2nd respondent has in her MBA, modules that were relevant to the requirements as set out in the advertisement. The MBA covers a lot of fields to the advantage of the 2nd Respondent. Referring to A (1) 41, the last entry stated a Master in Labour and Industrial Relations being a relevant qualification.

78. The Applicant’s version is that the MBA is not a requirement as per the advertisement. The requirements are what a candidate must possess to be considered for the post. Employers use them to shortlist potential candidates which means that if a candidate does not have them, he or she cannot be considered for that job. To use Mohlala statement: “the minimum requirements would let you into the ring”.

79. In their closing statements the Applicant raised Khumalo and Another v Member of the Executive Council for Education: KwaZulu Natal (CCT 10/13) [2013] ZACC 49; 2014 (3) BCLR 333 (CC); (2014) 35 ILJ 613 (CC); 2014 (5) SA 579 (CC) (18 December 2013). In summary - The first and second applicants were employed by a provincial department. They both applied for a post advertised by the province. The advertisement stated that extensive relevant experience, coupled with two or more years of supervisory experience at level six or seven within human resources was a requirement. The first applicant was employed at salary level five at the time, applied for the post, was short-listed and eventually appointed. The second applicant was at salary level seven, also applied for the post but was not short-listed. He lodged a grievance with the department complaining that he had not been short-listed for the post. When the grievance could not be resolved, he referred the dispute to the bargaining council. Before proceedings commenced, the department concluded a settlement agreement granting him a protected promotion. The agreement was made an arbitration award. Over a year and a half later, it was discovered that there were irregularities in the advertising and appointment process. The MEC successfully launched an application in the Labour Court seeking that it declare the promotions unlawful and set them aside. The Labour Court granted the application, and the applicants appealed unsuccessfully to the Labour Appeal Court. In the Court, they sought leave to appeal against the decision of the Labour Appeal Court. - The matter raises an important constitutional issue relating to the State's obligation to comply with the requirements of the rule of law under section 1(c) of the Constitution in the context of public-sector employment. Considering that the State is the country's largest employer, it is in the interests of justice that the matter be considered by this Court. In addition, the applicants have prospects of success. Accordingly, leave to appeal should be granted.

80. In the Khumalo case the Courts were confronted with the rather unusual situation of a State functionary seeking to establish the unlawfulness of its own institution's actions. The MEC sought to declare the decisions unlawful, unreasonable and unfair) and the consequential relief (to set aside the respective promotion and protected promotion). The MEC's interpretation of section 11 of the PSA (the Public Service Act) is compelling. In casu, the advertisement, in no uncertain terms set out the requirements for the post. The advertisement required: a recognized National Diploma or Degree in Human Resource Management or Labour Relations/Industrial Relations or Labour Law or Public Management. A post graduate degree in any of the above qualifications will be an added advantage. The question whether the 1st Respondent’s reliance on the 2nd Respondent’s MBA could have resulted the 2nd Respondent to be shortlisted. This specifically directs to the Personnel Administrative Measures (PAM) page 100 of A (1), clause B.5.3.2 in relation to the sifting process which reads: The employing department must handle the process of eliminating applications of those candidates who do not comply with the requirements for the post(s) as stated in the advertisement. The evidence directs that the MBA is not a recognized National Diploma or Degree in Human Resource Management or Labour Relations/Industrial Relations or Labour Law or Public Management. It is also not a post graduate degree in any of the above qualifications. The 1st Respondent relied on two core modules, Labour & Industrial Relations and Human Resources Management in the year 1999.

81. In the Khumalo case page of [2014] JOL 32484 (CC [62] 27 the Court was confronted with Section 11(2) of PSA to be read in the context of the State's obligations under section 195(1)(i) of the Constitution and the right to fair labour practices under section 23 of the Constitution. Section 195(1)(i) stresses the importance of ensuring that appointment processes in the public sector are based on ability, objectivity and fairness. Fairness in employment practices and labour relations requires the State to be even-handed and transparent not only to those whom it employs, but so too to those who may wish to apply for employment at a State institution. It would not be fair if the State were to employ persons who do not meet the very requirements that the State itself sets. It is neither fair nor in compliance with the dictates of transparency and accountability for the State to mislead applicants and the public about the criteria it intends to use to fill a post. The formulation and application of requirements for a particular post is a minimum prerequisite for ensuring the objectivity of the appointment process. Persons who do not meet the requirements for a post in the public sector ought not to be appointed. In my view, the Personnel Administrative Measures (PAM) in casu, must be dealt with in a similar way to Section 11 of PSA in the Khumalo case.

82. The question is the same whether the Respondent herein (also within the public sector) is permitted no flexibility in its appointment process? In the Khumalo case page of [2014] JOL 32484 (CC [63] reads: If the ideal applicant happens not to meet one of the formal criteria, is a State employer barred from considering that applicant? The reading of the corollary into section 11 of the PSA, in the context of section 195 of the Constitution, implies that it would generally not be fair or in terms of an objective process for public-sector employers to consider applicants who fall outside of the formal criteria. However, the fairness of the decision will typically be weighted heavily on the process and justification of the decision-makers. This would be in line with the interpretation offered by the MEC of section 11(3) to require justifications to be given for departing from the requirements. [64] Section 11(3) allowed for the approval by an executing authority of a promotion to promote the basic values and principles in section 195(1) of the Constitution. The values in section 195(1) may, therefore, call for the approval of a person whose appointment would, for example, promote a more efficient, economic and effective use of resources; maximize the human-resource potential in the institution; or provide for greater representativeness. The rationality of an approval of this nature would largely depend on the reasons of the executing authority. [65] It is possible that Mr. Khumalo had particular skills or experience that caused the short-listing and selection committees to view him as the candidate best suited to meet the inherent requirements of the post for the particular station of the eThekwini region. Mr. Khumalo cannot be expected to know those reasons – he can only speculate on the basis of why he thinks he was a worthy appointee. Indeed, it is the MEC, as the applicant before the Labor Court, who needs to satisfy the court of the promotion's unlawfulness. Absent the full documentary record of the appointment process, there is insufficient information to determine whether or not an approval in terms of section 11(3) was made.

83. Neither the 1st nor the 2nd Respondent presented evidence in support of their own argument to deviated from the requirement set within PAM -Clause B.5.3.2 which is a directive in relation to the sifting process which reads: The employing department must (my bold) handle the process of eliminating applications of those candidates who do not comply with the requirements for the post(s) as stated in the advertisement. The word “must” restrict the application of B 5.3.2 with no evidence to justify deviation similar to section 11(3) of the PSA in the Khumalo case. The 1st Respondent wanted to justify their deviation to accept the 2nd Respondent MBA modules with a transcript (R88). The 1st Respondent submitted R88 after the Applicant lead her case which the Applicant objected to in that the document was not part of the appointment process therefore irrelevant. Such document paginated as R88 was accepted to the bundle of documents of the 1st Respondent where after the Applicant’s case was re-opened to lead evidence on it. R88 was not included in the Respondent’s bundle. Phuswane testified that R88 was not part of the bundle during the shortlisting process because the 1st Respondent only provided her with the documentation presented at the commencement of the arbitration. The 1st Respondent also did not include R88 in their bundle initially. R 88 was not contained in either of the Applicant or the Respondents bundles and it was also not presented to the 1st Respondent previously to show such MBA modules the 1st Respondent relied on. The 1st Respondent also did not indicate that there was an omission on their part for R88 not to be there. The minutes of the shortlisting process also do not refer to R88 but only refer to Circular 29 of 2020 to be in line with the advertisement. Themba and Makhado could not recall R88 (the modules of the MBA) when they were referred to the shortlisting minutes on A (1) 73 contradicting Seshibe, the only panel member who claimed to have seen the 2nd Respondent’s transcript. The date on R88 is 11 February 2021, and the interview was on the 21st to the 29th of September 2020, which means the submitted transcript on face value could not have been there. The aforementioned in my view directs that R88, the transcript of the 2nd Respondent’s MBA was most likely not contained in the 2nd Respondent’s application pack and also not discussed neither used to unbundle for the 2nd Respondent to have been shortlisted by the 1st Respondent. It would also then be likely that the 1st Respondent considered what the 2nd Respondent mentioned in her CV on A (1) 41 where she listed her qualifications stating - Master of Business Administration (MBA) (Labour & Industrial Relations) without the transcript on R88. The 1st Respondent failed to present justifiable reasons to deviate from PAM and therefore the MBA modules Labour & Industrial Relations and Human Resource Management cannot be similar or recognized as a National Diploma or Degree in Human Resource Management or Labour Relations/Industrial Relations or Labour Law or Public Management. It is also not a post graduate degree in any of the above qualifications.

84. The Khumalo case has established the justification in such instances: This would be in line with the interpretation offered by the MEC of section 11(3) to require justifications to be given for departing from the requirements. [64] Section 11(3) allowed for the approval by an executing authority of a promotion to promote the basic values and principles in section 195(1) of the Constitution. The values in section 195(1) may, therefore, call for the approval of a person whose appointment would, for example, promote a more efficient, economic and effective use of resources; maximize the human-resource potential in the institution; or provide for greater representativeness. The rationality of an approval of this nature would largely depend on the reasons of the executing authority. In casu, the 1st Respondent failed to present similar justifications for shortlisting the 2nd Respondent and had no powers similar to section 11(3) or any other basis to deviate from the requirements. The Panel thus had no authority to deviate from the advertisement. Seshibe under cross-examination, attested to the fact that the panel must follow the advertisement to the latter, which means that it must never deviate nor relax, nor change the enlisted requirements. This is endorsed by the Labour Court in Letsogo v Department of Economy and Enterprise Development and Others (JR350/16) [2018] ZALCJHB]; (2018) 39 ILJ 851 (LC) (9 January 2018) where the court held as follows: [22] “…the selection panel could not mero motu change the requirements for the Position; they did not have the power and / or the authority to do so. These requirements as set out in the advertisement were set out by the relevant executive authority, being the Minister and could only be changed by him / her. And what is more the Minister would have to set out his / her reason for doing so and such deviation would have to have a legal basis. It was peremptory that only the Minister could change the requirements of the Position as set out in the advertisement. Only once this issue was decided could the arbitrator even consider whether the requirements were discriminatory or not and whether the witnesses’ testimonies were credible. As such the arbitrator by delving into the question as to whether the action by the selection panel in changing the requirements for the Position was reasonable bypassed this absolute requirement. His award as such needs to be reviewed and set aside. Further the arbitrator fails to deal with the issue that the fourth respondent should have been eliminated from the process right from the beginning in that she did not possess the required qualifications for the Position. It could be said that she had no right to even apply for the post. [51] Further it was not within the purview of the selection panel to change and / or expand and / or relax the requirements of the Position as advertised; this was even when same was done with valid reason, which I must mention there was none here. The use of the word “logic”,[70] by the arbitrator, defies reason. His reasoning and findings are illogical. As set out by the applicant in his heads of argument: “It was imperative for the recruitment process to be confined to the applicants who met the requirements (inclusive of the requirement of experience): and it was not open to the selection panel to vary or relax the advertised requirements, as the requirements falls outside their purview and within the purview of the MEC.”[71] Further once the fourth respondent is removed from the final shortlisting process for the Position there is only the applicant left; he was the only (legitimate) candidate that was meant to be left in the running for the Position.[72] The arbitrator as such committed a manifest misconduct in this matter; that is that the error was material to the determination of the dispute and the result arrived at was unreasonable and cannot stand.

Whether the 1st Respondent complied with the provisions of PAM –

85. It was determined above that Seshibe as chairperson of the Interview Panel had no authority to deviate from PAM B 5.3.2. and needed to follow the advertisement to the latter. This directs to the 2nd Respondent failing to meet the requirements in the advertisement. Referring to A (1) 102 clause B.5.6.4 which reads: All applications that meet the minimum requirements and provisions of the advertisement must be handed to the responsible Interview Committee. The non-adherence regarding paragraphs B 5.3.2 supra and B 5.6.4 still the recommendation was never referred back to the Interview Committee. Paragraph B 5.6.11 also directs line functionaries to refer back the recommendation before submitting to the DG/HOD if the provisions and procedures were not adhered to. In this case, the Administrator Mohlala (executing roles of HOD), received the recommendation that did not have brief motivations.

86. It is common cause that Seshibe was chairperson of the interview panel of the post in dispute. It is also common cause that he again came to participate as a line functionary, i.e. Acting Chief Director – Human Resources Manager. Paragraph 5.6.10 of PAM states as follows (See A (1) 103): At the conclusion of the interviews the Interview Committee must rank the candidates in order of preference, together with a brief motivation, and submit this to the relevant line functionary. The line functionary must ensure that the Interview Committee has met the requirement of set out in paragraph B.5. PAM does not stipulate that an Interview Committee member cannot come again and participate as a line functionary. However, common sense directs that you cannot participate in both functions because the line functionary must check compliance of the work done by the Interview committee. In an event there is no compliance with paragraph B.5 of PAM, the line functionary must return the recommendation back to the Interview Committee for rectification as according to paragraph B.5.6.11 of PAM. In my view, Seshibe was supposed to recuse himself as a line functionary.

87. Paragraph B.5.6.10 of PAM expects the Interview Committee to rank the candidates in order of preference, together with a brief motivation which provision is also peremptory. The Interview Committee only stipulated an order of preference without provided a brief motivation except Motang the HR Director. This is against the provisions of PAM.

Whether the Applicant was the best of all the candidates -

88. The 1st Respondent failed to comply with the provision of PAM which was supposed to eliminate the 2nd Respondent and if not for the line functionaries to refer the process back. However, testimony has been led that the Applicant had the required experience and knowledge in terms of the advertisement whilst the 2nd Respondent had no experience in collective bargaining, grievances, and dispute resolution procedures. During evidence in chief Seshibe stated that the Applicant lacked experience because the position is for discipline and the Applicant’s experience is from a different office (dispute resolution) not relevant to the position and not to have worked at conduct management. During cross-examination, Seshibe was referred to PAM A (1) 100 B 5.3.2 the selection process (sifting) to which Seshibe agreed that the ones who does not meet the requirements to be eliminated but the requirements are not limited and must include experience and knowledge. During cross-examination, the Applicant’s version to have worked in conduct management for four years referring to A (1) 16, Seshibe conceded to but was before his time. Referring to A (1) 17, the Applicant investigated and presided over cases in the conduct management directorate which Seshibe conceded to. Seshibe was referred to other skills and competencies relating to the Applicant’s knowledge to legislation, disciplinary processes and Codes which Seshibe conceded to.

89. Seshibe was referred to the 2nd Respondents’ knowledge and experience to which he responded that he does not know but she has certificates referring to A (1) 52. The certificate on (1) 52 is a four-day workshop certificate which Seshibe deemed to be relevant to have an indebt knowledge. Referring to the Applicant’s CV that she is the Senior Chief Education Specialist since 2011, Seshibe conceded to and that she acted as deputy Chief Education Specialist for four years and that such positions are managerial positions. The question was asked to Seshibe who had more managerial experience between the Applicant and the 2nd Respondent to which he responded the Applicant to have more and that he never said that the Applicant had no leadership skills but that the Panel was impressed on how the 2nd Respondent responded to questions. Seshibe conceded that the Applicant had the required leadership skills and relevant experience. No evidence about all the other candidates who applied and who were shortlisted were adduced to make such determination that the Applicant was the best candidate. No focus on the other candidates who were interviewed neither their CV’s or interview performance were presented into evidence to make such determination. Even though evidence directed that the Applicant was recommended or scored second, no evidence in relation to the aforesaid was adduced for me to determine that the Applicant was the best of ALL the candidates who applied for the post

The conduct of the Seshibe throughout the process -

90. At the end of Seshibe’s cross-examination, the following versions were presented to Seshibe – that he wanted the 2nd Respondent to be appointed therefore she was shortlisted and interviewed without the necessary qualifications and experience - He recommended her appointment and ignored what Motang wrote and – Seshibe appointed the 2nd Respondent 9-days after the shortlisting whilst there was an incumbent in the position – These versions Seshibe denied. The Applicant’s notion was that Seshibe’s wanted the 2nd Respondent to be appointed hence his failure to adhere to the prescribed procedures. Seshibe’s testimony that MBA is a senior degree cannot stand because a MBA was never a listed qualification in terms of the advertisement. Seshibe on face value to the 2nd Respondent’s CV and that he knew her placed unwarranted weight on the 2nd Respondent’s MBA which was not a requirement as per the advertisement and it was not Mentioned in the shortlisting minutes. He failed to be truthful about the transcript of the 2nd Respondent’s MBA (R88) which it is highly probable not to have been submitted by the 2nd Respondent for various reasons discussed above. It is common cause that Leepile NI’s (who possesses MBA) ‘qualification was not in the sphere of labour (See A (1) 78) eliminating Leepile NI during shortlisting whereas the 2nd Respondent too was supposed to have been eliminated because both possess MBA. Seshibe under cross-examination, attested to the fact that the panel must follow the advertisement to the latter, which means that it must never deviate nor relax, nor change the enlisted requirements. Seshibe was chairperson of the interview panel of the post in dispute. It is also common cause that he again came to participate as a line functionary, i.e. Acting Chief Director – Human Resources Manager. Seshibe played both roles in that he made a recommendation on his own work hence he saw no need to return it to the Interview Committee for rectification even when the was no compliance with PAM.

91. On 30 June 2021, Seshibe approached the Commissioner that Mohlala must not testify on the day despite having been subpoenaed. On 8 November 2021 he came around 11h30 when the proceedings were to start at 09h00 indicating that he had taken his child to school. He also made the case to be postponed claiming that he had tingling feet. On 9 November 2021, he went home to get his medication and never returned to the arbitration. He ignored the commissioner’s directive that all parties to appear before him on 01 to 02 August 2022, and insisted on testifying on a virtual platform.
Seshibe appointed the 2nd Respondent to act few days after the shortlisting process when there was a person acting in the post. It is my view that Seshibe as chairperson of the appointment process, Acting Chief Director – Human Resources Manager during the appointment process and Director Labour Relations during the arbitration failed to be objective and favored the 2nd Respondent.

92. In conclusion - The 1st Respondent’s HR Manager, O Motang, in his recommendation, wrote as follows (A (1) 92): The appointment of the recommended candidate is supported. The Appointing Officer may however appoint candidate number …on the basis of experience on the area and qualifications and correct rank. Mohlala’s response to the Applicant request for information read: kindly note that you obtained position two according to interview result that is why were not recommended for appointment. The panel recommended the candidate who obtained position one to the post. Motang did not testify as a witness. The only inference drawn from his comment as the first line functionary is that he referred to position two on the basis of experience and qualifications. I am of the view that Seshibe, should he have been bona fide in his position as chairperson of the interview committee from the sifting process and as a senior ranked employee of the Respondent, ensured to follow an objective and fair appointment process. The Khumalo case stresses the importance of ensuring that appointment processes in the public sector are based on ability, objectivity and fairness. Fairness in employment practices and labour relations requires the state to be even-handed and transparent not only to those whom it employs, but so too to those who may wish to apply for employment at a state institution. It would not be fair if the state were to employ persons who do not meet the very requirements that the state itself sets. It is neither fair nor in compliance with the dictates of transparency and accountability for the state to mislead applicants and the public about the criteria it intends to use to fill a post. The formulation and application of requirements for a particular post is a minimum prerequisite for ensuring the objectivity of the appointment process. Persons who do not meet the requirements for a post in the public sector ought not to be appointed.

FINDING:

93. In the premises, the 1st Respondent committed an unfair labour practice by appointing the 2nd Respondent to the position of Chief Education Specialist (PL6).

94. Whether the Applicant was the most suitable, qualified and best candidate to be appointed to the position of Chief Education Specialist (PL6), remains unanswered. Before I can appoint the Applicant to the post, I must find that Applicant was the best of ALL the candidates who applied for the post. I was only provided with the position of the Applicant and second Respondent. No evidence about all the other candidates who applied and who were shortlisted and not shortlisted were adduced to make such determination. No focus on the other candidates who were interviewed neither their CV’s or interview performance were presented into evidence to make such determination. Even though evidence directed that the Applicant was recommended or scored second, no evidence in relation to the aforesaid was adduced for me to determine that the Applicant was the best of ALL the candidates who applied for the post. ELRC Collective Agreement Number 3 of 2016 states that: Once the applicant has proved that he was the best of the candidates who applied for the post, the arbitrator is entitled to appoint him or her to the post. It is a gross irregularity for an arbitrator to appoint an applicant in a promotion dispute where the applicant has not proved that he was the best of all the candidates who applied for the post and that he would in fact have been appointed had it not been for the unfair conduct of the employer. In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others [2012] JOL 29546 (LC) ; it was held that: the overall test is one of fairness, and that in deciding whether or not the employer had acted unfairly in failing or refusing to promote the employee, relevant factors to consider include 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 motivated by bad faith, was arbitrary, capricious, unfair or discriminatory; whether there were insubstantial reasons for the employer’s decision not to promote; whether the employer’s decision not to promote was based upon a wrong principle or was taken in a biased manner; whether the employer failed to apply its mind to the promotion of the employee; or whether the employer failed to comply with applicable procedural requirements related to promotions. The list is not exhaustive. The appointing Officer, Mohlala failed to apply his mind by appointing the 2nd Respondent without executing his responsibility of checking compliance with PAM. He went on to ignore the advice of Motang who drew his attention amongst others, the qualifications and experience of the Applicant. The appointment of the 2nd Respondent was based on invidious considerations and was motivated by bad faith considering the conduct of Seshibe.

AWARD:

95. The 1st Respondent is ordered to set aside the appointment of the second Respondent appointed in the post Chief Education Specialist (PL6) with effect from 31 August 2022, and is directed to repeat the process for the appointment of Chief Education Specialist (PL6) from the onset.

DATED AND SIGNED AT RUSTENBURG ON THIS THE 25th DAY OF AUGUST 2022.


S Fourie

ELRC ARBITRATOR