ELRC311-22/23LP

IN THE ELRC ARBITRATION
BETWEEN:

MAKGALE PETER MATHABATHA APPLICANT/EMPLOYEE
and
CAPRICORN TVET COLLEGE 1st RESPONDENT/EMPLOYER
PHUKAMANI TSHUMA 2nd RESPONDENT


ARBITRATION AWARD

Case Number: ELRC311-22/23LP

Last date of arbitration: 18 October 2022
Receipt of closing arguments: N/A
Date of award: 25 October 2022

MATHEWS RAMOTSHELA
ELRC Arbitrator


Case No: ELRC311-22/23LP

ARBITRATION AWARD


DETAILS OF HEARING AND REPRESENTATION

[1] The arbitration hearing was held at the employer’s offices, Polokwane, Limpopo, on 18 October 2022. The employee, who was present, was represented by T Monyai, an official of SADTU. M J Makhubela, the employer’s employee relations personnel, presented its case. The second respondent, Phakamani Tshuma, was also in attendance. The proceedings were digitally recorded. The parties submitted bundles of documents marked as Bundle A, B, C, D, E, and F respectively.

ISSUE TO BE DECIDED

[2] I am enjoined to determine whether the employer has committed an unfair labour practice relating to promotion.

BACKGROUND TO THE ISSUE

[3] Common cause issues/facts

(a) The employee is employed as a lecturer at the employer’s Seshego Campus.
(b) From February 2020 to December 2022 the employee was acting as an education specialist.
(c) The position of Education Specialist was advertised and candidates were shortlisted, interviewed and the successful candidate, being the second respondent, was appointed into the post.
(d) The applicant applied the post but was not shortlisted.
(e) In his application for the post, the applicant did not attach a moderator certificate.

Issues in dispute

[4] Whether the employer’s conduct of not shortlisting the employee for the advertised post of education specialist constituted an unfair labour practice.

SURVEY OF EVIDENCE AND ARGUMENT

EMPLOYEE’S EVIDENCE

Makgale Peter Mathabatha testified under oath as follows:

[5] On page 11 of Bundle A is the advertisement in respect of the post for education specialist. He has all the listed requirements namely, a national diploma in mechanical engineering, Welding Certificate, B tech in Education, more than three years teaching experience in mechanical engineering field at TVET sector, computer literacy and a valid driver’s licence. Moderator and assessor qualifications are just added advantage.

[6] He expected to be shortlisted even though he has no moderator certificate because this is not a requirement for the post. Also, he has acted in this position for more than twelve months and for a person to act, one has to satisfy these requirements.

[7] As per Bundle F on item 4.2.3 (e), regarding the recruitment and selection policy of the Department of Higher Education, the policy on shortlisting states as follows:

“Applicant(s) who meet the minimum requirements of the post and had an opportunity to act in the same post must be shortlisted in the selection process, provided they were duly appointed by the appointing/delegated authority.”

[8] Based on this policy, he was supposed to have been shortlisted as he satisfied the requirements. Not being shortlisted, he was denied an opportunity to be appointed as he is certain that he was going to be appointed.

[9] As a remedy, he is praying for the recruitment process to be restarted.

Under cross-examination she further testified as follows:

[10] Had he being a holder of a moderator certificate, he would have attached same. He was asked to read from Bundle D as follows:

“Key Performance areas: supervise and manage all activities pertaining to teaching and learning in the programme. Assess and moderate subjects in the programme. Teach subject in the programme. Manage and supervise registration and examinations in the programme. …”

[11] He concedes that the employer needs certificates for moderator and assessor based on the duties of the incumbent for the post.

[12] He was asked to read from item 4.2.3 (c) and (d) of Bundle F.

Sub-item (c) reads as follows: “The selection committee must agree on the criteria based on the inherent requirements of the advertised post when screening the applications.”

“Sub-item (d) reads as follows: “Additional criteria should be applied in order to reduce the number of candidates who meet the minimum requirements. The panel must agree on the additional criteria and eliminate the number of candidates based on the same criteria as per paragraph (c) into a reasonable number as per paragraph (a) and this must be documented. Only applicants who qualified on initial criteria should qualify for additional criteria.”

EMPLOYER’S EVIDENCE

[13] Only one witness testified for the employer.

Jane Moja (Moja) testified as follows:

[14] She works for the employer as deputy principal for corporate services. Looking at page 11 of Bundle A, being a copy of the advertisement, the applicant did not satisfy the minimum requirements. The shortlisting control sheet as appears on page 1 of Bundle B has a remark that says “no moderation”.

[15] Moderation and assessor qualifications are mentioned as added advantage and this would be a benefit for an applicant to be better than others as per set criteria. With regard to this post, it would assist an applicant for instance, to set a question paper, as well as assess and moderate a question paper. This is a supervisory post and that is why moderation was regarded as a requirement.

[16] The fact that one is acting on a position does not guarantee appointment to the post if one does not meet the requirements.

[17] It is the selection committee that agrees on the criteria based on the advertisement. The committee comes up with criteria that relates to the advertisement in order to reduce the number of applicants because it is required that there be a minimum of three and a maximum of five shortlisted applicants.

ANALYSIS OF EVIDENCE AND ARGUMENT

[18] The employee alleges that the employer’s conduct of neglect to shortlist him for the advertised post constituted an unfair labour practice relating to promotion. As per general principles of evidence, the onus to establish unfairness rests with the employee. Has the employee succeeded to discharge the requisite burden? In my considered view, the employee has dismally failed to do so. My reasons follow.

[19] From the evidence tendered, it emerges that the nexus of the employee’s case for unfairness is the policy that he quoted as per Bundle F, which says that an applicant for an advertised post who meets the mentioned minimum requirements and has acted in the post must be shortlisted. It is indeed true that as per the advertisement, the employee satisfies the bare minimum requirements. However, the very same advertisement mentions that qualifications in moderation and assessment would be an added advantage. It is the employer’s case that the employee was not shortlisted on the basis that he did not submit proof of moderator qualification. In fact, from the evidence presented by both parties, it appears as common cause that indeed the employee does not hold a qualification in moderation.

[20] As it emerged from the reading of other sections of the shortlisting policy when the employee was under cross-examination, particularly clauses 4.2.3 (c) and (d) of Bundle F, we learn that the winnowing process is done by a selection committee that is clothed with powers to augment the minimum requirements that are contained in an advertisement. Sub-item (c) tells us that the selection committee must agree on the criteria based on the inherent requirements of the advertised post when screening the applications.

[21] It is the employer’s case that a qualification in moderation forms part of the minimum requirements. I agree. The mere fact that the advertisement says that a qualification in moderator would be an added advantage does not shut out the selection committee’s discretion to evaluate and determine what would be further requirements based on the inherent requirements of the post. As per Bundle D, being the advertisement, one of the key performance areas is to assess and moderate subjects in the programme. To this end, the selection committee deemed it important that an applicant for the post must have a moderator qualification and because the employee did not present any such qualification, he was excluded. I find nothing unfair about this exclusion and it is my considered view that selection committee’s conduct was not arbitrary.

[22] As per sub-item (d) of clause 4.2.3 of Bundle F, the selection committee is allowed to apply additional criteria so as to reduce the number of candidates who meet the minimum requirements. The employee indeed met the minimum requirements as mentioned in the advertisement. However, he did not satisfy the additional requirement (of moderator) that the selection committee, in an endevour to reduce the number of candidates who meet the minimum requirements, introduced as important for an incumbent that would, as one of the key performance areas, be required to assess and moderate subjects in the programme. The unchallenged testimony of Moja on behalf of the employer is that the post in question is a supervisory one and the incumbent would be expected to set a question paper as well as assess and moderate a question paper.

[23] Moja’s unchallenged evidence is furthermore that the committee comes up with criteria that relates to the advertisement in order to reduce the number of applicants because it is a requirement that there be a minimum of three and a maximum of five shortlisted applicants. I agree that unless the selection committee is given leeway to determine what are further requirements in addition to what is mentioned in the advertisement, it would be unable to reduce the number of applicants to a small pool that would be eligible for interview, especially as most applicants are likely to meet the bare minimum requirements that would be contained in the advertisement.

[24] In conclusion, I find that while the employee has dismally failed to present sufficient evidence to underpin his assertion of unfairness, the employer, who does not even shoulder the burden to prove the alleged unfair conduct, has presented adequate evidence that is backed up by documentary evidence that shows that excluding the employee from the shortlisted candidates did not amount to any unfairness and was furthermore not influenced by any arbitrary prejudices. The employee has not presented any evidence to show that the selection committee, inconsistent with its treatment of other applicants, has singled him out for a need to submit additional requirements that may be unnecessary for the post.

AWARD

[25] The employer did not commit an unfair labour practice, as alleged or at all.

[26] The employee’s claim of unfair labour practice is hereby dismissed.

Council Panelist: MATHEWS M RAMOTSHELA

Signed