ELRC646-22/23LP

IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION MEETING HELD IN Polokwane on the 10 March 2023

Case Number: ELRC646-22/23LP

In the matter between: -

SADTU obo Maja ME Applicant

And

Limpopo Department of Education 1st Respondent

Mphahlele J. T 2nd Respondent

ARBITRATION AWARD

Nature of the dispute: Section 186(2) of the LRA: unfair labour practice relating to promotion.


DETAILS OF THE HEARING AND REPRESENTATION

1. The hearing was held in Polokwane on the 10 March 2023. The Applicant was represented by Mr. Thobja Monyai from the South African Democratic Teachers Union (“SADTU”) whereas the respondent was represented by Mr. Nyathela R.E, who is employed by respondent as the Deputy Director responsible for Labour Relations.
2. Both parties submitted bundles of documents which were admitted as evidence and were marked as “R1” and “A1” for the Respondent and the Applicant respectively. Bundle “R1” contained some 65 pages, while bundle “A1” contained 86 pages.
3. The proceedings were digitally recorded. At the end of the proceedings, parties requested an indulgence to file written closing arguments on the Friday, 16 March 2023. The Applicant submitted the written closing arguments, which have been taken into consideration in arriving at the conclusions herein.

THE ISSUE IN DISPUTE
4. The issue for determination is whether the Applicant was unfairly denied promotion by the Respondent’s failure to appoint at the conclusion of the interviews for the position of Head of Department at Matime II Secondary School.

BACKGROUND TO THE DISPUTE

5. The Respondent advertised post number 6 for the Departmental Head at Matime II Secondary School. The Applicant was shortlisted together with others, and he was ranked position number two (2) by the interviewing committee.
6. A certain Mr. Mphahlele with no relations to Mphahlele J.T, the second respondent, was ranked position number one (1). However, the said Mphahlele did not accept the appointment at Matime II Secondary. The Applicant argues that he was next in line for appointment.
7. The Respondent re-advertised the same position with changes in job requirements. The Applicant applied again, however he was not shortlisted.

SUMMARY OF EVIDENCE ON BEHALF OF THE APPLICANT

8. Mr. Maja testified under oath, and his evidence can be summarized briefly as follows. That he applied for the vacant position of Head of Department at Matime II Secondary School, and was ranked position number two (2) by the interviewing committee. The interview committee ranked a certain Mr. Mphahlele for position number one (1). The said Mphahlele did not accept the appointment at Matime II Secondary School as he was appointed elsewhere. Mr. Maja further testified that he was qualified for the position in question, having taught mathematics literacy and English previously.
9. Further, Mr. Maja testified that the Respondent did not appoint him as the next in line, opting to advertise the position with different curriculum requirements. Mr. Maja testified that he re-applied when the position was re-advertised. However, he was not shortlisted.

SUMMARY OF EVIDENCE ON BEHALF OF THE RESPONDENT
10. The Respondent closed its case without calling any witnesses and/or leading any evidence.
POINT IN LIMINE
11. At the beginning of the proceedings, Mr. Nyathela for the Respondent raised a point in limine to the effect that the ELRC does not have jurisdiction to arbitrate because the matter was referred out of time. On the version of Mr. Nyathela, the matter was out of time because the Applicant only lodged a dispute after the appointment of the second respondent on the 01 November 2022. Mr. Nyathela submitted that because the Applicant takes issue with the first recruitment process, therefore the matter was out of time. Mr. Nyathela’s submissions are clearly not in line with various case law. It is now trite that parties in promotional disputes should wait until appointment before they can refer a dispute. In my view, although the Applicant took issue with an advertisement that was eventually abandoned, could not lodge a dispute until the appointment was made from the re-advertised post for which he was not shortlisted. The point in limine is accordingly dismissed.

ANALYSIS OF EVIDENCE AND ARGUMENT
12. The parties agreed that the issue for determination before me was whether the Respondent committed an unfair labour practice relating to promotion by not appointing the Applicant at the conclusion of the initial recruitment process, and on the contrary, opting to re-advertise the post with different curriculum requirements. The Applicant takes issue with what they refer as the decision not to appoint.
13. Mr. Nyathela submitted that the Respondent did not appoint from the first recruitment process, from which the Applicant was shortlisted, interviewed and ranked number two by the interview committee. The Applicant conceded to this fact, and it is therefore common cause between the parties. Further, it is also common cause between the parties that the Respondent re-advertised the same position with different curriculum vitae. The Applicant applied but was not shortlisted.
14. It is curious that the Applicant, having applied for the re-advertised position and not making a shortlist, turns around and challenge a process that he himself considered to have been abandoned, and/or alternatively not proceeded with by the employer.
15. It is not for me to speculate on the reasons why the employer opted to re-advertise, however, there was no evidence before me to substantiate a claim that there was any conduct of the employer that would have constituted an unfair labour practice in respect of promotion against the Applicant. The Applicant aimed his case on a process that was either incomplete or abandoned as no appointment was made, and left a process where he could have challenged the employer for not shortlisting him if he was of the view that he was suitably qualified.
16. Mr. Monyai for the Applicant referred me to section 6(3) of the Employment of Educators Act which reads as follows:
“(b)The Head of department may only decline the recommendation of the governing body of the public school or the council of the further education and training institution, if-
(i) any procedure collectively agreed upon or determined by the Minister for the appointment, promotion or transfer has not been followed
(ii)the candidate does not comply with any requirement collectively agreed upon or determined by the Minister for the appointment, promotion or transfer
(iii) the candidate is not registered, or does not qualify for registration, as an educator with the South African Council for Educators
(iv) sufficient proof exists that the recommendation of the said governing body or council, as the case may be, was based on undue influence
(v) the recommendation of the said governing body or council, as the case may be, did not have regard to the democratic values and principles referred to in section 7(1) of the Act
(c) If the Head of Department declines a recommendation in terms of paragraph (b), the governing body or council concerned shall make another recommendation in accordance with paragraph (a), for consideration by the Head of Department”.
17. In the present case, in my view, the provisions of section 6 (3)(b) are not applicable in that there is no decision or any discretion of the Head of Department to speak off. There are no recorded reasons as to why the Respondent opted to re-advertise. Further, the fact that the Applicant participated in the subsequent recruitment phase in that he applied and was not shortlisted, gives credence to the fact that the Respondent’s initial process was either incomplete or abandoned. The Applicant cannot therefore challenge a decision that does not exist.
18. I have further considered written submissions from the Applicant, and I find nothing useful to persuade me that a case for unfair labour practice in respect of promotion was made.
19. In the circumstances I find that the Respondent did not commit an unfair labour practice against the Applicant.
20. The LAC in the Ncane v Lyster NO and Others held that an arbitrator may only interfere with an employer’s substantive decision not to promote a person where the decision is irrational, grossly unreasonable or mala fides. There was no shred of evidence advanced on behalf of the Applicant to suggest that the Respondent’s decision to re-advertise was mala fide, irrational or unreasonable.
21. Further, clause 58 of the CA provides that “only where an employee has proved that he/she was the best of all candidates who applied for the post and that he/she would therefore have been appointed, had it not been for unfair conduct of the employer, will there be substantive unfairness and may the arbitrator grant substantive relief”. The Applicant did not lead any evidence evincing he was the best among the candidates interviewed in the initial advert of Head of Department for Matime II Secondary School, nor that he was not shortlisted when he was the best of all shortlisted candidates in the re-advertised post. This I dare mention, notwithstanding that the Applicant made it abundantly clear that he challenges only the first recruitment process that was never concluded by the Respondent. This matter falls to be dismissed.

AWARD


22. The case of the applicant, ME Maja, is hereby dismissed.

Thapelo Mathekga
ELRC Panellist