ELRC604-22/23NW

Panelist: THABE PHALANE
Case No.: ELRC 604-22/23 NW
Date of Award: 05 JUNE 2023

In the Arbitrator between:

MOTSATSI, Julia Thale
(Employee / Applicant)
and
Department of Education-Northwest
(Employer / 1st Respondent)

Mr Serame Sedio
(2nd Respondent)

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

Employer’s representative: Ms Boitumelo Phuswane
Telephone:
Telefax:
Email:

DETAILS OF HEARING AND REPRESENTATION.
1.1 The following is an Arbitration Award from an arbitration hearing that took place on 10 May 2023, 19 June 2023 at the Potchefstroom Department of Education Dr Kenneth Kaunda District Offices, situated at cnr Oliver Tambo and Emberts Streets, Potchefstroom.
1.2 The Applicant attended and was unrepresented, whilst the Respondents were represented by Ms Boitumelo Phuswane, the Respondents official. The 2nd Respondent was also in attendance.
1.3 The proceedings were digitally recorded and the parties entered into a pre-arbitration minute and thereafter the Applicant testified and was cross examined. She submitted a bundle of documents marked bundle ‘A’.
1.4 The Respondents decided not to testify orally and opted to close and then submit written arguments in support of their case.
1.5 The parties agreed to submit written arguments on or before 03 July 2023. The Applicant submitted on 27 June 2023 and the Respondent submitted on 03 July 2023.
ISSUE TO BE DECIDED
I am required to determine whether the Respondent committed an unfair labour practice against the Applicant by not appointing her to a promotional post, and consequent thereon, to issue appropriate relief.
BACKGROUND TO THE DISPUTE
1.6 The Applicant is a Post level 02–Departmental Head-Educator and started from 01 July 1996. She applied for post KK /PRINC/ 0901- Principal, post level 04, at Boikhutsong Village Primary School–(Brydegomskraal).
1.7 She was selected, interviewed and was one of the 3 recommended applicants but she was not appointed. The 2nd Respondent was appointed 01 October 2022.

SURVEY OF EVIDENCE AND ARGUMENT

APPLICANT’S EVIDENCE AND ARGUMENTS

Ms Motsatsi, Julia Thale.
1.8 The Applicant submitted that there were 3 candidates interviewed, one female and two males. She was recommended position 2 and the 2nd Respondent was position 1.

1.9 She submitted that she should have been appointed had the objectives and principles of the North West Affirmative Action policy been followed. The Employment Equity Plan for the period 01st April 2021 to 31 March 2026 has, as year 2 objectives, the achievement of 60% employment to all advertised posts in order to achieve 50% overall target for women in SMS and Principal-ship posts in the year 2022.

1.10 It therefore requires that Affirmative action measures for designated groups, (namely Blacks which include Africans, Coloured and Indians), women and disabled groups, must guide the filling of posts.

1.11 The Applicant submitted that she is not undermining the recruitment process or alleging that she was the best candidate but that the panel did not make an effort to comply with the equity and affirmative action plan.

1.12 All 3 candidates recommended for appointment eligible to be appointed however appointments must be connected to the objectives of the Department.
Under cross examination

1.13 The Applicant conceded that she was recommended second.

1.14 She again conceded that final selection sheet reads that if the order of preference of Selection Committee differs from column 2 (percentage selection score) reasons, like adherence to employment equity targets, must be provided. In this case there was no difference in the order of preference of selection committee scores.

1.15 She reiterated that she is not sure that the people who made decisions were aware of the equity policy as they did not consider it.

1.16 The Applicant however agreed that all the recommended candidates were covered by the affirmative action plan members of the designated groups as they are all Black.

1.17 There is no ranking or preference of the 3 categories of designated groups. She insisted however that she should be appointed as a woman in the top 3 candidates.

1.18 The plan is for five years and aims to achieve 50% overall target for women in SMS and principal-ship posts in the outer year 2026. The Applicant agreed that the outer year cannot be 2022 as stated in the policy and it must be read as a typing error and the outer year is actually 2026 and not 2022.

1.19 The Applicant also admitted that the 2nd Respondent was a better candidate as he had more qualifications and more years of experience as a Manager.
RESPONDENT’S EVIDENCE AND ARGUMENTS

1.20 The 1stRespondent denied that the affirmative action and equity plans were not considered.

1.21 The 1st Respondent also reiterated that the Applicant was not the best candidate.

1.22 The Applicant failed to prove that there was an unfair labour practice and that it was unfair.

1.23 Designated groups mean Black People, women, and people with disabilities.

1.24 The 2nd Respondent falls within a designated group and is also eligible to be promoted in line with affirmative action measures.

1.25 Nowhere in the policy does it state that a candidate who falls within two categories of affirmative action must be appointed.

1.26 The Applicant conceded that where the plan reads 2022 it must be read to be 2026 (outer year). There is no reason why it must be read and limited to mean that the Applicant must be appointed in year 2022 as the plan has an outer year.

1.27 The Applicant wants to be appointed to the post. For this remedy to be considered she must prove that she was the best candidate. The Applicant conceded during cross examination that the 2nd Respondent has overall better qualifications, teaching and managerial experience than her.

1.28 On the scoring sheets of the candidates, the order of preference of the scores are the same, hence there was no need to provide reasons why there is a difference.

1.29 Mere unhappiness or a perception of unfairness does not establish unfair conduct. In the absence of gross unreasonableness or bad faith, or the appointment is seriously flawed, the exercise of a decision to appoint must not be interfered with.

ANALYSIS OF EVIDENCE AND SUBMISSIONS
1.30 The Applicant presented oral evidence as well as documentary evidence and arguments which I have considered when arriving at these findings. The Respondent cross examined the Applicant and submitted written arguments.

1.31 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.

1.32 In this matter there is an allegation that the Panel failed to consider the equity plan of the 1st Respondent by not appointing a female candidate who was recommended top two. Conversely the Applicant submits that the 1st Respondent should have appointed her as a female because she was appointable.

1.33 The Applicant was afforded an opportunity to compete and she does not raise any procedural flaws in the process. 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 applied.

1.34 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.

1.35 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.

1.36 The Applicant alleges that the 2nd Respondent applied the policy. She is however unable to demonstrate this fact as the promotion records/documents have been discovered and they show that the 2nd Respondent was the best candidate. The Applicant has herself admitted that the 2nd Respondent was a better candidate and more experienced.

1.37 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.

1.38 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.

1.39 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.

1.40 The Applicants argument is that in the final analysis the Respondent should have appointed her as a designated group and a female.

1.41 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.

1.42 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.

1.43 This is where the Applicant’s argument falls short of convincing. The first issue is that she was not the best candidate. The second is that the 1st Respondent appointed the best candidate who is also a member of the designated groups that must be affirmed in terms of the affirmative action plan.

1.44 The Applicant wanted to be appointed because she fell in 2 categories of designated groups however the policy or affirmative action plan does not place a rank or hierarchy in terms of who must first be appointed but provides a start and end date of the policy implementation.

1.45 The Applicant still has an opportunity to contest for SMS or Principal-ship positions as the period of implementation ends in 2026.

1.46 It is my finding based on the above that the Respondent has not 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.
1.47 The 1st Respondent, the Department of Education-North West, has not committed an unfair labour practise by failing to promote the Applicant, Julia Thale Motsatsi, to the post KK /PRINC/ 0901- Principal, post level 04, at Boikhutsong Village Primary School–(Brydegomskraal).

1.48 The referral made by the Applicant is accordingly dismissed

                       Commissioner: Thabe Phalane