ELRC635-22/23NW

Panellist: Themba Manganyi
Case No.: ELRC635-22/23NW
Date of Hearing: 03 July 2023
Date of Arguments: 07 July 2023
Date of Award: 20 July 2023

In the Arbitration Hearing between

MR LEON FREDDY TEMANIE APPLICANT

And

DEPARTMENT OF EDUCATION – NORTH WEST 1ST RESPONDENT

And

MRS L.P. KOK 2ND RESPONDENT

Applicant’s Representative:
Self

1st Respondent’s Representative:
Mr Martin Keetile
2nd Respondent’s Representative:
Self

Details of hearing and representation

1. The Applicant, Mr Leon Freddy Temanie “(Temanie”), referred an alleged unfair labour practice dispute in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 (“the LRA”), as amended, related to promotion to the Education Labour Relations Council (“the Council”).

2. The arbitration proceedings were scheduled to be heard on 03 and 04 July 2023 at Dr Kenneth Kaunda District Office, no 8 Corner Oliver Tambo and Emberts Street, Teemane Building in Potchefstroom. However, the matter was finalized on the first day (03/07/2023). Temanie represented himself in these proceedings and Mr Martin Keetile (“Keetile”) represented the 1st Respondent, the Department of Education – North West and Ms L.P. Kok (“Kok”), the 2nd Respondent, represented herself.

3. The parties submitted bundles of documents and the Applicant’s bundle was marked as Bundle A, the 1st Respondent’s as Bundle R and the 2nd Respondent submitted the letter she authored on 22 August 2022 to the Circuit Manager (Ms R. Sebolai) into the record. The contents of the bundles were not disputed. At the end of the proceedings parties agreed to submit their heads of arguments in writing on or before 07 July 2023 and they duly complied. The proceedings were digitally recorded and I also took handwritten notes. The recordings thereof were retained by the Council.

Issue/s to be decided

4. I must determine whether the 1st Respondent subjected the Applicant to an unfair labour practice as contemplated in section 186(2)(a) of the LRA by not shortlisting him for the advertised position.

5. In the event that I find in the Applicant’s favour, I would be required to determine the appropriate relief.

Preliminary issue/s

6. During the pre-arbitration meeting held on 31 May 2023 at Matlosana Area Office, Alabama, Klerksdorp, Temanie indicated that he would be calling four (4) witnesses, including himself. He had stated that he would have to make applications for subpoenas for two (2) of his witnesses. However, he did not serve the approved subpoenas to the witnesses in accordance with clause 51.1 of the Council’s Constitution. Thus, the witnesses were not in attendance. Even the witness that was to attend these proceedings willingly was not in attendance. Temanie sought to have this matter postponed on the basis of the unavailability if his witnesses. I pronounced an oral ruling to this request. In brief, the reason for not granting the postponement was that I explained the process on how to apply and serve the subpoenas at length during the pre-arbitration meeting. Therefore, I did not find that there were compelling reasons to consider this request favourably.

7. The 1st Respondent indicated that it would be calling three (3) witnesses. However, it only called one witness. Kok was represented by Mr T.F. Motaung, a union official, during the pre-arbitration meeting and it was indicated that she would not call any witnesses. During these proceedings, she appeared on her own unrepresented and she indicated that she was comfortable to proceed unrepresented.

Background

8. Temanie is a PL1 Educator rendering his services at Promosa Secondary School (“Promosa”). The 1st Respondent advertised the position of Head of Department (PL2) – Languages on or about July 2022 for Promosa. Temanie was one of the candidates that applied for this position.

9. The shortlisting process unfolded. However, Temanie was not shortlisted. He successfully challenged the shortlisting process that excluded him based on the composition of the panel that was contrary to the Circular. An Independent Panel was configured and the second shortlisting process unfolded. Still, Temanie was not shortlisted to be interviewed for the position. Hence, this dispute.

10. The crux of Temanie’s dispute was that he met the minimum requirements to be afforded an opportunity to contest for the position. Kok was shortlisted on the two (2) sifting rounds and she was ultimately appointed as the successful candidate for the position.

Survey of evidence and arguments

11. It is trite that in an alleged unfair labour practice dispute, the Applicant bears the onus of proof and thus, a duty to begin in these proceedings . What follows hereunder, is summary of the evidence of the witnesses and not a verbatim account of their testimony. The witnesses testified under oath.

The Applicant’s case

12. Temanie testified that he has been in the service of the 1st Respondent for twenty nine (29) years as a PL1 Educator and that he acted in the position of the Head of Department (“HOD”) between 2015 and 2017. He stated that he applied for the advertised position of the HOD PL2 Languages because he met the minimum requirements . He stated that the Circular prescribed that the criteria that must be used must be fair, non-discriminatory and in keeping with the Constitution of the country and that the panel had to formulate an additional criteria to bring the number of candidates within five (5). He confirmed that he received the minutes of the shortlisting panel stating the reasons why was he not shortlisted during this proceedings. He stated that the minimum requirements for the position were a Grade 12 certificate, a recognised three-year qualification (REQV 13) which must include appropriate training as an educator and a minimum of three (3) years of experience. He stated that he has a REQV 17.

13. Under cross-examination, he stated that the additional criteria were unfair because he has a higher diploma, a Bachelor of Education degree and Masters in Philosophy degree. It was put to him that his qualification was a primary school qualification and that Promosa was a secondary school. His response was that he has a qualification that was above REQV 13. He confirmed that it happened all the times that whenever there was a vacancy at a secondary school and there was a suitably qualified person at a primary school, that person could be appointed. He confirmed that there was a shortage of Afrikaans teachers at Promosa. However, his assertion was not corroborated. He disagreed that he was not shortlisted based on the additional criteria because he was teaching Afrikaans at FET.

14. He confirmed that it was his testimony that Kok was favoured to be appointed. However, he confirmed that Kok was suitably qualified for the position. He confirmed that he saw Kok’s letter for the first time in these proceedings and he further confirmed that Mr I. Kleinhaans (“Kleinhaans”) – the Principal - did not score candidates in the interviews. However, he was not sure what influence would Kleinhaans have in the entire process. He conceded that Kok and Kleinhaans were at loggerheads. He was referred to page 2 point 10 of Bundle A where he had stated that according to Kok, Kleinhaans promised her that he would recommend her for the position and he would make sure of that. In his response, he stated that this was according to Kok’s letter and that Kleinhaans once said in a meeting at Level 5 that he would recommend Kok for the position. He stated that Kok gave Ms R. Bosman (one of the panellists) a bouquet of flowers during Grade 12 examinations to thank her for giving her the opportunity to be shortlisted. When it was put to him that Kok did not present Bosman with a bouquet of flowers, he stated that he wrote what he saw, but he could be wrong. He confirmed that the duty of the school governing bdy (SGB) members during the recruitment process was to recommend.

The 1st Respondent’s case

15. Mr K.A. Seobi (“Seobi”) stated that he was the Acting FET Coordinator during the recruitment process and he was the chairperson for the panel. He stated that the panel came up with the criteria before the envelope containing the applications of candidates was opened. The panel decided that they would have to come up with additional criteria if there were too many candidates who met the minimum criteria to enable them to eliminate candidates to be below five (5) candidates. He testified that Temanie did not have the qualification for teaching Grade 10 to 12 and that his qualification was a primary school qualification (page 21 of A). He stated that Temanie was eliminated based on the criteria.

16. Under cross-examination, he stated that Temanie was not shortlisted because of his qualification. He averred that the panel decided to shortlist only three (3) candidates because it was only three candidates that met the requirements of the additional criteria. He stated that the panel required a qualification in FET and that the qualification had be subject-related.

The 2nd Respondent’s case

17. Kok stated that her letter was written prior to the first shortlisting process and that if Temanie had seen the letter, he would not have raised it in his arguments.

Closing arguments

18. The parties’ closing arguments are a matter of record and as such, I will not regurgitate them herein. However, I will make reference to them where necessary.

Analysis of evidence and argument

19. Section 138(7) of the LRA requires a commissioner to issue an award with his brief reasons. With this in mind, I will only restate the evidence and submissions that I find critical to assist me in arriving at a reasonable determination. However, I have considered all the evidence and the written heads of arguments.

20. Section 185(b) of the LRA prescribes that every employee has a right not to be subjected to unfair labour practice. Section 186(2)(a) of the LRA defines unfair labour practice as any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee. It is trite that a promotion for the purposes of section 186(2)(a) involves a move by an existing employee to a higher rank or position which carries greater status, responsibility and authority.

21. The gravamen of Temanie’s dispute is the exclusion from being shortlisted for the HOD PL2 Languages – Afrikaans by the Shortlisting Panel. It is not in dispute that Temanie met the minimum requirements as contained on page 6 par 4 of Bundle A. It is on record that Temanie’s application made it through the sifting process which was done by the District Office. It is common cause that Temanie was excluded from the process at the shortlisting stage. It was Seobi’s testimony that the shortlisting panel decided to formulate an additional criteria to limit the number of candidates that made it through the sifting process. The additional criteria were formulated even before the envelope was opened. It therefore cannot be said that the panel had any ulterior motive to exclude a specific candidate when it formulated the criteria.

22. According to the shortlisting minutes on page 2 of Bundle R, the reasons that the panel relied on to disqualify Temanie were that he had a qualification in Senior Primary and that the post that was advertised was in a Secondary School. Seobi’s evidence that Temanie’s subject advisor (Bosman), who was part of the panel, did not object to the exclusion of Temanie based on his qualification was not disputed. It was also not disputed that relevant employee organisations observed the shortlisting and the interview processes. It is my considered view that had there been any unfairness in the criteria that the panel had decided on, the employee organisations would have disputed.

23. Temanie challenged the composition of the shortlisting and interview panel because it was not made up in accordance with the Circular. In terms of the Circular, the SGB must establish the Short-listing Committee to short-list applicants for interviews. If not possible a District official (Sub-District Manager) should assist the SGB. It is common cause that both Temanie and Kok had concerns with some of the members of the SGB being part of the panel. Temanie, in his closing arguments, confirmed that the initial panel was replaced by what he called an Independent Panel. He took an issue with the composition of this panel. I must pause and mention that Temanie in his “truncated background” stated Sebolai came up with her own panel and reduced the SGB members into observers. In my view, Sebolai acted fairly by establishing a panel that would be independent to avoid the perception of bias that was already raised by Temanie and Kok. I therefore find that there was nothing unjust and unfair about the composition of the panel as it was in accordance with the provision of the Circular.

24. During cross-examination, Temanie conceded that Kok was suitably qualified for the position. However, in his closing arguments he is singing a different tune altogether. He argued that Kok’s B.Ed degree had a one year diploma and a three year degree according the Respondent’s witnesses. Therefore, she did not meet the minimum requirements and she should not have been considered. He stated that Kok did not have leadership skills and stated further that Kok did not have the required number of years of managerial experience. It is trite that evidence must be presented during proceedings in order to afford the other party an opportunity to test that evidence. This information was not presented during the proceedings. Thus, I cannot consider it as it is brought in through the backdoor.

25. The allegation that Kok bought Bosman a bouquet of flowers to thank her for affording her an opportunity to be shortlisted was not corroborated. In fact, Temanie conceded during cross-examination that he could be wrong on this aspect. I therefore find this allegation as baseless and without merit. The allegation that Kleinhaans had promised Kok that he would recommend her for the position is vehemently refuted by Kok’s letter that was written before the shortlisting processes. Kok in her letter indicated that she did not have confidence in some of the members of interview pane, including Kleinhaans. I find it absurd for Temanie to make such unfounded statements in a quest to further his dispute.

26. Lastly, in Ncane v R Lyster NO Honourable Landman in the Labour Appeal Court outlined an approach to be taken by the arbitrator when arbitrating disputes concerning unfair labour practice as defined in section 186(2)(a) and stated as follows at par. 25:

‘When it comes to evaluating the suitability of a candidate for promotion, good labour relations expect an employer to act fairly but it also acknowledges that this is not a mechanical process and that 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 and an arbitrator may only interfere where the decision is irrational, grossly unreasonable or mala fides,’

27. Having considered the evidence before me, I do not find any mala fides in the conduct of the 1st Respondent. Consequently, I find that Temanie was not subjected to any unfair labour practice as contemplated in section 186(2)(a) of the LRA.

Award

I make the following award:

28. Mr Leon Freddie Temanie’s claim for unfair labour practice is dismissed.

Arbitrator: Themba Manganyi