ELRC904-21/22LP

IN THE ELRC ARBITRATION
BETWEEN:

LIVHIWANI PARTICIA MASHAU APPLICANT/EMPLOYEE
and
DEPARTMENT OF EDUCATION: LIMPOPO 1st RESPONDENT/EMPLOYER
MAMBURU, M S 2nd RESPONDENT


ARBITRATION AWARD

Case Number: ELRC904-21/22LP

Last date of arbitration: 8 November 2022
Receipt of closing arguments: 15 November 2022
Date of award: 17 November 2022

MATHEWS RAMOTSHELA
ELRC Arbitrator


DETAILS OF HEARING AND REPRESENTATION

[1] The arbitration hearing was initially held on the Zoom platform on 19 July 2022 and also at the employer’s offices, Polokwane, Limpopo, on 8 November 2022. The employee, Livhiwani Particia Mashau was present at both sittings, was initially represented by M H Makhafola, an official of SADTU, but later represented by T R Maphaha, also an official of SADTU. The employer, Department of Education: Limpopo was represented M Matlou, an employee relations personnel. The second respondent, M S Mamburu, 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 Kutama School but was not appointed.
(b) The interview committee rated the employee number two while the incumbent was rated number one.

Issues in dispute

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

SURVEY OF EVIDENCE AND ARGUMENT

EMPLOYEE’S EVIDENCE

Livhuwani Patricia Mashau testified under oath as follows:

[5] She applied for the post of principal at Kutama School as advertised. Having being shortlisted, she was interviewed but not appointed. On page 96 there is a Circular 150 of 2021 which deals with the Employment Equity of principals, amongst others. It says African males are over-represented while African females are under-represented. It is a requirement that strict adherence to the provisions of the collective agreement be observed when appointing. The department failed to apply its own equity plan.

[6] On page 84 of the Bundle is the Departmental Circular 116 of 2019 and the relevant clauses are 1, 2 and 3. The interview committee shortlisted at least three candidates from the under-represented group.

[7] The employer has failed to comply with the provisions of the collective agreement when it has failed to reject the recommendations of the SGB, which is not in line with the provisions. They failed to uphold the equity plan. As a result, she was disadvantaged as she could not be appointed.

Under cross-examination she further testified as follows:

[8] The interview committee ranked her number two while the incumbent, Mr Mamburu, was ranked number one. She agrees that the employer appointed the best candidate.

EMPLOYER’S EVIDENCE

Mukondeli Violet Makhari (Makhari) testified as follows:

[9] She is employed by the employer as a deputy director of corporate services. The employee was not appointed as Mr Mamburu was ranked by the interview committee as number one while the employee was ranked number two. As envisaged by the relevant provisions of the Employment of Educators Act, when recruiting candidates for posts, the employer has to look at the ability of the candidate and in this instance the incumbent turned out to be more experienced than the employee. Furthermore, in terms of qualifications, the incumbent was more qualified than the employee.

[10] There is no general right to promotion and even where the candidate may have scored the highest marks, the employer also checks other factors.

WRITTEN CLOSING ARGUMENTS

[11] Both parties requested to submit written arguments. Given that the matter was arbitrated over two days that were far apart and the parties needed time to consolidate both presentations, I exercised my discretion to give the indulgence and by agreement, the parties had to submit their respective arguments by not later than 15 November 2022. Both parties have submitted the anticipated arguments and I have considered the submissions made. For the sake of brevity, the minutiae of the submissions shall not be repeated herein.

ANALYSIS OF EVIDENCE AND ARGUMENT

[12] The employee alleges that the employer’s conduct in failing to appoint her to 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.

[13] In her evidence, as surveyed above, the employee has not presented any evidence that shows that the employer has done anything that one may say amounts to unfairness. It appears as common cause that the employee, as per the ratings of the interview committee and as well as the recommendations of the SGB, was not the best candidate as she was rated number two. The incumbent was identified as the best candidate.

[14] The nub of the employee’s submission is that the employer has failed to follow employment equity requirements and as a result, she was prejudiced and hence not appointed. She submits that the incumbent, being male, should not have been appointed as he falls under a group that is overrepresented while herself, being female, falls under a group that is under-represented. From the totality of the evidence presented, there is no iota of evidence that says that males should no longer be appointed simply because the employer has to implement its equity plans. The mere fact that males may be over-represented does not translate into a moratorium on appointing African males and it would be fallacious to say that merely because the employee is female, irrespective of her rankings as per the interview committee assessments, should be appointed.

[15] The selection committee has been clothed with powers to interview and deliberate on how each interviewed candidate may have performed and in the absence of any evidence that the committee members may have acted in any arbitrary manner, I am of the considered view that one should defer to their ratings of candidates. The employee has not presented any evidence that assails the manner in which the interview panel arrived at their rankings of candidates. In fact, she has admitted under cross-examination that the incumbent was the best candidate.

[16] While the employee has dismally failed and/or neglected to present sufficient evidence of unfairness by the employer, the employer, who does not even shoulder the burden to present evidence to establish a prima facie case, has succeeded to present sufficient evidence to parry the allegations of unfairness. Through the testimony of its only witness, Makhari, which evidence was not successfully challenged and thus accepted as probably true, the employer has shown that the interview committee had, through its processes, identified the incumbent as the more experienced and qualified educator to occupy the advertised post.

[17] As I have already stated above, the onus to establish a prima facie case lies with the employee and having failed to do so, it would have been superfluous for the employer to present more evidence to justify its conduct, especially given that it is common cause that the employee was not rated the number one candidate and as I have already highlighted, the mere fact that the employee is a female and thus falls under an under-represented group is not per se sufficient to entitle her to be appointed. Indeed, as submitted by the employer, there is no general right to be promoted and a candidate has to demonstrate that more than falling under the under-represented group, she was the best person suitable for the post, especially as the interests of the learners are paramount.


[18] 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 facts that are common cause as highlighted above, oral and documentary evidence that shows that not appointing the employee into the position did not amount to any unfairness and was furthermore not influenced by any arbitrary prejudices.


AWARD

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

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

Council Panelist: MATHEWS M RAMOTSHELA


Signed