ELRC 13-21/22GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No: ELRC 13-21/22GP

In the matter between

PULENG AGNES THELA Applicant

And

GAUTENG DEPARTMENT OF EDUCATION Respondent

ARBITRATION AWARD

The venue of Arbitration: Gauteng West District/Virtual

Date: 04 August 2023

Parties present:

Arbitrator: Mr C Khazamula

Applicant: Ms A.P. Thela
Applicant’s Representative: Mr T Lehabe 1st & Mr SCS Mopedi

1st Respondent’s Representative: Mr T.M. Shiphamele
2nd Respondent: Ms E. Raphalane
2nd Respondent Representative Mr B. Morolong
DETAILS OF HEARING AND REPRESENTATION

1. The matter was an unfair labour practice dispute in terms of s186 (2) (a) related to benefits of the Labour Relations Act, 66 of 1995 and/or in terms of Part C of the ELRC Constitution (“the Council”) it was set down for arbitration before me.
2. The arbitration commenced on 03 December 2021 and ran intermittently for certain months and days until concluded on 04 July 2023. The proceedings were conducted both virtually and physically at the 1st Respondent's offices during that period.
3. Parties relied on the bundle of documents as evidence and they were labelled Bundle “A” for the Applicant and Bundle “B” for the Respondents. Parties further submitted closing arguments.
4. Initially, the Applicant was represented by Mr T Lehabe, and on 04 July 2023, the Applicant brought Mr Mopedi as a replacement for Mr Lehabe. Similarly, the 1st Respondent was represented by the late Mr Chichiba and Mr Shiphamele took over as the Respondent’s representative. The 2nd Respondent was represented by Mr Morolong.
5. The proceedings were digitally recorded.

ISSUE(S) TO BE DECIDED

6. I have to determine whether the Respondent’s appointment of the 2nd Respondent was procedurally and substantively fair or not.
7. The Applicant’s relief sought is that the 2nd Respondent’s appointment be set aside and the post should be re-advertised.

BACKGROUND TO THE ISSUE

8. The Applicant was employed as a P1 Educator at Tswasongu Secondary School. On 07 December 2020, the Applicant applied for the post of HOD of Life Orientation and Technology (Post no. GWED1063) at Tswasongu Secondary School (“the school”) and attended the interviews.
9. On 07 December 2020, the interview panel recommended the 2nd Respondent be appointed for the post. The 2nd Respondent was number one (1) on the list of recommended candidates and she scored 52 and the Applicant was number 3 on the list of recommended candidates and she scored 31.
10. The Applicant lodge a grievance with the 1st Respondent on 11 December 2020.
11. On 29 January 2021, the 1st Respondent dismissed the Applicant’s grievance.
12. The Respondent thereafter appointed the 2nd Respondent to assume work on 01 April 2021 .
13. The Applicant, thereafter, lodged this dispute with the Council on 30 March 2021.
14. I was then appointed by the Council to arbitrate the dispute.

SURVEY OF EVIDENCE AND ARGUMENT
The Applicant’s Testimony and Evidence

15. The Applicant testified she applied for a post as per Vacancy Circular No. 01/2020 at the school (“the post”). The requirements for the post were Life Orientation grade 8 to 12 (“LO”), Technology grade 8 to 9 (“Technology”), and computer literacy. The additional requirement was Leadership and Management and SASAMS.
16. LO and Technology were inherent necessary qualifications for a person to possess to be shortlisted and the qualification had to be verified before the 1st Respondent makes a decision.
17. The 2nd Respondent obtained a degree in language and the GDE 2R form (“GDE form”) mentioned the LO qualification however there was no transcript attached to support LO.
18. The GDE form was incomplete however the 2nd Respondent was appointed with an incomplete GDE form which did not have pages 10 to 12 .
19. The 2nd Respondent was appointed without evidence of the academic records to prove that she acquired LO and English. The 2nd Respondent’s degree indicated Language. The Chairperson of the interview panel should have required that information before shortlisting or appointing the 2nd Respondent.
20. For a candidate to be shortlisted, the candidate had to possess qualifications for LO and Technology. The successful candidate could not manage the department as the HOD without having those qualifications. The candidate had to guide, develop, moderate on the subjects, and orientate new educators and it was not possible with experience only.
21. The Applicant had the qualifications for Technology but she did not have the qualifications for LO. The ADE that she obtained was a relevant course qualifying her to teach LO.
22. The Applicant had a teaching experience with LO after teaching LO in grade 9. She was an acting HOD for LO and Technology for 6 months.
23. Because the 2nd Respondent had a degree in Language and there were missing pages on the GDE form, it meant that the 2nd Respondent submitted a false affidavit in terms of her appointment letter.
24. There was a possibility that the GDE form's missing pages were removed intentionally to disadvantage other candidates to support the 2nd Respondent. There was no evidence of the 2nd Respondent’s experience which formed part of the declaration on the GDE form.
25. The 2nd Respondent did not have experience in teaching LO in grades 8 and 9 as per the vacancy circular. The 2nd Respondent taught LO in grades 10, 11, and 12 only.
26. The 2nd Respondent was not supposed to be shortlisted from the start and she mislead the panel. The missing pages on the GDE form was because of the mandate from the 2nd Respondent.
27. The Applicant, during the interview, was disadvantaged because of the mandate from the Observer . Regarding the observer status comment, the Applicant stated that the Observer was not fair to give such a mandate and participate in the interview. The duties of the Observer were to observe and scrutinize but the Observer did not do so, hence the GDE form was incomplete.
28. The facilitator for LO and history was invited and the Technology one was not invited as part of the interview process. The Applicant was uncertain about the duty of the Observer in the interview. If the facilitator of Technology was invited he/she could have identified that the 2nd Respondent lacked experience in Technology.
29. Interview question number 5 was technology related. It was unfair not to invite the facilitator of Technology. B. Vuma scored her 0, whereas the 2nd Respondent scored 4.
30. The possible answers were unfair because they never mentioned investigating, integration with design, and communication (IT Mac in Technology).
31. The Applicant was misunderstood because she used Technology that was different from the possible answers. Perhaps the interview panel did not understand hence Bavuma scored her 0. The facilitator of Technology would have understood the Applicant better.
32. The LO specialist who was invited was very close to the 2nd Respondent.
The Applicant 2nd Witness
33. The Applicant's 2nd witness Elijah Goitsimodimo Matlhaku (“Matlhaku”) testified about his qualifications.
34. Matlhaku stated that according to the post advert, a candidate must have LO grade 8 to 12 and Technology grade 8 to 9 qualifications because it deals with curriculum delivery. The HOD would be responsible for curriculum and manage grade 8 to 12 LO and grade 8 to 9 Technology subjects.
35. Matlhaku did not have experience as a panellist in the recruitment process and he knew the Applicant for more than ten years ago at Merofong Township. He appeared in this arbitration as a person who worked in the education system.
36. Matlhaku did not understand why the history facilitator was part of the panel interviews because the Districts had many LO facilitators. The challenge was that unqualified people were promoted which created problems.
37. If there was no facilitator for Technology it meant that there was no one to advise and guide the school. The facilitator for history was irrelevant.
38. The role of the Observer was to take notes. If there was an objection, then the Observer would put the matter to the panel and they need to know if the Observer was satisfied. The Observer observes fair treatment and he could not be biased or give a mandate to influence the panel.

The Applicant 3rd Witness

39. The Applicant’s 3rd witness Matshidiso Rebecca Ndibasemoe (“Ndibasemoe”) testified that she was an educator at the school since 2009 and she taught English up to grade 12 depending on the allocation. She knew the Applicant and 2nd Respondent as colleagues and the concerned subjects.
40. About the qualification, Ndibasemoe submitted that her understanding of English meant that a person was qualified to teach English. LO was not part of the syllabus at Vista University until 1996 and during the years when she was studying at Vista from 1995 to 1998.
41. Taal Vaardegheid was a didactics module meaning for her to teach Afrikaans she had to study it. It was a language proficiency and it taught her how to teach Afrikaans. She was not conversant with LO.
42. About the Vista transcript of the 2nd Respondent, Ndibasemoe submitted that any subject code with 30D was a semester course covered under Didactics. She was not sure what school guidance was. To her knowledge, major subjects could be studied for three years and Didactics were not major subjects.

The Respondents' Testimony and Evidence

The Respondent's 1st witness

43. The Respondent's 1st witness Patricia Tyegu (“Tyegu”) testified that she was the 1st Respondent’s HR Clerk.
44. Concerning the advertisement of posts, Tyegu submitted that when posts were advertised, they captured the applications and qualified or disqualify the applications guided by the vacancy circular. They are not using their discretion.
45. The application form must have the correct post number and original signature. Without the signature, it was an automatic disqualification. They captured the qualified form on the database and they printed and verified the applications.
46. They also captured disqualified application forms in case there were queries. The sifting slip would be attached with the reason for disqualification which came from the head office explaining what they had to observe on the application.
47. All qualifying forms would be sent to the school which had a post and the disqualified forms would remain in their office. They did not favour any person who applied for a post.

The Respondent's 2nd witness

48. The Respondent’s 2nd witness Aron Mthokozisi Magagula (“Magagula”) testified that he was the 1st Respondent Institutional Development Support Officer (“IDSO”) circuit support.
49. On 7 December 2020, during the interviews, he was appointed as a resource person by the District Director. His responsibility was to facilitate the process and assist the Panelists with setting the criteria for shortlisting and questions for interviews.
50. The process for shortlisting was guided by Personal Administration Measures (“PAM”). For the interviews, they were guided by the Department's Gazette which was a booklet where the 1st Respondent advertised the posts. They also looked at the CAPS document which highlighted the key areas of the person who would manage the subject. There was also a collective agreement of 2005 that guided how they had to conduct the process of selecting and recruiting the post.
51. About the Applicant’s grievance email , Magagula testified that he facilitated the process and it was not true that he was scored during the panel interviews. He welcomed the candidates into the session and outlined the process to be followed. He asked questions with others as well however other panel members scored.
52. Magugula knew about the subject of Technology. He previously taught the subject in the senior phase. He assisted the panel to develop interview questions. When the Applicant responded to questions about Technology, she responded with irrelevant answers.
53. Magugula confirmed that it was his signature in the minutes for interviews . The Observer was Mr Baloyi who represented organised labour. The panel disagreed with his statement and indicated that his role was to observe not to make recommendations to the panel. The panel made recommendation independent of him and guided by the scoring of the candidates.
54. About the statement of the observer, Magagula submitted that the panel relied on the performance of the candidates and the panel scores prove that. The statement of the Observer was not part of that process.
55. About the Applicant’s version that the 2nd Respondent did not have appropriate qualifications, Magagula submitted that the shortlisting was guided by the application form, the relevant qualification, experience, and other certificates which the applicant acquired. The role which the candidates played in the school. They were guided by the list which came from the 1st Respondent which came as a pack containing eligible candidates to be shortlisted and disqualified applicants.
56. The interview was to establish the knowledge background of the candidate as per the requirements of the post. The minutes reflected that the Applicant scored low compared to the 2nd Respondent. There was no mandate which favoured the 2nd Respondent and Magagula did not know of any mandate from anyone. The Applicant was not a better candidate.

ANALYSIS OF EVIDENCE AND ARGUMENTS

57. I must first state that this dispute should have been finalized a long time ago. The dispute experienced delays because of the postponements by the Applicant. The rulings related to cost orders because of the postponements served as proof. This frustrated other Parties and this arbitration.
58. In Department of Justice v CCMA and others (2004) 25 ILJ 248 (LAC) “the Court held that an Employee who complains that the Employer's decision or conduct in not appointing him constitutes an unfair labour practice must first establish the existence of such decision or conduct. If that decision or conduct is not established, that is the end of the matter. If that decision or conduct is proved, the inquiry into whether the conduct was unfair can then follow”.
59. Considering the above authority, I am therefore required to establish if the employee has established the existence of a decision or conduct that constitutes an unfair labour practice. It is the trite in law that the Applicant bears the onus to prove the allegation of unfair labour practice and that she was a suitable candidate to be appointed to the post. In Monyakeni v SSSBC and others (JA 64/13) [2015] ZALAC 17 (handed down on 19 May 2015) the LAC stated as follows: “There are two components to a complaint regarding a failure to promote an Employee as an unfair labour practice. The one relates to the procedure followed by the Employer. The other relates to the substantive merits, and it concerns the suitability of the candidate for promotion to the post in question”
60. It was a common cause that the Applicant and the 2nd Respondent applied for the post in dispute. It was not disputed the Applicant was number 3 on the list of preferred candidates to be employed by the Respondent. The 2nd Respondent was the number 1 preferred candidate for employment.
61. The Applicant relied substantially on the procedural aspect of the process of shortlisting and interviews, not much on the substance to prove that she was a suitable candidate when compared to the two candidates above her on the preferred list of candidates by the panel.
62. The Applicant in cross-examination submitted that the IDSO was senior to the Senior Education Specialist (“SES”). It was common cause that Magagula was the Respondent’s resource person in the interview panels.
63. It was a common cause that both the Applicant and the 2nd Respondent were shortlisted. Shortlisting was a result of the initial sifting process which was conducted by the HR clerks.
64. The testimony of Teygu about the sifting process was not challenged by the Applicant. Further Teygu testified that the pack of qualified candidates was submitted to the school as the application pack for further shortlisting hence they were shortlisted.
65. The Tyegu testimony was important to rebut the Applicant’s testimony that the panel considered an incomplete GDE form during the shortlisting of the 2nd Respondent.
66. The Applicant’s testimony was based on the incomplete form on the bundle of documents. The Applicant did not provide any witness to corroborate her version. The version was Tyegu was credible compared to the Applicant because she worked on the application forms.
67. The Applicant testified that the 2nd Respondent did not have LO as a subject. The applicant attacked the 2nd Respondent’s qualifications and academic records.
68. The Applicant called Ndibasemoe to testify about the Vista University qualification. The evidence of Ndibasemoe could not be relied on because it was not backed up by evidence except her oral testimony. Ndibasemoe was a student similar to the 2nd Respondent and that cannot make her an expert in the university curriculum. There was no one from Vista University or any other university expert to deal with the curriculum of the 2nd Respondent’s qualification to support the Applicant’s version.
69. I agree with the Respondent’s argument that Ndibasemoe’s version that Taalvaardegheid was not LO was irrelevant. The version of the Respondent that previously the LO was school guidance was probable and the 2nd Respondent had appropriate qualifications and experience for the post otherwise she would not have been shortlisted. The Subject Didatics: School guida on the 2nd Rspondent’s academic records cannot mean anything other than guidance.
70. The testimony of Matlhaku could not be relied on because it was proven during cross-examination that he was not an expert. His knowledge of the education system could not be equated to an expert in the education system.
71. During cross-examination, he testified that he was not familiar with Collective Agreement No.2 of 2005 which guided the selection and the recruitment process also he was never part of the interviewing panel. The fact that he submitted that he knew the Applicant for more than ten years suggests that his testimony was biased towards the Applicant.
72. The Applicant based her argument in that Magugala as panel interview chairperson did not understand the advertised post because he was corrected during the grievance meeting that the post was LO and Natural Science instead of Technology.
73. Magagula in cross-examination submitted that the minutes did not reflect what he said in the meeting and denied what was reflected on the minutes in that regard. Magagula further submitted that he did not draft the minutes.
74. It must be noted that the Applicant relied on the minutes but failed to call the author of the minutes. The Applicant did not dispute that the minutes were not authored by Magugala.
75. Despite this correction on the minutes, I do not believe that it was material to the Applicant’s case and this correction cannot suggest that Magagula did not know the post. The minutes of the interview provided contrary evidence including Magaula's testimony of his experience in Technology.
76. I find that the Applicant’s version was not probable that Magagula lacked the knowledge of the post while in fact, he was the one who drafted the interview questions on Technology subject. Bavuma scored based on the interview question and possible answers. Bavuma score was not a deciding factor because other panel scores were combined to arrive at a total score.
77. The Applicant argued that the 2nd Respondent did not have Technology qualification and based its argument on the 2nd Respondent’s degree and qualifications however the 2nd Respondent obtained a National Certificate in Information Technology and End User Computing.
78. The qualification formed the criteria for shortlisting and if the 2nd Respondent did not have the appropriate qualification, she would not have been shortlisted. The vacancy list was not specific in defining the requirements.
79. The Applicant conceded that she only had a qualification in Technology and not LO but she studied courses which allowed her to teach LO. If that was the case, then I cannot understand she could advance such a kind of version if the 2nd Respondent did not have Technology.
80. The Applicant testified that the Observer mandated the interview panel as reflected in the panel interview minutes. The Applicant made this allegation without providing any evidence to support the allegations.
81. Magugula testified that the Observer was Baloyi who represented organised labour in the panel interviews and the panel did not consider this mandate but considered the performance of the candidates in the interview. This version was supported by the scoring of panel members.
82. I find that the testimony of Magagulu was more probable and credible than that of the Applicant. The Applicant participated as a candidate but was not part of the panel members.
83. The Applicant testified that she was scored unfairly because there was no facilitator of Technology in a form of an SES in the interview panel. Magugula testified about his experience in Technology which was not disputed. As a resource person, he had the necessary experience to guide the process. As stated above, Magagula assisted the panel in setting the criteria for shortlisting and setting up questions for interviews. Magagula did not score but only asked questions. It was not Magagula who scored but the other panel members.
84. The Applicant argued that the fact that the Respondent referred to documents that they did not include in their document their evidence should be regarded as hearsay evidence which should not be admitted.
85. I disagree with the Applicant’s argument. Magagula was a senior employee of the Respondent and the chairperson of the interview. His version was credible during her testimony of the rules that guided the shortlisting and interview processes. He testified from memory and this suggests to me that he knew applicable documents such as PAM and the collective agreements. It was upto the Applicant to dispute his version or apply for the referred document to be admitted as evidence for the purpose of disputing Magagula’s testimony which they did not do.
86. In as much as he did not refer to the specific sections in the document, it did not mean that his evidence should be rejected because his version could have simply been disputed by the Applicant. The Applicant had the opportunity to dispute such evidence if it was not factual. Also, it was not the Applicant’s case that the Respondent violated certain provisions of the rules and regulations governing the shortlisting and recruitment process.
87. Lastly, I reject the Applicant’s version that the 2nd Respondent submitted false information or misrepresented herself and therefore that should constitute a false affidavit. This submission reflects a desperate attempt by the Applicant to remove the 2nd Respondent from her position at all costs even if she did not appoint herself. This is supported by the Applicant’s argument that the 2nd Respondent should be demoted and the process should be started afresh.
88. In Pamplin v Western Cape Education Department (C 1034/2015) [2018] ZALCCT 13 (handed down on 9 May 2018) the Court emphasised that whilst in unfair labour practice disputes relating to promotion the onus is on the Employee to demonstrate that the failure to promote was unfair, the Employer, is in the same token, obliged to defend challenges on the substantive and procedural fairness, if it wishes to avoid a negative outcome. According to the Court, there is an obligation on the Employer to place evidence that it acted fairly and in good faith during the promotion exercise. In the absence of such evidence, it would be irrational and unreasonable to conclude that the Employer acted fairly, regardless of where the onus lies.
89. In this matter, most of the Applicant’s testimony was not corroborated by relevant evidence. The Applicant failed to prove that she was a suitable candidate to be appointed exept blaming Bavumo for scoring her 0 and that there was no facilitator of Technology. At the end of the day, it was not only the score of Technology that was considered. It was total score on all the question which were supposed to be answered.
90. The Respondent on the other hand proved that it acted fairly in appointing the 2nd Respondent. I find that the Applicant failed dismally on the balance of probability to prove that the Respondent’ appointment of the 2nd Respondent was procedurally and/or subtatively unfair. I find that the Applicant’s application of an unfair labour practice related to promotion should be dismissed.
AWARD

91. I, therefore, issue the following award;
91.1. The Applicant's application of an unfair labour practice related to promotion against the Respondent is dismissed.
91.2. The ELRC is directed to close the file.


Chance Khazamula
ELRC Panelist
Date: 04 August 2023