ELRC920–21/22KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT PINETOWN, KWAZULU-NATAL
CASE NO: ELRC 920 – 21/22 KZN
In the matter between:

NATU obo BZ MDLALOSE APPLICANT
(Employee)

and

DEPARTMENT OF EDUCATION KWAZULU - NATAL FIRST RESPONDENT
(Employer)

GS ZIBANE SECOND RESPONDENT
(Employee)

ARBITRATION AWARD

Details of Hearing and Representation


1. This arbitration hearing took place over four days and was finalized on 26 September 2023 at the offices of the Department of Education, Pinetown District Office, 13 Voortrekker Street, Pinetown, KwaZulu-Natal.

2. Mr C S Mkhize an official from the Union NATU represented the applicant. Mr I. Makhooe, from the first respondent’s employee relations department, represented the first respondent. Mr S Zondi, an official from the union SADTU, represented the second respondent.

3. The hearing was digitally recorded.

4. The representatives made an application to submit closing arguments in writing on or before 10 October 2023, which I granted. The closing arguments were timeously received.

5. I marked the Pre-arbitration Minutes entered into between the parties on 11 August 2022 as Exhibit “A”, the applicant’s bundle of documents as Exhibit “B”, and the first respondent’s bundles of documents as Exhibits “C”, and “D”.

6. The pre-arbitration minute was discarded by agreement between the parties before the evidentiary stage of the arbitration.


Issue in dispute


7. I must decide whether the first respondent committed an unfair labour practice against the applicant in the conduct of the selection process in respect of Post Number 268 of HRMC 35 /2021.

Background to the dispute


8. The applicant is a Post Level 1 Educator based at the Zeph Dhlomo Secondary School, KwaMashu, KwaZulu-Natal. He applied for the post of Deputy Principal of Kwesethu High School, Post number 268 (the post), advertised in terms of Human Resource Management Circular 35 of 2021 (HRM 35/2021).

9. Shortlisting took place on 16 October 2021. The applicant and four other candidates were shortlisted to be interviewed on Saturday, 23 October 2021.

10. The Interview Committee decided that the shortlisted candidates would be telephonically informed of their interviews. The applicant alleges he was not invited to be interviewed.

11. The applicant lodged a grievance to that effect on 11 November 2021. The grievance committee dismissed his grievance.

12. The second respondent was the first recommended candidate in terms of the EHR 11 Form and was accordingly appointed to the post on 14 February 2022.

13. The applicant referred a dispute to Council alleging that he was the victim of an unfair labour practice.

14. The dispute remained unresolved at conciliation and was referred to arbitration, before me.

Analysis of evidence and argument

15. The facts of this matter appear from the analysis that follows.


16. An arbitrator is required to determine an unfair labour practice dispute in terms of Section 186(2)(a) of the Labour Relations Act (the LRA). That section provides that:

“An unfair labour practice is any unfair conduct that an employee has suffered relating to appointment, promotion training or benefits.”

17. The applicant testified and called one other witness, namely; Nokwazi B. Majola (Majola), the secretary of the interview committee.

18. The first respondent called two witnesses. They were V. Mhlongo (Mhlongo), the chairperson of the interview committee, and F. N. Ngema (Ngema), the resource person for the selection process. The second respondent did not testify, nor did she call any witnesses.

19. I turn against that backdrop to determine the main factual dispute, headlined below.

Whether or not the applicant was invited to an interview?

20. The primary factual dispute is whether or not the applicant was invited to the interview process scheduled for Saturday, 23 October 2021.

21. Paragraph B.5.4.5 of the Personnel Administration Manual (PAM) provides that, “ The employing department is responsible for convening the interview committee and must ensure that all relevant persons/ trade unions are informed at least five working days prior to the date, time and venue for the shortlisting, interviews and the drawing up of the preference list.” (my emphasis)

22. It was therefore mandatory that the interview committee give the shortlisted candidates five working days- notice of their scheduled interviews.

23. The applicant alleged that he was not invited and that whatever was done by the department to that end was insufficient. On Sunday, 24 October 2021, the applicant noticed that he had received a missed call the previous day. He called that number and got through to Ngema, the Resource Person. She informed him that he had been shortlisted for an interview and that she had been trying to get hold of him the previous day, the 23 October 2023. He requested another “chance” to be interviewed but she advised him that the interviews had already taken place.

24. He was uncertain and could not establish why his phone did not ring. He alleged that this was possibly due to the poor network or that his phone was off at the time and/or that he did not hear it ring.

25. Majola testified that she had been instructed by Ngema to telephonically call the shortlisted candidates and inform them of their interviews. Majola was uncertain about the date on which she made the calls, that is, whether it was on 18 October 2021 or 19 October 2021.

26. Majola’s version that Ngema had instructed her to make the calls was disproved by Mhlongo. He testified that he personally telephoned Majola and instructed her to call the shortlisted candidates. He in addition sent Majola a WhatsApp text on 18 October 2022 at 10h22 reminding her to do so. A printout of the Whatsapp call was tendered into evidence . I accordingly find that Majola made the telephone calls on 18 October 2021, as per the instructions of Mhlongo.

27. Majola more seriously, alleged that Ngema had instructed her not to call the applicant to inform him about his interview. The reasons allegedly proffered to her by Ngema were that the applicant was shortlisted by mistake, he lacked work experience, and had changed schools frequently.

28. Majola’s evidence proved to be unreliable. In the first instance, she could not remember whether she called the four other shortlisted candidates on 18 or 19 October 2021. Secondly, she sought to mislead the arbitration by alleging that Ngema dissuaded her from calling the applicant. I accept the first respondent’s representative’s argument that it is highly improbable that Ngema would have instructed Majola not to inform the applicant. Ngema knew that such an instruction would be exposed in the interview process by a simple inquiry by any member of the IC as to the whereabouts of the applicant and or by enquiring from the applicant himself.

29. The probabilities indicate that Majola did not anticipate that Mhlongo would testify, confirm his instruction to her, and further prove this by the production of a printout of his Whatsapp confirmatory message. She challenged the first respondent to prove that her instruction emanated from Mhlongo and not Ngema, which the first respondent did.

30. In the premises, I find that Majola informed the four other candidates on 18 October 2023 of their scheduled interviews but failed to inform the applicant of his interview at all.

31. Ngema denied instructing Majola not to invite the applicant. She submitted that she would never do such a thing given that the other stakeholders in the process would certainly query during the interview process the absence of the applicant. She was unaware of whether Majola had invited the applicant to the interview process, or not.

32. What the Resource Person and Secretary of the Interview Committee, respectively, failed to appreciate was that they were departmental appointees whose function it was to conduct a selection process that was beyond reproach, as opposed to blame-shifting. In the context of this matter that required the Interview Committee to individually and collectively rebut the challenge raised by the applicant that he had not been invited to the interview process.

33. There is no plausible explanation before me for Majola’s failure to invite the applicant. It was her duty as the secretary to inform the applicant by telephone of his interview on the same day as the four other candidates. In the premises, I find that Majola failed to carry out her duty in that regard. Apart from the express directive in PAM in paragraph B.5.4.5; it is a matter of common sense and logic that all shortlisted candidates must be invited to be interviewed. Her claim that she did not know any better rings untrue.

34. Ngema likewise cannot simply distance herself from the responsibility of ensuring that all shortlisted candidates are invited. No evidence was led about what, if anything, was done between the 18th and 23rd of October 2021, to verify that all candidates, including the applicant, had been properly invited. Her single unsuccessful call to the applicant on the day of the interviews, that is, 23 October 2023, was woefully inadequate. In this regard, paragraph 12.1.8 of the procedure manual provides that the role of the resource person is to address any challenges that may arise during the selection process.

35. The chairperson was likewise required in terms of paragraph 13.5 of the procedure manual to ensure that all interview arrangements were finalised timeously. This included confirming with Majola that she had indeed informed all five candidates, including the applicant, five days before the scheduled interviews.

36. What transpired instead was that the members of the Interview Committee sought to distance themselves from their individual and collective responsibility. In the result, nothing was done to verify whether the applicant had been properly notified of his interview before the interview date.

37. In the premises, I find that the applicant suffered an unfair labour practice in that he was not timeously informed of the date, time, and venue of his scheduled interview.

38. This omission by the members of the Interview Committee constituted a serious breach of a mandatory provision of the PAM read with Collective Agreement 5 of 1998.

Relief

39. The applicant seeks relief in the form that the appointment of the second respondent is set aside and that the selection process is redone from the interview stage. The onus was on the applicant to prove that he was entitled to that relief.

40. Collective Agreement 3 of 2016 ( CA 3/2016 ) entitled ELRC Guidelines: Promotion Arbitration, is instructive in this regard. Paragraph 68 thereof provides that, “Unless an applicant can demonstrate that he has a realistic chance of being appointed should the process be repeated in a fair manner, it is pointless to set aside the process and direct that it must be repeated.”

41. The applicant failed to demonstrate either by adducing oral or documentary evidence that he stood a realistic chance of being appointed to the post if the interview process is repeated. The applicant simply averred in his closing arguments that the appointment of the second respondent was without just cause and should be set aside and the interview process be redone .
.
42. Paragraph 68 of CA 3/2016 paraphrased, provides that where an applicant’s qualifications and experience as set out in his or her application form and curriculum vitae, reveals that he or she is the weakest candidate, it follows that the candidate does not stand a realistic chance of being appointed to the post should the process be repeated. It would therefore be pointless to repeat the process.

43. Paragraph 68 consequently requires an arbitrator to consider the applicant’s application form and CV to determine whether the applicant has a realistic chance of being appointed to the post; if the interview process is redone.

44. Form EHR 9, the Schedule of Shortlisted Applicants , is a record of the scores allocated to each candidate during the shortlisting process, based on the Selection Committee’s assessment of each candidate’s Application Form and CV. It is therefore, in my view, a reliable measure of how realistic a chance an applicant has of being appointed to the post, if the process is repeated. I note that the applicant is listed as the fifth and last ranked candidate. The applicant scored 25,65 points whilst the second respondent scored 32,98 points in the shortlisting process. That represents a difference of almost 7 points.

45. I consider the following further, relevant factors. The applicant is a Post Level 1 Educator whereas the Second Respondent and Candidate Mdluli are Post Level 2 Educators, as per the Recommended Candidates List . Moreover, the second respondent surpassed the other candidates interviewed by 18 points, scoring 39.99 points. Those candidates scored an average score of 21.31. The applicant was ranked below these candidates in the shortlisting process.


46. Finally, I note from the Preference List submitted by the applicant that he applied for three other posts of Departmental Head in terms of HRM 35 of 2021. That is a lower-ranked post than Deputy Principal. He did not take the arbitration into confidence by disclosing the outcome of those applications. The probability is that he was unsuccessful.

47. In paragraph 41 of the collective agreement, the point is made that an employer may consider subjective factors such as performance at an interview as well as life skills. In other words, there remains a possibility that a candidate who is unfairly excluded from being interviewed may have a chance of being appointed if he or she is allowed to compete for the post. Merit, however, remains the main determinant.

48. Whilst I as the arbitrator am not qualified to usurp the role of the Interview Committee, it remains within my power to determine, on a balance of probabilities, whether or not the applicant is entitled to be given an opportunity to compete for the post. The applicant, based on his application form and CV, was the weakest candidate. He does not have, in my finding, any realistic chance of being appointed to the post if the process is repeated.

49. I have considered other relevant factors that weigh against my interfering with the outcome of the interview process. The second respondent was appointed to the post on 14 February 2022. A period of one year and eleven months has lapsed since her appointment. She is in all probability well settled in her role. It will in my view be disruptive to the operations of the school and the department to interfere with her appointment. The probabilities are that education will be disrupted and learners at the school adversely affected.

50. It is trite law that in all matters concerning children, it is their best interests that must be given paramount importance . I accordingly find that it is also not in the best interests of the learners at the school for the second respondent’s appointment to be set aside.

51. The issue that remains is the relief to be awarded to the applicant. Section 193(4) of the LRA provides that an arbitrator appointed in terms of this act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering reinstatement, re-employment, or compensation. The first two forms of relief are not applicable in this matter leaving the payment of compensation as the only option.

52. The compensation that the applicant is entitled to is for non-patrimonial loss, meaning loss that is not financial. An amount of money is usually ordered to be paid in the form of a solatium . In this instance, the payment is for the injury suffered by the applicant by unfairly not being invited to attend an interview.

53. Collective Agreement 3 of 2016 is once again instructive on the amount to be awarded for the serious procedural unfairness that the applicant has suffered. I must however weigh this against my finding that the applicant did not have any realistic chance of being appointed to the post. I find that payment in the amount of R10 000 is appropriate.


AWARD


I accordingly make the following award:


(a) The first respondent is ordered to pay the applicant the amount of R 10 000.00.


(b) The aforesaid amount must be paid to the applicant within fourteen days from the date of service of this award on the first respondent.

15 January 2024

ELRC DATE
Senior Panelist
Adv. Anashrin Pillay