ELRC134-21/22 NW

Panellist: THABE PHALANE
Case No.: ELRC 134-21/22 NW
Date of Award: 12 MAY 2023

In the Arbitrator between:

Michael Nkesi Masepe
(Employee / Applicant)

and

Department of Education-Northwest 1st Respondent
Ms P Moethloa 2nd Respondent

(Employer / Respondent)

Employee/ representative: In person/unrepresented
Telephone:
Telefax:
Email:

Employer’s representative: Absent/unrepresented
Telephone:
Telefax:
Email:

DETAILS OF HEARING AND REPRESENTATION.
1.1 The following is a Default Arbitration Award from an arbitration hearing that took place on 04 May 2023, at the Rustenburg Department of Education Bojanala District Offices, situated at no 102 Klopper Street, Rustenburg.
1.2 The Applicant attended and was unrepresented, whilst the Respondents did not attend or were unrepresented.
1.3 The 1st Respondent had earlier applied for a postponement citing medical reasons and submitted a medical certificate however Council declined the application for postponement on 2023 and directed that the matter will proceed as scheduled.
1.4 There was no representative present and the Officials at the District Office said a higher level Official will contact the Arbitrator but after waiting for an hour I decided to proceed with the arbitration in default.
1.5 The proceedings were digitally recorded and the Applicant testified under oath and had earlier submitted his bundle of documents electronically to Council.
ISSUE TO BE DECIDED
I am required to determine whether the Respondent committed an unfair labour practice against the Applicant by not appointing him to a promotional post, and consequent thereon, to issue an appropriate relief.

BACKGROUND TO THE DISPUTE
1.6 The Applicant is a post level 01 Educator and started from 01 August 2011. He applied for post BP/2020/11/25- Departmental Head, post level 02, at President Mangope Technical High School.
1.7 He was selected, interviewed and was one of the three recommended applicants but he was not appointed. The 2nd Respondent was appointed 11 May 2021.
1.8 The Applicant referred a unfair labour practice dispute and the matter sat on 24 February 2023 where parties entered into a pre-arbitration minute and also agreed to proceed on 04 and 05 May 2023.
1.9 I have indicated that the 1st Respondent applied for a postponement on 25 April 2023 which was declined on 26 April 2023. I therefore proceeded with the default arbitration with only the applicant testifying on record and under oath.
1.10 The pre-arbitration minute is also incorporated herein and supplements the evidence that is before Council.
SURVEY OF EVIDENCE AND ARGUMENT

APPLICANT’S EVIDENCE AND ARGUMENTS

Mr Nichael Nkesi Masepe.
1.11 The Applicant submitted that he was recommended position 2 and the 2nd Respondent was position 1.
1.12 He submitted that the 2nd Respondent never acted as a Manager which is one of the requirements of the post. The Applicant on the other hand was a Manager and HOD/ SMT member.
1.13 He did not reflect on the 2nd Respondent’s qualifications but he submitted that he qualified as well. He made a request for the panelist scoring amongst other documents he subpoenaed but he did not receive the documents and did not receive any response.
1.14 The Applicant submitted that the questions asked were irrelevant to the post. Questions put to candidates must be 60% of the actual work knowledge, and judging from the questions put to him, that was not the case.
1.15 He also alleged that there was favoritism and nepotism as the 2nd Respondent had a close relationship with the Manager of the school, who even calls her ‘mummy’. The 2nd Respondent’s husband is working at the District Offices and the 2nd Respondent’s former husband is a special advisor in English. He believes he was not appointed because of the grievances he lodged as SADTU and SGB member. The Manager even uttered the words ’we seem to forget that we will need her’ and ‘promotions are for people close to her’.
1.16 The Applicant also added that the panelists were inexperienced or did not qualify to be panelists. A panel has to have three members, of which two must be experts. All the scorers were Principals, and one of them was from a Primary School. They were all Managers and not Teachers. An expert must be someone like an HOD or a special Advisor.
1.17 This is the reason they asked a lot of administrative questions and did not test the knowledge and skills in the subjects.
1.18 The Applicant therefore wanted to be appointed to the post as he was the best candidate for the post.
1.19 The 2nd Respondent has subsequently left the post and has been appointed somewhere else. The post is therefore vacant.
1.20 The Applicant also complained about the intimidation and victimization he has received from the school as he was told to ‘go to the ELRC if you can’.
Under cross examination
1.21 There was no cross examination of the Applicant and a party that ignores Council processes does so at its own peril and loses the right to cross examine a witness.
RESPONDENT’S EVIDENCE AND ARGUMENTS
1.22 There was no evidence presented by the first or second Respondents.
ANALYSIS OF EVIDENCE AND SUBMISSIONS
1.23 The Applicant presented evidence as well as documentary evidence which I have considered when arriving at these findings.
1.24 In the matter Arries v CCMA and others (2006) 27 ILJ 2324 (LC) the Court held that there are limited grounds on which a Commissioner, or a Court, may interfere with the discretion which had been exercised by a party competent to exercise that discretion. This may be where and to the extent that it can be demonstrated that the discretion was not properly exercised.
1.25 In this matter there is an allegation that the Respondent has appointed a selection panel that is incompetent and was not acting within the standard protocols of selection.
1.26 The Applicant was afforded an opportunity to compete and he has therefore raised the issue of the selection panel failing to apply its mind to his interview.
1.27 In promotion disputes, the employer is obliged to show that it acted in good faith during the promotion exercise and I am satisfied, in the absence of contrary evidence, that this was not applied.
1.28 In City of Cape Town v SAMWU obo Sylvester and others (2013) 34 ILJ 1156 (LC); [2013] 3BLLR 267 (LC) the Court held, with reference to the Arries case, that the overall test is one of fairness.
1.29 In deciding that the employer acted fairly or not it is relevant to consider the following
(a) whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious considerations on the part of the employer, or
(b) whether the employers decision was arbitrary, or capricious, or unfair, or
(c) whether the employer failed to apply its mind to the promotion of the employee, or
(d) whether the employers decision not to promote was motivated by bad faith, or
(e) whether the decision not to promote was discriminatory, or
(f) whether there are insubstantial reasons for the employers decision not to promote, or
(g) whether the decision not to promote was based on a wrong principle, or
(h) whether the decision not to promote was taken in a biased manner.
1.30 The Applicant alleges that the 2nd Respondent was favoured over him. He is however unable to demonstrate this fact as the promotion records/documents have not been discovered or are missing in relation to the post in dispute.
1.31 The 2nd Respondent was asked to attend the arbitration and she failed to honour the hearing and dispel any allegation of her not being better than the Applicant, who submits that he was more experienced.
1.32 The Respondent on the other hand as the custodian of the records/documents and they failed to provide originals as per the pre-arbitration minute.
1.33 In Noonan v SSSBC and others [2012]33 ILJ 2597 (LAC) it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice.
1.34 If the employee is not denied an opportunity of competing for the post, then the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason.
1.35 As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.
1.36 The 2nd Respondent did not score herself and the party required to justify the scoring is the panel representing the 1st Respondent.
1.37 The Applicants argument is uncontested and in the final analysis the conduct of the Respondent is scrutinised and complained of remains uncontested.
1.38 In Swarts v National Commissioner South African police Services and others (D 915/13) 2015 ZALCD 7 the Court held that when considering an unfair labour practice dispute concerning promotion it is not enough for the candidate to meet the minimum requirements required for the job. The question is whether the candidate meets the inherent requirements for the post.
1.39 In this submission the evidence presented is that the 2nd Respondent had no managerial experience whereas the Applicant had management experience. This fact alone cannot be a guarantee for appointment however it is relevant and necessary to see how the candidates were scored and if there was fairness in that scoring.
1.40 In Sun International Management (Pty) Ltd v CCMA and others (JR 939/14) LC it was held that a finding that a failure to promote was unfair must be a rational one i.e it must be supported by facts.
1.41 It is a determination that can only be made after a holistic assessment of evidence relating to the employees qualifications and/ or suitability for the position in question, against that of other candidates.
1.42 This is where the matter sits as it is impossible to make a holistic assessment of all the evidence relating to the candidates suitability for the position in question. I am only left with the uncontested submissions by the Applicant and his claim that he was the best candidate is unchallenged.
1.43 It is my finding based on the above that the Respondent committed an unfair labour practice by failing to appoint the Applicant to the Post.
In light of the above I deem the following award to competent.

A. AWARD.
1.44 The Respondent committed an unfair labour practise by failing to promote the Applicant to the post BP/2020/11/25- Departmental Head, post level 02, at President Mangope Technical High School.
1.45 The Respondent, Department of Education, North West, is ordered to appoint the Applicant, Michael Nkesi Masepe, to the post of Departmental Head, post level 02, at President Mangope Technical High School, retrospectively from 11 May 2021.
1.46 The Respondent is also ordered to pay the Applicant the salary equivalent to rank of Departmental Head post level 02, retrospectively from 11 May 2021. The difference in salary must be adjusted retrospectively from 11 May 2021.
1.47 The above award must be complied with within 30 days from receipt thereof.

THABE PHALANE