ELRC472-22/23GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT THE SOUTHWEST GAUTENG TVET COLLEGE (SOWETO)

Case No ELRC472-22/23GP


In the matter between

PSA obo LULAMILE RANTINYANE RAMPORA Applicant

and

DEPARTMENT OF EDUCATION: GAUTENG 1st Respondent

2nd Respondent
Mr P HLABISA

ARBITRATOR: Monde Boyce

HEARD: 23 November 2022, 26 & 27 January 2023, 27 February
2023 and 22 March 2023

CLOSING ARGUMENTS: 03 April 2023

DATE OF AWARD: 17 April 2023


AWARD


PARTICULARS OF PROCEEDINGS AND REPRESENTATION:

[1] This Council set the matter down for arbitration on 23 November 2022 and scheduled it to proceed virtually. Both parties made an appearance with Mr Sefatsa, a trade union official, appearing for the applicant while Mr Moeketsane appeared for the 1st respondent. The matter was however adjourned on the above date for purposes of joinder of the 2nd respondent who had neither been joined nor received the notice of set down at the time the initial notice was served. The matter was again heard virtually on 26 and 27 January 2023, but while arbitration proceeded on the above dates, there connectivity challenges that caused for another adjournment. It was then agreed, as per the request by the parties and my indulgence, that the matter proceed face-to-face to prevent another possibly adjournment. The date of 23 February 2023 was agreed to as the date that arbitration should convene. Both parties duly attended the process on the above-mentioned date. However, another challenge arose, which was that of the respondent’s last witness who was present at the venue and about to give evidence, falling sick. The matter was then postponed to 22 March 2023 and was finalized on this date. On all the instances that the matter sat face-to-face, the Southwestern Gauteng TVET College in Soweto was used as the venue.

[2] There was no need for an interpreter as all parties confirmed being conversant with and happy to participate in the proceedings in English. A common bundle was used. The proceedings were digitally recorded, and typed notes were taken.

[3] On conclusion of the process, parties requested to make written closing arguments, a request I duly granted on condition that such written submissions were submitted by no later than 28 April 2023. However, on 28 April 2023, the applicant made a request for extension of the submission date by a further fourteen (14) days. I however granted parties an extension only until 03 April 2023 afterwhich I would proceed to render my award. Both parties duly filed their written closing arguments on 03 April 2023.

THE ISSUE TO BE DECIDED:

[4] I am required to decide whether the respondent’s decision not to appoint the applicant to a position of Lecturer: Mathematical Literacy Post Level 2 and the appointment of the 2nd respondent was unfair and thus constituted unfair labour practice as envisaged by Section 186 (2) (a) of the Labour Relations Act 66, 1995 as amended (LRA).

THE BACKGROUND TO THE DISPUTE:

[5] The applicant, Ranthenyane Ternard Rampora, is currently employed as Post Level 1 Lecturer and earns a salary of R318, 597.00 per annum. He is currently based at the Dobsonville Campus and had at some point acted as Post Level 2 Lecturer. He applied for the position of Post Level 2 Lecturer: Mathematical Literacy along with other candidates who vied for the position. He was shortlisted and invited to an interview. He and two other candidates, being the 2nd respondent and another candidate, were successful in the interview and were three candidates who scored highest and from which the panel had to select one. The 2nd respondent was appointed to the position. Unhappy with the respondent’s decision to appoint the 2nd respondent, the applicant referred an unfair labour practice dispute to the Council for conciliation. The dispute was not resolved at conciliation, and the applicant referred the dispute for arbitration. He seeks setting aside of the 2nd respondent’s appointment or protected promotion as relief.

SURVEY OF EVIDENCE AND ARGUMENT:

The Applicant’s Evidence

[6] The applicant, testified that he started working for the college in February 2013 and was appointed to teach Mathematical Literacy Post Level 1. His highest qualification, besides his Bachelor of Education degree, is a Post Graduate Diploma in Management (PGM). He was appointed as an acting Senior Lecturer for Mathematical Literacy for twenty-four months. A post for Post Level 2 Senior Lecturer was advertised and the closing date was 14 March 2022. The requirements for the position were a three years relevant teachers’ qualification, three years relevant experience, registration with the South African Council of Educators (SACE) and a valid drivers’ license as an added advantage. He submitted his application on time.

[7] An interview was arranged for 20 July 2022, and he was invited to attend the interview. On arrival at the interview venue, the trade union representatives he found, besides the three panel members, were Miss Mdlalose from the trade union NEHAWU and a representative from SADTU. Nobody from the Human Resources (HR) department attended except for a gentleman who was an intern. There was no one from HR to observe the process. After going through the interview, he did not sign any other documents except the attendance register for the day. The three panel members were Mrs. Mmereko, the Acting Campus Manager, Miss Mabunda who is the acting Head of Department and Mr Tshweo who was the acting HOD for NCV.

[8] When the appointment was made, the 2nd respondent was introduced by the acting Campus Manager during the morning briefing, and he had asked how the 2nd respondent was appointed in view of a dispute he had lodged challenging his non-appointment. The acting Campus Manager told him not to involve her in things that did not involve her. He was aggrieved by his non-appointment and the appointment of the 2nd respondent because the 2nd respondent did not come from the sector and was not holding a permanent post where he came from, and he believed that they were being given someone who was least experienced to manage them. They ended up being the ones who supported the 2nd respondent as opposed to him (2nd respondent) being the one supporting them.

[9] Mr Hlabisa, the 2nd respondent, is not experienced and is not in a position to carry out some of the functions set out in the advertisement. Mr Hlabisa also does not understand the policies and had shared irrelevant policies and some of the policies he shared were from the Department of Basic Education and were not relevant to them. Mr Hlabisa even had instances where he asked the lecturers about some things he needed to moderate.

[10] He lodged a grievance on 01 September 2022. The response he received from Mr Thando Khuse was that the grievance was received and that the respondent would respond in due course. But he never received any feedback. The appointment letter for the panel was signed on 30 August 2022 and he was interviewed on 20 July 2022. He does not believe that the panel was properly constituted because the appointment of the panel was done in August 2022 while the interview was conducted in July 2022. There also is a requirement that each applicant must complete an integrity check form, and he did not sign such a form. Page 54 of the respondent’s bundle contains an integrity check form that was signed by the 2nd respondent which the 2nd respondent signed on 20 July 2022 on the same day of the interviews. Page 62 of the respondent’s bundle contains the curriculum vitae (CV) of the 2nd respondent, and the 2nd respondent stated in his CV that he was an SGB member, but he could not have been an SGB member while he was a full-time student at the Northwest University.

[11] The 2nd respondent also inflated his years of experience and included the years he was studying full-time at the Northwest University as part of his working experience. Page 56 of the respondent’s bundle contains minutes of the interview and includes a list of seven people who were present at the interview. But some individuals including the person who was listed as a scribe was not present in the interview he attended. The minutes of the interview were signed on 01 September 2022 which was after the interviews had already taken place. He thus disputes the contents of the minutes. It is indicated on the interview panel minutes contained on page 91 of the respondent’s bundle that incomplete Z83 form should be disqualified. Page 59 of the respondent’s bundle contains a Z83 form for the 2nd respondent. This form was not fully completed because there were columns where it was highlighted that the 2nd respondent did not indicate “Yes” or “No”. Page 92 of the respondent’s bundle shows that the minutes were not signed and may thus not be authentic. The Z83 form was not fully completed, and the 2nd respondent should not have gone past the shortlisting stage.

The Respondent’s Evidence

[12] Mr Lenny Paul Hlabisa, who is the incumbent in the position challenged by the applicant, was called as the respondent’s 1st witness. He testified that he currently he is currently employed as a Senior Lecturer for Mathematical Literacy at Post Level 2. He became aware of the existence of the post when it was advertised. There were a number of advertisements and he had applied for three different posts. The current position he holds is the position he applied for on the Z83 form. Before applying for this position, he did not know anyone at the South West Gauteng TVET College. The Interview Integrity Check form is the form he received at the reception on the date of the interview. On arrival at the interview venue, he was handed the form by the receptionist, and he had handed over the form to the chairperson of the interviewing panel.

[13] Where the Z83 form on page 59 of the respondent’s bundle asked if he had any business interests with the state, he had answered “No”. On the follow up question on whether he would immediately relinquish such business interests, he did not give an answer because this was a follow up question to the question, he had already answered about having business interests with the state to which he had answered “No”. He complied the curriculum vitae (CV) that he submitted along with his application. For the period of 2014 to 2020, he had worked at Lekoa Shandu Secondary School where he taught Mathematical Literacy. He resigned in 2020 and did not work for the period of 2020. He then got a three months’ contract at a school in Klerksdorp from the month of March until the end of May 2021. Page 17 of the respondent’s bundle contains minimum requirements for the position he applied for. He had the three years relevant qualification and the three years relevant experience. He also had a valid drivers’ license and is registered with SACE.

[14] Page 99 of the respondent’s bundle contains the GEPF statement which bear details of his contributions. The GEPF started deducting his pension contributions from 2014 and, as at the date of 14 February 2014, he was in active employment for 06 months. As far as he is concerned, there is no difference between Mathematical Literacy at a secondary school and at the TVET college. He got his SACE certificate in 2015 which he handed over the relevant information after he qualified. He possesses a qualification of bachelor’s degree in Senior and Further Education and Training Phase which he obtained on 04 May 2014 from the University of the Northwest. While the applicant stated that he falsified his CV by stating that he qualified in 2014 for the above qualification, he in fact completed his qualification in 2014 but was handed the certificate in 2015. Page 69 and 69 contains his academic record which stated that he completed his qualification on 12 December 2014 and that the certificate was to be handed over on 05 May 2015.

[15] The second witness called was Miss Alucia Mabunda who testified that she is currently employed in the Dobsonville Campus as a Senior Education Specialist and Head of Department (HOD). She was part of the panel that interviewed candidates for the Post Level 2 post. They were appointed to the panel by the College’s Human Resources department. She knows the 2nd respondent and knows him as a Maths Senior Lecturer and knows the applicant as a lecturer at the Dobsonville campus. They made a recommendations as a panel for appointment of the 2nd respondent as a senior lecturer for Maths Literacy.

[16] About five candidates had been interviewed after all the candidates had been given an opportunity to present themselves and answer questions to the panel. The panel was satisfied that the 2nd respondent was fit and a proper person for appointment to the position. All the candidates had performed very well but Mr Hlabisa did exceptionally well in particular to questions asked and even better than candidates who had TVET college background. She did not know the 2nd respondent before the interview and only met him for the first time during the interview. In relation to fundamental subjects, being Mathematics and English, there was no difference. The subjects are covered in Grade 10, 11 and 12. They found that the 2nd respondent had engaged with these grades.

[17] Page 16 of the respondent’s bundle states Mathematics Literacy Senior Lecturer as the post that was advertised that they conducted interviews for. The 2nd respondent, according to information before them, met all the minimum requirements as set out on page 17 of the respondent’s bundle. The Z83 form contained on page 59 of the respondent’s bundle was one of the documents they went through. The form on page 59 contains a handwritten note she made where she stated: “incomplete form, did not indicate “Yes/No” and declared that the candidate was disqualified. This was however corrected when the other members of the panel pointed out to her that the 2nd respondent did not have to answer the follow up question as he had already given an answer to the previous question.

[18] The respondent called a third witness, Miss Nozipho Cheryl Mereko, who testified that she was an acting Campus Manager at the time the interviews were conducted, and the appointment of the 2nd respondent occurred. Her responsibility then was to lead campus operations and she was also responsible for recruitment at the campus. She was involved in the interviews for the Senior Lecturer: Mathematical Literacy position. The process followed during the interview was that the interviewing panel converged to interview candidates who met all the minimum requirements. The 2nd respondent met all the minimum requirements and had been shortlisted accordingly. She was the chairperson of the interviewing panel, and the applicant was one of the four candidates they interviewed.

[19] Mr Hlabisa was recommended for appointment because he met all the requirements and had performed very well during the interview and the panel was satisfied that he was the best candidate for appointment. She did not know Mr Hlabisa and had never met him before the interview. As the panel they went through the Z83 forms in order to satisfy themselves that all the forms were properly filled. When they initially gleaned Mr Hlabisa’s form, there was a note by one of the panel members that Mr Hlabisa’s form was not completed in full in relation to one of the questions. The question related to whether Mr Hlabisa conducted any business with the government, to which Mr Hlabisa answered no. The question that Mr Hlabisa did not respond to was a follow up to a question he had earlier answered. The panel discussed the issue and concluded that that Mr Hlabisa’s not having answered the follow up question did not disqualify him for consideration for interview.

[20] There is no difference between a person who taught Mathematics at a high school and at a TVET college. Mr Hlabisa had majored in the subject and was also going to be put through the NCV Programme. The applicant was not recommended for the position because he did not meet the highest score for the position during the interview and, had he scored higher, he would have been considered for appointment.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

[21] In this case, the applicant, having complained of unfair conduct on the part of the respondent, bore the onus. In other words, he needed to support the claim he makes and was required to provide as such evidence as would support his claim. A principle asserted by Courts when it comes to promotion disputes is that a candidate who is shortlisted, interviewed and becomes successful in the interview is not automatically entitled to appointment to an advertised position. All it boils down to, after completion of the whole process, is whether the panel, in deciding on a candidate to appoint, acted fairly and applied its mind. If one has regard to three key judgments that deal with this principle, and such being the case of City of Cape Town v SAMWU obo Sylvester and others and that of Medscheme v Goliath the ultimate question becomes that of whether the employer was grossly unreasonable as to lead to an inference of mala fide being drawn.

[22] Apollo Tyres SA (Pty) Ltd v CCMA & Others set out what unfairness entails when the LAC held as follows:

“[53] ... unfairness implies a failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended.

[23] The applicant, having the onus to discharge, needed to demonstrate existence of the above elements, but having heard evidence and arguments, I am not persuaded that he succeeded in so doing. The challenge by the applicant is primarily premised on a number of alleged anomalies he believes rendered the process unfair. I do not deem it necessary to repeat all that he stated as same is contained in the survey of evidence. But amongst the alleged anomalies is the 2nd respondent having not fully competed the Z83 form in that he did not answer one of the questions. But the panel dealt with this issue, deliberated on it and made a decision, and such a decision being that that the 2nd respondent did not answer the follow up question did not render same a reason for his (2nd respondent) disqualification. That one of the panel members, Miss Mabunda, had initially held a view that the 2nd respondent should be disqualified because his form was incomplete, and that she changed the position after deliberations with fellow members of the panel points to robustness of the engagements among the panel members.

[24] Also, among the alleged anomalies the applicant referred to was the 2nd respondent having been given and filled an Interview Integrity Check form. Evidence before me is that the form was given to all the candidates, and if the applicant was not given one, same would not render the process unfair and could not possibly have been intended to favour the 2nd respondent over the applicant. It was the receptionist who gave out the forms and the 2nd respondent had nothing to do with same. If the receptionist did not give him one, that would not be the fault of the 2nd respondent. There were a number of other alleged anomalies pointed out by the applicant, but having carefully considered evidence in its totality, I arrive at a conclusion that none of these alleged anomalies render the appointment of the 2nd respondent unfair. The 2nd respondent met all the minimum requirements, was shortlisted and interviewed along with the applicant and other candidates. In any event, interviews are meant to test the potential of candidates to carry out functions in an advertised position. With interviews it is always a question of “May the best candidate win”. In the present case, the 2nd respondent made an impression on the panel and did very well and scored highest in the interview. The applicant has not demonstrated that, in the absence of all the alleged anomalies he pointed out, he would still have been the best candidate. In any event, the alleged anomalies, in my considered view, do not render the decision by the respondent grossly unreasonable, arbitrary or informed by malicious intentions.

[25] The panel was not shown to have not applied its mind in deciding on the appointment of the 2nd respondent. The applicant also has not proven that, but for the anomalies he alleged, he would still have been the best candidate for appointment. I thus cannot find that the decision by the respondent not to appoint the applicant and that of appointing the 2nd respondent to be unfair as to constitute unfair conduct as alleged.

[26] Important for emphasis is the Industrial Court judgement in Goliath v Medscheme setting out where discretion by management may be interfered with. The Court held that:

“Inevitably, in evaluating various potential candidates for a certain position, the management of an organisation must exercise a discretion and form an impression of those candidates. Unavoidably this process is not a mechanical or a mathematical one where a given result automatically and objectively flows from the available pieces of information. It is quite possible that the assessment made of the candidates and the resultant appointment will not always be the correct one. However, in the absence of gross unreasonableness which leads the court to draw an inference of mala fides, this court should be hesitant to interfere with the exercise of management’s discretion”

[27] This principle was reaffirmed in Aries v CCMA and Others states as follows:

“Taking this proposition further and applying what our courts have said in this regard to the employment field, I am of the view that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner.”

[28] As stated in the preceding paragraphs, even if the applicant were to prove, for an example, the actual appointment letter was issued after the interviews, the inquiry, if one has regard to the above cited case, should not stop there. A question would perhaps have to be posed as to whether same rendered the decision of the employer grossly unreasonable or unfair. Differently put, would the applicant still have been appointed if the appointment letter was issued after the interviews? The answer is NO because irrespective of the date of issuance of the appointment letter, the panel had been constituted via an email request by the Human Resources department. And if one has regard to the evidence by the witnesses who were members of the panel, it is highly doubtful that the applicant would have been preferred over the 2nd respondent. The applicant did not, in any event, point to the prejudice he suffered as a consequence.

[29] It is my finding that the applicant has failed to discharge the onus and that his claim accordingly falls to be dismissed.

[30] I therefore, in the circumstances, make the following award:


AWARD

[31] The respondent’s failure to appoint the applicant to the position of Senior Lecturer: Mathematical Literacy did not constitute unfair labour practice as claimed.

[32] The application is accordingly dismissed, and the Council is directed to close the file.


Monde Boyce
Panelist: ELRC