ELRC725-22/23GP

IN THE ELRC ARBITRATION
BETWEEN:

PSA obo Serole Stephinah Mokgolo Applicant
and
DEPARTMENT OF EDUCATION –Gauteng Province Respondent

ARBITRATION AWARD

Case Number: ELRC725-22/23GP
Arbitration dates: 21 February 2023, 12 April 2023, and 27 July 2023
Date of Award: 24 August 2023
ELRC Arbitrator: Pitsi Maitsha

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1. On 21 February, 12 April, and 27 July 2023 this dispute came before me at the arbitration hearing. The dispute was postponed. On 12 April 2023, an arbitration hearing was held face-to-face. A final arbitration was held on 27 July 2023. This arbitration was held under the auspices of the ELRC in terms of section 191(5)(a)(iv) of the Labour Relations Act, 66 of 1995 as Amended “The Act”. The award is issued in terms of section 138(7) of “The LRA”.

2. The applicant is Serole Stephina Mokgolo and she was represented by Mr. Simon Sono, the PSA Labour Relations Officer. The first respondent is The Department of Education: Gauteng Province and was represented by Mr. Joseph Munengwane, Senior Education Specialist District Management. The second respondent, Mr. Ndzaliseko Sikampula also attended, and he represented himself.

3. The parties gave the evidence under oath. The proceedings were held at Nokuthula Special School in Johannesburg. The proceedings were digitally recorded, and all the recordings are submitted to the Council.

ISSUE TO BE DECIDED
4. I am required to determine whether the conduct of the respondent not to promote the applicant constituted an unfair labor practice. If so, make an appropriate order.

BACKGROUND DETAILS
5. The parties held a pre-arbitration meeting and agreed on the following in terms of the Pre-Arbitration Minutes:

6. In terms of common cause facts:
6.1.1 The respondent is the provincial department of education as defined by section 1 of the Employment of Educators Act, 76 of 1998, is a provincial department responsible for education in a province and includes all public schools, further education and training institutions, departmental offices, and basic adult education centers in such province.

6.1.2 The applicant commenced employment with the respondent on 24 January 1994 as the Teacher and she is currently the Departmental Head since January 2008.

6.1.3 The Post of the Deputy-Principal became vacant at Drake Koka Primary School situated in Johannesburg East District. The advert was issued in the Gauteng Department of Education Vacancy Circular 2 of 2022 published on 9 May 2022 under Post NO GE22ED1014, of which the closing date was on 27 May 2022.

6.1.4 She applied for the post and on 26 August 2022 she was shortlisted. She was then invited to attend the interviews on 26 August 2022. The interviews were held on 5 September 2022. There were six (6) candidates who were shortlisted including the applicant.

6.1.5 Shortly after the interview on 12 September 2022, the applicant lodged a grievance against the interview she had. The grievance outcome with the subject “GRIEVANCE OUTCOME” was made on 20 October 2022 from Ms. Shirley Molobi, the District Director, and reads as follows: “GE22ED1014: Dear Ms. Mokgolo, The above matter bear’s reference. The District Committee upon looking into the grievance submissions you made during the investigative meeting and recruitment file established that all candidates were given 15 minutes to answer all the questions prepared for the interviews and you wasted your time before the last question could be asked and the last question could not be asked. As such, your grievance is not substantiated. Based on the above, the grievance is dismissed.

6.1.6 RELIEF SOUGHT: The applicant seeks a protective appointment.

7. Following the grievance outcome dated 20 October 2022, on 1 November 2022, Ndzaliseko Sikampula was appointed. The post is on the salary of R427 794,00 per annum.

8. Aggrieved by the failure to appoint her, the applicant referred an alleged unfair labour practice dispute relating to promotion to the ELRC.

THE EVIDENCE OF THE APPLICANT
9. The applicant testified that she was called to the district office and on arrival she was told it was the investigative meeting, Mr. Munengwane was the chairperson, and some panelists were from her school, SADTU observers. They formed part of the panel during her interview.

10. She testified that the chairperson asked her to tell what she was aggrieved about. She told them that she was unfairly treated as she was not asked the sixth (6th) question because they said her time has lapsed. They also asked the panelists question. It was their statement against her. The two panelists made representation and they indicated that every candidate was allocated 15 minutes, whereas she was not told of the 15 minutes. Thus, why she was shocked because she was not aware of the time allocated to her. After the deliberations, she left, and the chairperson said the outcome of the meeting would be communicated to her by the District Director.

11. She testified that the outcome was sent to her by email stating that her grievance was dismissed.

12. She testified that the time for her interview was at 12:00pm. The interview invitation did not mention time. She was interviewed at about 15:00.

13. She testified that the secretary came to call her at about 14:45 and upon arrival, the chairperson of the panel introduced the panelists and those observers. They then told her who would be asking questions and they started asking questions. They told her that they were going to ask her six questions.

14. She testified that when they were supposed to ask her the sixth (6th) question, the chairperson told her that they were supposed to be asking her the sixth (6th) question, but due to her time lapsed, they were not going to ask her. Nobody warned her about the time, they just told her at the end that the sixth question they were not going to ask her because she was allocated 15 minutes to answer all these questions. She testified that if she was told of the time, she would have cut short her answers.

15. She testified that clause 9.1 of the Collective Agreement states: “The chairperson of the interview committee must initiate the selection process and he/she must be present in control in all stages during the process.” The chairperson was supposed to be in control of all stages. She was supposed to have informed her that she was running out of time.

16. She testified that the union observers were from NATU and SADTU. Clause 12.2 provides that the panel must agree on criteria for recommendation on the day of the interview process, that is discussions and scoring of, or scoring only or formulation of the questions. Questions must be set on the day. There should be no deviations from the agreed criteria.

17. Clause 12.6 reads as follows: “The same questions must be asked of all shortlisted candidates being interviewed for the same post. A time limit per question and the duration of the interview must be agreed upon by the interview committee prior to the interviews.

18. She testified under cross-examination that her dispute is that she was not told by the chairperson of the interview committee that the six candidates were allocated time. She agreed with Mr. Munengwane that there were no observers at her Disciplinary Committee Grievance (DCG). Mr. Elias and Ms. Ngwenya were present on the day of her interview, not at the DCG.

19. She further agreed that in terms of clause 10.1 of the Collective Agreement, the union observers must not introduce themselves to her, but to the panel. She testified that she was a member of SADTU, one of the unions that were present at her interviews. She testified that she was allocated nothing because they said time lapsed. She did not know that the time has elapsed. She also agreed with Mr. Munengwane that the second respondent was allocated a score of 5 on question number six because the time has elapsed. She further agreed with Mr. Munengwane that all candidates were allocated 15 minutes to answer six questions. She agreed with Mr. Munengwane that there is no prescriptive policy on time.

THE EVIDENCE OF EMMA MOTSEO: THE SGB MEMBER
20. She testified that she is not employed elsewhere, but she is a member of the SGB at Drake Koka Primary School. She testified that the members of the interview panel were seven or eight. She testified that after the first interview, the panel then agreed with time. The principal came with the time limit.

21. She did not remember how much time was allocated, at least 10 to 15 minutes. The first candidate was not told about the time limit, only the second candidate was told. She testified that what happened at the interview was that the applicant entered the interview room and was introduced. They then started asking her questions. There were six candidates.

22. She testified that the principal did stop the applicant. The applicant was shocked, and she left. The principal then said they made a mistake by not telling the candidate of the time limit. The chairperson was the timekeeper. She testified that no one was stopped after the applicant was stopped. She agreed with Mr. Sono that the process followed by the interview committee was unfair because they did not tell the applicant about the time. They failed her. She testified that there were union observers from SADTU and NATU.

23. She testified under cross-examination that she is not sure of the number of the panel members including the observers, they were six or seven. She testified that the panel agreed before the interview that when all the candidates came in, they were told that the questions were allocated 15 minutes, but when the first candidate came in, she was not told of the time. When she was told that Mr. Chabalala will testify that all the candidates were told they will be given 15 minutes, she testified that she was not sure about it. She testified that she scored the applicant Zero because they stopped at question number 5 due to time. She testified that she told the applicant what happened because it was not correct.

THE EVIDENCE OF THE RESPONDENT
THE EVIDENCE OF OBED CHAVHALALA: THE SGB MEMBER- INTERVIEW PANEL CHAIRPERSON
24. He testified that in the meeting of the panel he recorded under the heading “SETTING OF QUESTIONS” the following in item 6.2 “QUESTIONS”: “It was agreed that there will be six questions and they to be asked inside 15 minutes and the questions are as follows.”

25. He testified that the applicant was the first candidate to be interviewed. When the applicant entered the room and having greeted her, he introduced the panel and explained that the time limit is 15 minutes for six questions. There was a big watch on the wall facing the candidate. He testified that he scored the applicant Zero because she did not answer the question six due to time. Her time lapsed while she was answering question number 5.

26. He testified that there were no discussions between the interviews of any candidate. He testified that there were two candidates on that day who were stopped due to time. They were the applicant and Sikampula. It is not true that the applicant was told of the time after question 5.

27. He testified under cross-examination that they started the interview at about 14:15. The chairperson of the interview panel with the assistance of a panel compiled the questions. He testified that the panel came with the issue of 15 minutes. He testified that clause 12.6 of the Collective Agreement under the heading “INTERVIEW PROCESS” reads as follows: “The same questions must be asked of all shortlisted candidates being interviewed for the same post. A time limit per question and the duration of the interview must be agreed upon by the panel prior to the interview.” He testified that they asked the same questions of all the shortlisted candidates. They did not agree on a time limit for each question but agreed on the duration of the interview. He testified that they asked the same questions, but they could not ask the applicant the sixth question because she had finished her time on question 5.

THE EVIDENCE OF ELIAS MOALUSHIE SHELA: THE TEACHER
28. He testified that he was a teacher at Dulcie September Primary School. He testified that during the interview process, he was an observer. He was representing the union, SADTU. Tshavhalala was the chairperson of the interview committee.

29. He testified that the applicant was the first candidate to be interviewed that day. He testified that when the applicant entered the room, Mr. Tshavhalala introduced the panel, indicating that the duration would take 15 minutes, and each panel will ask six questions. The clock was displayed to show time.

30. He testified that clause 10,9 of the Collective Agreement NO 1 of 2021 ELRC Collective Agreement for Gauteng Chamber provides: “If the observer needs to draw the attention of the interview committee to a violation of any prescribed process and/or procedure, he or she must direct his or her objection and/or observation to the chairperson of the panel. Such communication may not be done during the selection process and/or in the presence of the applicant being interviewed for an advertised post. Such objections must be in minutes. Observers cannot stop the shortlisting and interviews, instead, they can follow the right channel to lodge grievances”.


31. He testified that he did not observe any process or procedure being violated whilst the applicant was being interviewed. The interview was just fair. He testified that the policy used at the interview was Collective Agreement 1 of 2021. According to his observation, the procedure was followed to the letter.

32. He further testified that the applicant was allocated 15 minutes. She was stopped at question 6 because her time was depleted. He also testified that there was no caucus. He testified that the applicant did not suffer prejudice.

33. He testified under cross-examination that he does not know the union the applicant belongs to. It is not his duty as the observer to know what unions the candidate belongs to. He testified that the big clock was there, but he could not describe what it is. He testified that clause 12.6 provides that the same question must be asked of all shortlisted candidates being interviewed for the advertised post. It further requires the panel to agree upon a time limit per question and the duration of the interview. There was no time limit to each question, but collectively the interview panel agreed on 15 minutes.

THE RESPONDENT’s CLOSING ARGUMENTS
34. Mr. Joseph Munengwane submitted that the respondent has on the preponderance of the balance of probability successfully discharged its responsibility of rebutting that the applicant was unfairly treated during the interviews for the deputy principalship post. He submitted that through the evidence of the chairperson of the interview committee chairperson and corroborated by the panel member union observer that the applicant was the first candidate to be interviewed, when she entered the interviews room, the introduction of the panel members was done and she was told that interview for six questions would be 15 minutes, a round clock was displayed for all the candidates to see the time. The observer testified that the interviews were fair, there were no complications and he demonstrated that the applicant’s claim is not correct as the interview committee followed the prescripts of the Collective Agreement NO 1 of 2021 and the applicant suffered no prejudice as the second respondent was also stopped before finalizing answering question number six because his time of 15 minutes also lapsed.

35. This was enough probable plausible evidence that there was consistency in the application of the policy. He argued that the version of Ms. Motseo, the applicant’s witness, that she could not remember the other candidate who was stopped before finishing all questions was giving false evidence as she was an interview committee member, but her version was rebutted by the respondent’s two witnesses. Ms. Motseo was also asked why she gave no reason for scoring the applicant Zero in item 6 in the scoresheet, there was no probable version given. He submitted that the version of Ms. Motseo is improbable and should be rejected. He indicated that it is tried law that when the applicant refers an unfair labour practice dispute, he or she must prove that the employer’s conduct in promotion was unfair. He argued that the applicant never at any stage managed to discharge the burden of proof in this matter and that indeed there were prejudice and inconsistencies when applying the recruitment policy. He submitted that the respondent’s prayer is that based on the balance of probabilities it has rebutted the applicant’s claim and the dispute must be dismissed.

ANALYSIS
36. This matter concerns an alleged unfair labour practice relating to promotion in terms of section 186(2)(a) of the “LRA”. For this award, the proof of the existence of alleged unfair conduct by the respondent rests on the applicant. The parties had agreed to use one bundle for ease of reference. The applicant had called two witnesses. The respondent has also called two witnesses.

DEFINITION OF PROMOTION
37. The word [promotion] has been defined in a number of Labour Court, Labour Appeal Court, Supreme Court of Appeal and Constitutional Court judgements. In the Labour Court matter of the Department of Justice v Conciliation in which it defined “promotion” as follows: “Unfair labour practice means an unfair act or omission that arises between an employer and an employee involving (a) unfair conduct by the employer relating to promotion [of an employee]. Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice.

38. Giving rise to this dispute is the fact that the post of Deputy Principal at Drake Koka Primary School became vacant and was advertised. Following the applications made by all interested candidates including the applicant and the second respondent, shortlisting took place. The applicant, the second respondent, and other candidates formed part of the shortlisted candidates and as such they were invited to the interview which took place on 26 August 2022.

39. The conduct of interviews with the educator is governed by Collective Agreement NO 1 of 2021 for the ELRC Gauteng Chamber. The procedure to be followed is clearly set out in the Collective Agreement. Clause 12 requires the interview committee to hold a meeting and agree on issues such as criteria for a recommendation, on the day of the interview process, formulation of questions, and scoring of or scoring only. The discussion and agreement should take place on the day of the interview.

40. In terms of clause 12.6 of the Collective Agreement, the interview panel is required to ask all the shortlisted candidates being interviewed for the advertised post the same questions. A further obligation is placed on the interview committee to reach an agreement prior to the interview on the time limit and the duration of the interview.

41. It is not disputed that the interview committee had agreed to allocate 15 minutes to the shortlisted candidates, and they would be asked six questions. The agreed 15 minutes is the subject of this arbitration.

42. It is further common cause that on 26 August 2022 the applicant was the first candidate to be interviewed. I wish to record that there is a dispute about what time she was called in. The applicant said she was called at about 14:45, whilst the chairperson of the interview panel was of the view that the applicant was called at about 14:15. Having entered the room, the chairperson of the interview panel introduced all members of the panel, including the observers, to the applicant. Then they started asking questions until question 5. It is common cause that she was then stopped at question 5 on the basis that her time of 15 minutes had elapsed.

43. This is where the crux of the dispute is. It is further common cause that the applicant was not asked the sixth question because her time had lapsed. I wish to record in this regard that the version of the applicant was corroborated by her witness, Ms Emma Motseo. It then follows that the gist of the enquiry before me is to determine whether the applicant was informed of the time limit at the start of her interview as agreed by the interview panel. In the event I find that the applicant was not aware or was not informed of any time limit, the next enquiry will be to determine whether the was any prejudice suffered by the applicant, however, in the event I find that the applicant was informed of the time limit, that will be the end of the enquiry and the dispute.
44. In the matter of Pamplin v Western Cape Department of Education and Others (2018) ZALCCT (2018), the Labour Court had said the person wishing to succeed in the claim of non-promotion ought to demonstrate the following four factors: whether he or she met all the requirements of the position, whether he or she was the best candidate for the position, that not being promoted caused prejudice to him or her and that there is a causal connection between the unfairness complained of and the prejudice suffered.

45. In the present matter, there is no evidence led to demonstrate that there is a dispute on the fact that the applicant did not meet all the inherent requirements of the position and she was the best candidate for the position of Deputy Principal.

46. As already stated, the applicant was not asked the sixth question because she was told she has exhausted her time, or her time had lapsed. She was subsequently allocated a score of zero. The applicant’s version is that she was not told of the time limit. It is not disputed that the interview panel had agreed that the candidates would be allocated 15 minutes during the interview. Normally, it is appropriate to inform the candidate at the beginning of the interview of the house rules which include, how the interview process is going to be conducted. If there is a time limit allocated to the interview, the candidate should be informed. The candidate should also be informed who is going to ask questions from the panel and if he or she has any questions, he or she must feel free to ask. Even in the case of seeking clarity, the candidate should be informed not to hesitate to ask.

47. In the present matter, the applicant has called Ms. Motseo as her witness, who was part of the interview committee. Shortly after completing her interview, the applicant lodged a grievance regarding the interview alleging that nobody informed her of any time limit. Her grievance was as a result dismissed.

48. According to Ms. Motseo, the interview panel discussed the time limit after the applicant’s interview. As already stated, the applicant was the first candidate to be interviewed. She said the applicant was not advised, nor informed of the time limit of 15 minutes. I am of the view that Ms Motseo contradicted herself. During cross-examination, she conceded that the interview panel agreed before the interview that there will be six questions that had to be answered in 15 minutes. Both versions of the respondent’s witnesses, Mr. Tshavhalala and Mr. Shela corroborated each other when they said after introducing the interview panel to the applicant, she was then advised that the duration would take 15 minutes for six questions.
49. It is a common cause that there were two candidates who were stopped due to the lapse of time. It is worth noting that the second respondent was successful regardless of being affected by time. In terms of clause 12.6 of the Collective Agreement NO 1 of 2021 for ELRC Gauteng Chamber, the interview panel was required to allocate a time limit to each question and the duration of the interview. I am of the view that this is where the interview panel misinterpreted this provision. The interview panel was correct to agree on the duration of the interview, but they failed to allocate a time limit to each question.

50. I am of the view that the evidence of Mr. Shela should be treated with serious caution. Mr. Shela said the chairperson, Mr. Tshavhalala indicated to the applicant that each panel member would ask her six questions. This is not probable. I am of the view that given the fact that the interview was delayed by more than two hours, Mr. Tshavhalala was not aware of what time the applicant was called. The applicant’s version that the secretary of the interview panel called her at about 14:45 remained undisputed by the respondent. Given the above, I, therefore, disagree with Mr. Munengwane’s submission that the respondent has on the preponderance of a balance of probabilities succeeded to disprove and rebut the applicant’s claim.

51. To ensure that the applicant’s version is more probable than the respondent’s, Mr. Tshavhalala was asked as to what time the interview of the applicant was finished. In his response, Mr. Tshavhalala said at 14:32. If, indeed, the panel had agreed that the duration of the interview would be 15 minutes, then the interview panel contravened its own rule, and as such this amounted to an irregularity.

52. Having regard to the above, I am persuaded by the applicant’s version that the interview panel did not tell, inform, or advise her of the time limit at the start of the interview, but she was only informed after answering question 5.

53. In the City of Cape Town v SA Municipal Workers Union obo Sylvester and Others (2013) 34 ILJ 1156 (LC), the Labour Court said that generally, the test in promotion disputes is fairness. The Labour Court further said in determining whether the employer’s act to refuse an employee promotion, the relevant factors to be considered are: whether the failure or refusal to promote was motivated by unacceptable, irrelevant, or invidious considerations on the part of the employer; or whether the employer’s decision was motivated by bad faith, was arbitrary capricious, unfair or discriminatory; whether there were insubstantial reasons for the employer’s decision not to promote; whether the employer’s decision was not based upon a wrong principle or was taken in a biased manner, whether the employer failed to apply its mind to the promotion of the employee; or whether the employer failed to comply with applicable procedural requirements related to promotions.

54. I am of the view that the respondent has contravened the provision of Collective Agreement NO 1 of 2021 in relation to the time limit. The respondent had failed to allocate time to each question. By not allocating time to each question, the respondent was in the circumstances contravening the applicable procedural requirements related to promotion.

55. It is common cause that the applicant was stopped at the end of question 5 on the basis that her time had lapsed. According to the applicant, should she have known at the start of her interview, she would have planned her answers properly, she was going to shorten her answers. She has been prejudiced because question six was not asked of her and in the process, she was allocated a score of zero. At this point in time, I wish to record that a failure to inform the applicant of any time limit led the interview panel to give her a score of zero because she was not asked question six and, in the process, she was prejudiced as she did not receive any score on the last question.

56. In Noonan v Safety and Security Sectoral Bargaining Council and Others (2012) 33 ILJ 2596 (LAC), the Labour Appeal Court held that there is no right to promotion, but only a right to be given a fair opportunity to compete for a post.

57. The evidence before me is sufficient to conclude that the respondent’s decision to stop the applicant on question 5 or not to ask her question six failed to give the applicant a fair opportunity to participate fairly during the interview process and comply with applicable procedural requirements relating to promotions. Also, the decision was taken unfairly.

58. Having regard to the above, I am satisfied that the applicant has succeeded to discharge the onus to establish that the conduct of the respondent not to ask her question six and failure to inform her of the time limit at the start of the interview constituted an unfair labor practice.

59. Turning to an appropriate remedy, I wish to state that the applicant has indicated that she is seeking to be appointed to the post of deputy principal. I am however of the view that this request is not probable. In terms of section 6 of the (3) (e) “EEA”, I can consider two remedies namely: an order to readvertise the post or appoint the applicant. In the present case, the applicant did not claim to be the second best during the interview. The dispute is only considered based on the failure of the respondent to comply with the applicable procedural requirements relating to promotion. I, therefore, consider readvertising the post to be an appropriate remedy.

60. In the premises, I find the following award competent.

AWARD
61. I find that the applicant, Serole Stephina Mokgolo, has succeeded to establish the existence of unfair labor practices relating to promotion.

62. As a result of the above, the appointment of the second respondent, Mr. Ndzaliseko Sikampula is set-aside effective 30 September 2023.

63. I hereby direct the Department of Education: Gauteng Province, to readvertise the post of deputy principal.


P. Maitsha
ELRC Panelist