ELRC899-21/22LP

IN THE ELRC ARBITRATION
BETWEEN:

MASEBULE MAMIKI MATHUNYANE APPLICANT/EMPLOYEE
and
DEPARTMENT OF EDUCATION:
LIMPOPO 1st RESPONDENT/EMPLOYER
TLAKA, ROSINA 2nd RESPONDENT


ARBITRATION AWARD

Case Number: ELRC899-21/22LP

Last date of arbitration: 1 November 2022
Receipt of closing arguments: N/A
Date of award: 1 November 2022

MATHEWS RAMOTSHELA
ELRC Arbitrator


Case No: ELRC899-21/22LP

ARBITRATION AWARD


DETAILS OF HEARING AND REPRESENTATION

[1] The arbitration hearing was held at the employer’s offices, Polokwane, Limpopo, on 20 July 2022 and 1 November 2022. The employee, who was present at both sittings, was initially represented by M Tjia, an official of SADTU, but later unrepresented as she pitched up at the hearing with someone that is not eligible to represent a party. M Matlou, the employer’s employee relations personnel, presented its case. The second respondent, R Tlaka, was not in attendance. The proceedings were digitally recorded. The employer submitted a bundle of documents marked as Bundle A.

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 applied for the post of deputy principal at Kenneth Masekela School but was not shortlisted.
(b) The employee satisfied the minimum requirements;

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

Mamiki Masebule Mathunyane testified under oath as follows:

[5] She applied for the post of principal as advertised. Her qualifications that she attached in support of her application are Bachelor of Administration (B Admin), Teacher’s Diploma, ITC Certificate and Management Certificate. She is of the view that she was disadvantaged because she has relevant leadership and management experience as well as being a departmental head for a period of five years. The incumbent of the position is one Ms Tlaka, who is a CS1 teacher, a level 1 post. CS1 is not a management position.

Under cross-examination she further testified as follows:

EMPLOYER’S EVIDENCE

[6] She concedes that the department is regulated by policies, precepts and collective agreements. The requirement of additional qualifications disadvantaged her.

[7] On page 11 of Bundle A is the Collective Agreement 2 of 2020, which contains guidelines for shortlisting. On page 16 is the shortlisting procedure. On page 22, paragraph 2 stipulates as follows: “The shortlisting process shall be according to two sequential phases, i.e. one phase following the other.”

Clause 3 states as follows: “Phase 1 of the shortlisting shall be the starting point to determine the number of candidates to be interviewed.

[8] She does not have additional educational qualifications. The only educational qualification she has is a Teacher’s Diploma.

[9] Only one witness testified for the employer.

David Mankedi Makgoga (David) testified as follows:

[10] He is employed as a school principal at Rebone Secondary School and was the chairperson of the panel that conducted both the interview as well as the shortlisting process.

[11] The employee was not shortlisted because the applicants that were shortlisted were sifted into the next stage based on the set criteria as per guidelines. Prior to looking at the application, the selection committee deliberates on the criteria and thereafter starts looking at the applications.

[12] The employee did not fall into the top five applicants in terms of qualifications. Because all applicants would have entry qualifications for teaching, on top of that the panel introduces relevant additional qualifications, being B Ed Honours in Education.

[13] The employee did not attach any additional relevant qualifications. The qualification the witness saw, which is not relevant, was in respect of Bachelor of Administration. This is not a relevant educational qualification.

[14] On page 11 is Collective Agreement 20 0f 2020 and on page 27 it stipulates additional qualifications in education. An applicant that does not have additional educational qualification is scored zero.

[15] As per page 68 of the bundle, the incumbent, Ms Rosina Tlaka, holds a degree in Bachelor of Education Honours. Compared to the employee, Tlaka was more eligible to be shortlisted.

[16] Satisfying the minimum requirements is not sufficient basis upon which an applicant can be shortlisted.

ANALYSIS OF EVIDENCE AND ARGUMENT

[17] The employee alleges that the employer’s conduct of neglect to shortlist her 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.

[18] The employee admitted under cross-examination that she did not have additional educational qualifications. The only teaching qualification she holds is a Teacher’s Diploma and it has been evident, despite the employee’s submissions and denials, that her additional qualification in B Admin did not assist her application as same is decidedly not an educational qualification. By contrast, the incumbent, and presumably other shortlisted applicants, each hold a degree in Bachelor of Education (Honours), which is decidedly an additional qualification and relevant, as set out by the shortlisting panel.

[19] The employer’s only witness, David, who was the chairperson of the panel, has given irrefutable evidence that as per relevant clause of the policy, the panel is clothed with powers to deliberate and set out additional relevant qualifications, especially as all applicants are liable to satisfy the minimum educational qualifications. Accordingly, in order to identify the best candidates for the next interview phase, additional qualifications are being introduced. In my considered view, the conduct of the panel in this regard is based on sound reasoning and done solely for purposes of obtaining the best candidate for the advertised post. There is paucity of evidence that the additional qualifications were introduced with the sole purpose of excluding the employee from the shortlist.

[20] More specifically, the panel’s decision to exclude her from the shortlist was based on rationality and objectivity.

[21] In conclusion, I find that while the employee has dismally failed to present sufficient evidence to underpin her 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 both oral and 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 her out for a need to submit additional requirements that may be unnecessary for the post.

AWARD

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

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

Council Panelist: MATHEWS M RAMOTSHELA

Signed