ELRC 679 -20/21KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT PINETOWN, KWAZULU-NATAL
CASE NO: ELRC 679 -20/21KZN
In the matter between:

PSA obo A.N KUBEKA APPLICANT
(Employee)

and

DEPARTMENT OF EDUCATION KWAZULU - NATAL FIRST RESPONDENT
(Employer)

TGJ ZUNGU SECOND RESPONDENT

ARBITRATION AWARD

Details of hearing and representation

1. This arbitration took place over three days and was finalized on 16 January 2023. Ms. Z. Manyoni, an official from the Union PSA, represented the applicant. Mr. I. Makhooe, from employee relations, represented the first respondent. Mr. S Mkhize, an official from the Union SADTU, represented the second respondent.

2. The hearing was digitally recorded.

3. The representatives made an application to submit closing arguments in writing, which I granted. The closing arguments were timeously received.


4. I marked the applicant’s bundle of documents bundle “A” and the first respondent’s bundle of documents bundle “B”.

5. The pre-arbitration minute (the minute) concluded between the parties on 09 May 2022 is included in bundle “A” .


Issue in dispute

6. Paragraph 5.1 of the minute stipulates the primary issue that I am required to decide as follows:

“Whether the employer committed an unfair labour practice by not promoting the applicant to the post of Chief Education Specialist.”


Background to the dispute

7. The applicant is a Deputy Chief Education Specialist in Learner Affairs presently based in the Pinetown District, KwaZulu Natal. The applicant applied for post no. 0BE/70/2020, advertised in terms of Human Resources Management Circular 38/2020 (HRMC 38/2020), being the post of Chief Education Specialist (the post).

8. The applicant and four other candidates were shortlisted and interviewed for the post on 03 December 2020.

9. The second respondent scored 40.65 points in the interview process. The applicant scored 32.66 points. The second respondent having scored the highest number of points was ranked as the first preferred candidate on the schedule of nominated candidates, and the applicant as the fourth preferred candidate. The second respondent was accordingly appointed to the post.

10. The applicant referred a dispute to the ELRC alleging that she was the victim of an unfair labour practice. The dispute remained unresolved at conciliation and was referred to arbitration, before me.

Analysis of evidence and argument


11. The facts of this matter appear from the analysis that follows:

12. The pre-arbitration minute stipulates the specific issues in dispute that I am required to determine and are recorded in paragraph three of the minute as follows:


12.1 Whether the employer rightfully considered the SACE documents presented by the second respondent; and

12.2 Whether the second respondent (Zungu) was the most suitable candidate for the post of Chief Education Specialist.

13. In paragraph 6 of the minute, the applicant records that she seeks relief in the form that Zungu’s appointment be set aside; that the selection process is re-done from the interview stage, and that an independent panel is appointed to conduct the interviews.

14. The applicant testified and did not call any witnesses. The first respondent did not call any witnesses and relied on the testimony of the second respondent. Zungu testified in defense of his appointment and also did not call any witnesses.

15. It is trite law that an arbitrator must determine an unfair labour practice dispute in terms of the provisions of Section 186(2)(a) of the Labour Relations Act (the LRA). That section reads as follows:

“An unfair labour practice means any unfair act or omission that arises between an employer and an employee involving –
a. Unfair conduct by the employer relating to the promotion, demotion, … of an employee...”

16. It is common cause that this is a promotion dispute. The applicant alleges that she suffered unfair conduct in the selection process in the manner set out in paragraph 12 above. I proceed to determine the facts in dispute as stipulated by the parties.

SACE Registration

17. This issue is not clearly defined. It however emerged in the evidence that the applicant’s real complaint is that Zungu was not registered with the South African Council for Educators (SACE) at the time that he applied for the post.

18. The applicant testified that the Certificate of Registration issued by SACE to Zungu is dated 11 January 2021. He applied for the post on 1 September 2020 and the closing date for such applications was 4 September 2020 . In the circumstances, Zungu did not have a valid SACE registration certificate as a professional educator on the date of his application. Zungu was therefore not registered with SACE at the time of his application, or so the applicant contended.


19. The applicant consequently submitted that the selection process was procedurally unfair. Zungu’s application was defective in that it did not comply with the application process as stipulated in the procedure manual . His application ought to have been sifted out at the shortlisting stage and he ought not to have been interviewed for the post. The applicant concluded that the fact that he was interviewed, is procedurally unfair.


20. Paragraph 6 of HRMC 38/2020 entitled “Procedures for Submission of Applications” reads in subparagraph 6.1 as follows:

“6.1 Application must be submitted on the attached application for employment form Z83 obtainable from any public service department and should (my emphasis) be accompanied by curriculum vitae comprising not more than 2000 words together with certified copies of Education Qualifications, Identity Document, and Driver’s License documents.”

21. Zungu testified that he studied the procedure manual, in particular paragraph 6.1, carefully. He attached only those documents that the manual specified. There is no mention of a SACE registration certificate and that is why there was no obligation for him to attach his certificate to his application.

22. In the first instance, it is evident from a plain reading of paragraph 6.1 quoted above that an applicant is not required to attach to his application any of the documents listed. This is evident from the word “should” as opposed to the word “must”. It was not mandatory for him to attach any of the listed documents. Moreover, a SACE Registration Certificate is not on the list of documents indicated. In the premises, the applicant’s contention that Zungu’s application ought to have been sifted out at the short-listing stage is misdirected and must be rejected for that reason. That however does not resolve the question of whether the applicant was registered with SACE at the time that he applied for the post.

23. The requirements to be considered for promotion to the post are set out in HRMC 38/2020 as follows:

“Requirements for Chief Education Specialist – Governance and Management

Requirements: a recognized 3 /4-year qualification, which includes professional teacher education. A minimum of 9 (nine) years teaching and school management experience. Registration with SACE. Proof of valid driver’s license.”


24. Registration with SACE was a basic requirement to be appointed to the post. In this regard the South African Council for Educators Act , confirms in Section 21 the following:

“Compulsory Registration of Educators: -

(1) A person who qualifies for registration in terms of this ACT must register with the Council prior to being appointed as an educator.

(2) No person may be employed as an educator by any employer unless the person is registered with the Council.”

25. In the first instance, and in order for Zungu to have been appointed as an educator, it was a legal requirement that he be registered with SACE. The applicant’s contention that Zungu was not registered arises from the fact he did not attach his SACE Certificate to his application. He instead attached a copy of a letter sent to him by SACE, dated 29 April 2003 The letter confirms that Zungu had applied for a SACE registration certificate and that such certificate would be issued to him upon payment of the nominal registration fee required by SACE.

26. Zungu testified that he is registered with SACE with effect from 11 March 2003. He had attached the aforesaid letter to confirm that he had applied for a registration certificate and was awaiting the receipt thereof. On perusal of Zungu’s SACE certificate, it is noted in the bottom right-hand side thereof that he was first registered with SACE on 11 March 2003. In the circumstances, the SACE Certificate that he submitted at the arbitration confirms that as of the date of making the application on 01 September 2020, Zungu was registered with SACE. He, therefore, complied with the registration requirements prescribed by the SACE Act and HRMC 38/2020. The applicant incorrectly assumed that Zungu was required to attach a SACE Certificate to his application as proof that he was registered with SACE as of the date of his application.


27. As a matter of reason and logic, the simplest way to prove such registration is to attach one’s SACE Certificate to one’s application. The failure to do so however does not necessarily result in the conclusion that an applicant is not registered with SACE. The requirement as set out in HRMC 38/2020, on its ordinary literal interpretation, is registration with SACE. Collective Agreement 1 of 2010 confirms that applications from applicants who are not registered with SACE must be rejected .

28. The applicant alleged further that the copy of the letter dated 29 April 2003 was a fraudulent letter in that it appeared to be a cut-and-paste document and was not authentic. This challenge was made late in the applicant’s case and necessitated an adjournment for the original to be secured. I pause to reiterate that the letter and its authenticity is not determinative of whether Zungu was registered with SACE. He however submitted what he alleged to be the original document. This document was also placed in dispute.

29. I as an arbitrator am not qualified to determine the authenticity of the letter save to say that the letter appears to be the original of the copy in the bundle. In any event, the parties agreed, in paragraph 8.1 of the minute, that the documents in the bundles are what they purport to be. The issue is in my view a moot one. I do not need to deal any further with this aspect. I accept Zungu’s version that the letter was submitted to confirm that he was registered with SACE and that a SACE certificate had previously been applied for.


30. In the premises, I find that Zungu was not required to attach his SACE Certificate to his application. Secondly, his most recent registration certificate confirms that he is registered with SACE with effect from 11 March 2003. It follows that at the time that he applied for the post in September 2020, he was registered with SACE.

Management experience

31. It is evident from the extract set out in paragraph 23 above that another minimum requirement to be considered for promotion to the post was that an applicant must have a minimum of 9 years, of “teaching and school management experience”. The applicant contended that Zungu did not have nine years of management experience and therefore did not meet this minimum requirement. He ought not to have been interviewed for the post.

32. In the first instance Zungu’s shortlisting checklist confirms that the shortlisting committee was satisfied that he had a minimum of nine years teaching and school management experience. The applicant did not attack that particular aspect of the checklist. The applicant in fact relied on the correctness of the checklist insofar as it indicates that Zungu did not attach proof of his SACE registration. On a plain literal interpretation thereof the nine years minimum period refers collectively to both teaching and management experience and not just to management experience. This is in my view evident from the conjunction “and” between teaching and management experience. No specific period is provided for management experience. The applicant’s contention on this aspect was once again incorrect.


33. It is evident from the applicant’s Z83 application form that the applicant commenced teaching in 1999 and to date has more than 20 years teaching and management experience. Even if I were wrong in my interpretation of the requirement it is further evident from his work experience as set out in form Z83 that the applicant acted in a management capacity as a deputy principal and a principal from 2013 onwards. He went on to set out his further management experience in detail. I don't need to repeat that evidence here given that the challenge made by the applicant was whether Zungu had the minimum of nine years teaching and management experience. Zungu’s evidence and the documentary information before me establishes that he met this minimum requirement.

34. Whilst the applicant may have more management experience than Zungu, that did not exclude the latter from being interviewed for the post. He evidently performed better than the applicant at the interview stage.

35. The applicant did not corroborate her further allegation that certain members of the selection committee were Zungu’s friends who had favoured him by shortlisting and interviewing him for the post. In any event, I have found that Zungu met both minimum requirements of SACE Registration and the stipulated nine years of teaching and management experience. He was in my finding entitled to compete for promotion to the post.

Second respondent’s promotion

36. The applicant alleged that the Zungu was not the most suitable candidate for the post and therefore ought not to have been promoted to same. The applicant believes that she was the most suitable candidate for such promotion. In the circumstances, the fact that she was not promoted was substantively unfair.

37. The applicant alleged in particular that the selection committee had not fairly and properly considered her CV, past work experience, skills, and competencies.

38. The applicant testified that she was the best candidate for the post because she had higher qualifications and more experience than the Zungu. In the first instance, she acted in the post of Chief Education Specialist for seven years and six months from 2012 to December 2020. Zungu had never acted in the post. The decision to promote the second respondent over and above her was therefore unfair.


39. The applicant’s highest qualification is a Master of Education which she obtained from the University of KwaZulu-Natal on 21 April 2009. Zungu’s highest qualification is an Honours Degree in Inclusive Education which he obtained from UNISA in 2011. The applicant alleges that she ought to have been preferred for promotion to the post because of her higher qualification. The Court has authoritatively pronounced on both issues raised by the applicant. The fact that a successful candidate does not have better qualifications than an unsuccessful candidate does not mean that his or her promotion was unfair. Moreover, the fact that an applicant has acted in a post for several years does not give him or her an automatic right to promotion. See SAPS v SSSBC

40. In the matter of Noonan v SSSBC & Others, the Labour Appeal Court held that there is no right to promotion. Candidates only have the right to be given a fair opportunity to compete for a particular post. If, a candidate has been given that opportunity the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. So long as the decision can be rationally justified, (even) mistakes in the process of evaluation do not constitute unfairness justifying interference with the decision to appoint.

41. In the matter at hand, both the applicant and the Zungu were shortlisted to be interviewed for the post. Both candidates were given an equal opportunity to compete for the promotion. During the interview process, Zungu scored the highest number of points, 40.65 points, whilst the applicant scored 32.66 points. Zungu was ranked as the first preferred candidate while the applicant was ranked as the fourth preferred candidate. The second-ranked candidate Sabela, and the third-ranked candidate Brijlal, both performed better than the applicant in the interview process.


42. The onus in a promotion dispute is on the applicant to prove that he or she was the best candidate for the post. In this instance applicant had to prove not only that she was better than the first ranked candidate but also that she was better than the second and third ranked candidates. With regard to Zungu she was required to demonstrate that his appointment was either arbitrary or motivated by some unacceptable reason. The applicant, save for highlighting her achievements, qualifications, and experience, failed to furnish any evidence proving that the promotion was arbitrary or motivated by an unacceptable reason. The applicant failed to demonstrate that she was the most suitable candidate for the post.

43. In the matter of Ncane v SSSBC & Others, the Labour Appeal Court held that the process of evaluating the suitability of a candidate for promotion is not a mechanical process and there is a justifiable element of subjectivity or discretion involved. It is for this reason that the discretion of an arbitrator to interfere with an employer’s substantive decision to promote a certain person is limited.

44. As regards the scoring process the LAC held in the Ncane matter above that an arbitrator may only interfere with an employer’s substantive decision to promote a certain candidate (as opposed to a procedural decision where objective criteria have been set) where the decision is irrational, grossly unreasonable or mala fide unless the employer has set an objective standard. The applicant did not seriously attack the individual or average scores awarded to Zungu by the Interview Committee. Instead, she made broad and sweeping statements as to why she was a better candidate than Zungu. The court held that a candidate who scores the most points must be recommended by the panel. A failure to comply with the rules may result in substantive unfairness.

45. Whether the Applicant’s positive attributes warranted her scoring the overall higher number of points and whether the interview committee erred in the point scoring exercise I, as an arbitrator, am not qualified to determine. No allegation of bad faith in the scoring process was made by the applicant party. No discrepancy or irrationality was pointed out in the mark allocations. No evidence was led that Zungu’s promotion was arbitrary or motivated by an unacceptable reason. Finally, no evidence that Zungu’s promotion was grossly unreasonable, or mala fide was put forward by the applicant.

46. In the final analysis, the onus to prove that the scoring process was substantively unfair rested with the Applicant. It was incumbent upon her to prove that the process was beset with irrationality or unreasonableness on the part of the Interview Committee. There is no evidence before me in this regard.

47. In the premises I find that the Applicant has failed to discharge the onus on her to prove the procedural and substantive unfairness that she alleged.


AWARD

I accordingly make the following award:


(a) The application is dismissed.

07 February 2023

ELRC DATE
Senior Panelist
Adv. Anashrin Pillay