ELRC339-22/23GP

IN THE EDUCATION LABOUR RELATIONS COUNCIL

Case No: ELRC339-22/23GP

In the matter between

Dennies Letebele Diketane Applicant

and

Department of Education Gauteng 1st Respondent
Gloria Ntombizodwa Dhladhla 2nd Respondent


Applicant’s representative:
Mr J Matlala /Ms A Moloto – Legal Representatives

1st Respondent’s representative:
Mr M Zathu - Labour Relations Practitioner
2nd Respondent’s representative: Mr T Monyatsi / Mr Nyawo – Union Representatives

DETAILS OF THE HEARING AND REPRESENTATION
[1] This is an award in the arbitration between Mr Dennies Letebele Diketane, the Applicant, also Diketane, and Department of Education Gauteng, the first Respondent “(also referred to as ‘employer’), and Ms Gloria Ntombizodwa Dhladhla , the second Respondent, also Dlhadhla.

[2] The arbitration was held virtually under the auspices of the Education Labour Relations Council (ELRC) in terms of section 191(5)(iv) of the Labour Relations Act, 1995 as amended (“the Act”) and this award is issued in terms of section 138 (7) of the Act.

[3] The arbitration hearing took place online, on 16 November 2022, 24 January 2023, 21 February 2023, 28 June 2023, 21 July 2023, 26 and 27 October 2023 and 9 February 2024.

[4] The Applicant was present and represented by Mr J Matlala (Matlala), his legal representative, and from 21 July 2023, by Ms A Moloto (Moloto), legal representative.

[5] The first Respondent was represented by Mr M Zathu (Zathu), its Labour Relations Practitioner. The second Respondent was present and represented by Mr T Monyatsi (Monyatsi), her SADTU union representative, and Mr Nyawo (Nyawo) SADTU union representative on 9 February 2024.

[6] Parties agreed to file written closing arguments by the 16 February 2024, same received were considered in the analysis.

[7] The proceedings were digitally recorded.

BACKGROUND TO THE DISPUTE
[8] The Applicant referred an unfair labour practice related to promotion/appointment dispute to the ELRC.

[9] The Applicant is currently employed by the Respondent on level 3, Deputy Principal post at Inkatha KaZulu Primary School.

[10] The Applicant was shortlisted and interviewed for the Inkatha KaZulu Primary School, level 4, Principal post, post number GE11ED1004 advertised in vacancy list 11/2021.

[11] The Applicant disputed procedural fairness of the appointment of the second Respondent for the post by the first Respondent. He challenged fairness of the shortlisting, criteria and interviews and ratification processes, shortlisting criteria, interview scoring; that the SGB ranked him as the first choice and the Respondent appointed the second Respondent, ranked second; claimed that he was the best candidate for the post; and that there was undue influence by the resource person.

ISSUE TO BE DECIDED
[12] I am called upon to determine whether the first Respondent committed an unfair labour practice related to promotion by not appointing the Applicant for the principal post.

[13] If I find that the first Respondent committed an unfair labour practice related to promotion, I must determine the appropriate relief otherwise the referral will be dismissed.

SURVEY OF THE EVIDENCE AND ARGUMENT
[14] For the Applicant’s case, three (3) witnesses were called, and a bundle of documents marked A1-36 was submitted. For the Respondent’s case two (2) witnesses were called and a bundle of documents marked R1-54. The Second Respondent’s case was aligned with the First Respondent’s case.

[15] Challenges during the process with documentation and numbering were corrected by agreement.
Below is the summary of the evidence led.
APPLICANT’S EVIDENCE
First Witness - Mr Dennies Letebele Diketene (the Applicant)
[16] The Applicant testified that he acted in the principal post. He was recommended by the SGB for appointment in the principal position but not appointed.

[17] The resource person, Boloshe, influenced the process until the outcome.

[18] The shortlisting process was unfair. Two males who met the criteria were removed from the list of 5 males who were shortlisted. Boloshe suggested they should be replaced with two women names from the incomplete eliminated forms.

[19] The interview process was flawed. He was told Boloshe did not allow the panel to give input to questions. He came with questions including circulars.
[20] Also, Mrs Manzini read the questions but later someone else read them, which was irregular.

[21] Dhladhla got 120 because she was given the questions by Boloshe. He scored 54 and 2 candidates did not reach 50.

[22] During the ratification Boloshe recused himself and left the SGB and they finalised the ratification alone. As an Institutional Development and Support Officer (IDSO) he did not support the process.

[23] The SGB raised the issue with the director that Boloshe, had a relationship with Dhladhla and did not recuse himself. He worked with Dhladhla for about 7 years, and they went to college together.

[24] He was the best candidate for the post because he was ranked first by the SGB although his interview score was 54 and Dhladhla scored 120. Also based on the qualifications and the way he represented himself in the interviews.

Cross - examination
[25] During cross examination he testified that the interview questions were not fair, they were unclear, if you were not familiar with the circular you would not be able to respond.

[26] Dhladhla was picked from the eliminated list and appointed.

[27] The resource person should have recused himself from the process. He had a special close relationship with Dhladhla went to college together and worked together. He had also known him for about 15 years but was not close to him.

[28] According to Circular 9 of 2020, women should be empowered and put in main positions – but the process must be fair.

[29] Resource person did not guide SGB regarding changing interviewing pane; recommendation.

[30] Procedure per policy / collective agreement violated by panel in presence of dept pers/ Dept was supposed to stop process when violated in terms of process.

[31] Per R13 recommendation, HOD was not supposed to consider final list of panel because the process was fraudulent was supposed to consider how the list was drawn – seems did not consider the minutes-

[32] Relied on minutes to show Dhladhla’s form was incomplete
Second Witness - Ms Sisi Miya (Miya)
[33] Miya testified that she was a secretary in the Inkatha KaZulu school principal post appointment panel. The panel agreed on the shortlisting criteria. They considered the Collective Agreement 2 of 2005 to consider women and employment equity. Some forms were eliminated based on the shortlisting criteria, including looking at incorrectly filled, qualifications, acting in the post, amongst others.

[34] After only males were shortlisted, the resource person asked if it would be proper for them to add females. They agreed and after thoroughly checking the eliminated forms they chose two females, Dhladhla and Sebola. Not just because they were females, but they checked their forms and realised that some parts of their forms were correctly filled and felt they can come back. Sebola’s form was disqualified because she had 24 marks. Dhladhla was disqualified because her form had some parts which were not filled. There were no new criteria set for selecting them from the eliminated forms.

[35] After thoroughly checking two forms were eliminated from the five (5) males shortlisted she could not remember the reasons.

[36] During interviews questions discussion attended by the panel and other representatives the panel asked to include South African Schools Act (SASA) and policy questions. The resource person said SASA and policy questions would lead to general answers. He suggested that the questions should come from policies. The panel agreed that most questions must come from policies.

[37] Dhladhla, Sebola, Diketane, Seme and Maluleke were invited for interviews. The interviewees were scored according to their answers to question. The scoring criteria was scores and deliberation on the performance after each candidate. The scores were counted based on interviewees performance. The panel recommended preference order based on scores.

[38] In the ratification meeting attended by the resource person, all SGB - teacher and parent component, chairperson, secretary, and treasurer, the chairperson gave process feedback.

[39] The SGB recommended Diketane for appointment. The resource person disagreed. He said the panel recommendation was based on scores on performance of candidates and was to be left in that order.

[40] The SGB reasons to recommend Diketane in the Form C were that the school management team (SMT) was currently composed of females which was against gender equity. Diketane was acting in the post and the results were stable, he understood the culture of the school, operational requirements in terms of staff and learners were stable, and he showed confidence when he was answering questions in interviews.

[41] The file and completed form C considering scores and deliberation was submitted to the district office. The district office informed them to collect the file and rectify the Form C and submit a different one because their recommendation was different to the scores, not in line with the regulations. The SGB decided to resend file back with not rectification.

[42] Two meeting were held in District Office where the SGB were called to clarify their Form C recommendation. They gave the reasons stated in the Form C.

[43] The head office, district director, resource manager and the circuit manager, later came to the school to explain HOD appointment of the first candidate on consideration of the performance of the candidates. That the SGB has a right to recommend and the HOD has a right to appoint.

Cross - examination
[44] During cross examination she testified that Dhladhla scored 120, Diketane 54 and Sebola 50.

[45] The shortlisting process was done properly. The equity plan was part of the criteria, hence they had to return some of the forms that were excluded. She does not remember the details regarding the missing details on Dhladhla’s form.

[46] There was nothing wrong in interviews. The Applicant had zeros in some questions because he could not answer.

[47] The ratification process was wrong because what the SGB did by Diketane recommendation was against collective agreement. Boloshe left because the SGB wanted Diketane irrespective of interview outcome.

[48] There were no tools in terms of legislation used to change the ranking during ratification. Some circular was used at the beginning of the process. Union observers were not present on ratification, she did not know they were supposed to be called for changing ranking.

Third witness: Aubrey Mkhonto (Mkhonto)
[49] Mkhonto testified that he was the panel chairperson of the Inkatha KaZulu school principal appointment process. He was well equipped for the role, he attended more than 1 session in the Gauteng East District and several recruitment workshops and it was not his first time participating in appointment and filling of posts.

[50] As the SGB they selected the panel from SGB members to deal with the process. All criteria and questions were set by agreement, he cannot recall details because that happened in 2021.

[51] He signed interview minutes, R7, hey gave motivation for appointment, and he signed as the chairperson based on what was submitted and what was agreed upon.

Cross - examination
[52] During cross examination he testified that in 3 meetings they pleaded with the district director to consider their recommendation. They were told they cannot contradict themselves by placing best performing candidate second. Then Dhladhla was appointed as principal.

[53] In workshops they were informed of gender equity plan that principals were mainly male.

[54] He disputed he had called the meeting of parents but that instead he dispersed them. There was no other dispute which shows that things went accordingly, and they were all in agreement. Hence, they have a principal who is there and will always be there. Parents are happy with the principal and the SGB endorsed the principal appointment.

[55] The panel agreed on having questions including policies / collective agreements because a leader has to rely on those policies. The best candidate appointed scored 120 in interviews. The second candidate, Applicant, scored 54. There were some points where the Applicant was scored zero because he said he was caught off guard, hence he was not appointed. Applicant was given enough time and he never complained that he was not given enough time.

[56] The Applicant was not in the ratification process. The resource person left because he said he was not going to be part of the process of tampering with the scores when they asked him to assist them tamper with the process, after the meeting was adjourned.

[57] The resource person ensured smooth running of processes hence they appointed the principal.

[58] The SGB is not part of the dispute. The Applicant is exercising his constitutional rights.
Re-Exam

[59] They pleaded with the district director to consider the Applicant not about equity but because he was currently acting principal and he had failed on the questions.

FIRST RESPONDENT’S CASE
First witness: Ms Somikazi Chabalala (Chabalala) - District Director
[60] Chabalala testified that after the school completes the recruitment process for principal posts. The district puts an IDSO or cluster leader which is a supervisor of the principal. The HR directorate checks file adherence to policy requirements including equity plan of the department and then taken to circuit for quality control. If in the minutes finds that equity plan not adhered to she writes to SGB and they correct and return or if it warrants a meeting they would meet.

[61] In the Inkatha kaZulu principal post when they received the file saw it had the three recommended candidates. After checking it found highest scoring member was put as second on ratification. The SGB said the candidate they shifted to first place had been working with them and understood culture of the school.

[62] She requested HR to meet with the SGB to indicate variation of policy. The SGB was adamant that was what they wanted. She called another meeting including union observers who were excluded when change was done. She took everyone through the rules and explained at ratification cannot change ranking order without unions. That they can’t not align decision to policy and she guided them in terms of policy. They said that was what they wanted.

[63] She then sent the file to the HOD for appointment decision.

Cross - Examination
[64] She testified that usually there is quality assurance so that there are no forms that are eliminated incorrectly. She disagreed there is an added criteria for elimination and not aware of new criteria to be followed when bringing back eliminated forms. There would be a reason why the panel would bring back eliminated forms. She believes that would be part of quality assurance when there are forms that were erroneously eliminated.

[65] The appointment criteria in terms of the final presentation made by the panel was the one with the highest score.
[66] Scores and deliberation criteria means after their interviews they will score the candidates based on the deliberation and scores. But the scores margin could determine if panel through their deliberations can decide that based on the skills presented by the candidates can appoint one at lower level but not when the margin is high.

[67] Interview questions setting differed from panel to panel, as long as the questions are compiled at the interviews and not brought from somewhere else.
[68] The resource person is a cluster leader, he set in the panel and process for that reason. She did not know that he went to school with Dhladhla.

Second witness: Mongezi Boloshe (Boloshe) - Deputy Chief Education Specialist
[69] Boloshe testified that he was a cluster leader, Deputy Chief Education Specialist in circuit 5 responsible for cluster 1 schools. He was appointed by the district director to be the resource person and member of the panel in the Inkatha kaZulu school principal post appointment.

[70] They jointly agreed on criterion and the process was led by the chairperson, there was no domination of the process. The eliminated forms were checked after Tyakala, who handled elimination, had a lot of eliminated incomplete forms which were found to be erroneously eliminated. R35, eliminated incomplete forms were eliminated because of the part asking about citizen work permit number. The panel agreed on restating the forms erroneously eliminated. Restated Dhladhla’s form was rated, if there was a discrepancy that could have been stated in the minutes.

[71] In interviews, the panel discussed and unanimously agreed on number of question, categories the questions will be based on in terms of the job description. Also that the questions should be taken from SASA, and he supplied the circulars and memos that could be used and assisted with construction of the questions.

[72] The chairperson and all members suggested questions and possible answers, using the circulars, he assisted with sentence construction where necessary. The questions were drafted and printed same day. All candidates were asked the same questions and given the same opportunity to respond.

[73] Per the scores and deliberation on performance criteria, after every candidate, they looked at the time spent, discussed the scores per panel member, and discussed their performance.

[74] The marks were the reflection of the candidates’ performance confirmed by all panellists. The Applicant was not the best candidate, he was rated zero on three questions he did not answer saying he was caught off guard.

[75] The allegations that he favoured Dhladhla because he went to school with her were unfounded. He worked with the Applicant as acting principal at Inkatha kaZulu.

[76] At ratification, after the agenda was read and adopted the chairperson wanted to give a verbal account of what transpired in the meetings. He guided him per Collective Agreement 1 of 2021, and the chairperson read the minutes, members asked questions and clarity was given, the minutes were adopted as SGB minutes, same process was followed with the interview minutes.

[77] After adoption of interview minutes, the SGB deputy chairperson said they were not opposed to what transpired in shortlisting and interviews but requested to have, their person, the Applicant, since he was acting and they were satisfied with him. Miya asked what they can do for the Applicant to be appointed.

[78] He explained that in terms of policy and Collective Agreement 1 of 2021, the SGB cannot change the decision of the panel unless there was something grossly and technically wrong with the process. If they insisted, to change the ranking they must invite the unions and give the reasons.

[79] He then said since the ratification was concluded, it should be minuted that he would not party to what they further wanted to do, and he left the meeting.

[80] In subsequent meeting with the district director, she explained to SGB and the union that according to procedure they could not contradict their own recommendation. They insisted and the submission was processed to the HOD.

[81] The HOD advised that second candidate could not be appointed, in terms of Circular 9 of 2020, for the advertised post in terms of equity women were the disadvantaged group and had to be appointed. Also, that in terms of scoring and motivation, the motivation of the SGB was not based on the performance of the second candidate in the interviews.

[82] The SGB resubmitted their submission to the district director, and it was then processed. The HOD appointed the first candidate, Dhladhla.

[83] The SGB requested circuit office for time to deal with parent problems. The head office public ordinary school directorate in terms of governance intervened. It explained the SGB motivation was unprocedural, and that SGB duty was to recommend not to appoint. For safety purposes, the Applicant started later than the appointment date.

[84] The process was fair, according to stipulations of Collective Agreement 1 of 2021. The SGB and unions involved did not report disputes. Until HR indicated the SGB recommendation was unprocedural.

Cross - Examination
[85] He disagreed he said there were more males. The forms were rechecked for incorrect elimination not for gender equity. There was a score of 39 on Dhladhla’s form as per application form, R17, he does not know why the secretary did not state it.
[86] What is stated in ratification minutes is not what transpired on the day, as reflected in the raw minutes, where they read the raw minutes of shortlisting and interviews.

[87] Per minutes, there was no disagreement, the SGB went ahead to recommend the second candidate.

[88] He had advised them that would be flouting the process.

[89] The reasons were not discussed during his presence in the meeting.

ANALYSIS OF THE EVIDENCE AND ARGUMENT
[90] Section 186(2)(a) of the LRA stipulates that unfair labour practice means 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.

[91] This is a dispute relating to promotion and therefore, my determination will focus on whether there was unfair conduct by the first Respondent against the Applicant concerning procedure of appointing the second respondent instead of the Applicant to the Inkatha KaZulu school principal post.

[92] The Applicant had to demonstrate through evidence and argument that the first Respondent’s conduct in not appointing him to the principal position was unfair. The Applicant also needed to show that such unfairness by the first Respondent falls squarely within the ambit of section186 (2) (a) of the LRA as unfair labour practice relating to promotion.

[93] The Applicant should prove at least three things, namely:
(a) That the dispute concerns conduct by the first Respondent relating to promotion of the Applicant.
(b) That there was unfair conduct on the part of the first Respondent during the promotion process.
(c) That the unfair conduct constituted an unfair labour practice and that he is entitled to the relief he seeks.
[94] In assessing whether this dispute relates to promotion for the purposes of section 186(2)(a) of the LRA, in Malatji v City of Tshwane Metropolitan Municipality and others, the Court held that it is trite that promotion for the purposes of section 186(2)(a) involves a move by an existing Employee to a higher rank or position that carries greater status, responsibility, and authority.

[95] The Applicant is currently employed by the first Respondent as a deputy principal.

[96] The post of school principal at level P4 which the Applicant was shortlisted and interviewed for, had he been successful, carries greater status, high remuneration, responsibility, high-level job security, and authority than the deputy principal post offers.

[97] Given the above, I am satisfied that the dispute is a promotion dispute for the purposes of section 186(2)(a) of the LRA.

[98] Regarding whether the conduct by the First Respondent complained of exists and if found to exist whether it was unfair.

[99] In Pamplin v Western Cape Education Department the Court emphasized 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.

[100] According to Pamplin, 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.
[101] In determining the matter, I consider the issues in dispute.

[102] My assessment from the Applicant’s and the Respondent’s witnesses was that there were criteria set by the panel for shortlisting implemented.
[103] The Applicant’s testimony, that Boloshe advised that two males be removed from the list of 5 shortlisted males and be replaced with two women from the incomplete eliminated forms was corroborated by Miya.

[104] Miya’s testimony though differed from the Applicant’s when she further stated they chose two females, Dhladhla and Sebola, not just because they were females, but they checked their forms and realised that some parts of their forms were correctly filled and felt they can come back. The panel agreed on restating the forms erroneously eliminated.

[105] Which corroborated the Respondent’s rebuttal through its two witnesses, Chabalala and Boloshe. That usually there is quality assurance so that there are no forms that are eliminated incorrectly and that panel would bring back erroneously eliminated forms as part of quality assurance. According to Boloshe, that the forms were rechecked for incorrect elimination not for gender equity.

[106] The Applicant testified that he relied on minutes to show Dhladhla’s form was incomplete, while Miya, could not recall the reasons why the form was incomplete as stated in the minutes.

[107] The Respondent showed that eliminated incomplete forms were due to question about citizen work permit number, and this was corroborated by proof of second respondent form confirming same.
[108] Chabalala’s testimony that there were no added criteria for elimination and criteria to be followed when bringing back eliminated forms, supported by Boloshe claim that this was part of elimination quality control, was not disputed or disproved through any other evidence.
[109] Hence, the argument that the process of removing two males who met the criteria and putting two females who were initially eliminated without following any criteria was flawed and unprocedural by the panel, also fails.
[110] On a balance of probabilities, I found the Applicant did not discharge the onus to show the procedural defect in terms of flawed shortlisting process and criteria. The Respondent’s rebuttal succeeded.

[111] My assessment is that the Applicant’s testimony, that he was the best candidate for the post because he was ranked first by the SGB was not corroborated his witnesses. Mkhonto testified that the SGB pleaded for consideration of the Applicant for appointment because he was currently acting principal and he had failed on the questions. The Applicant acknowledged that his interview score was 54 and Dhladhla scored 120.

[112] Miya also did not corroborate the Applicant’s testimony that he was the best candidate. She testified that he scored 54 and Dhladhla scored 120 in terms of performance in interviews. That the reasons the SGB recommended him related to acting in post, understanding school culture and operation requirement in terms of staff and learners, stable results, and showing confidence when answering questions in interviews.

[113] On rebuttal Chabalala also confirmed the SGB shifted the Applicant to first place due to having worked with him and his understanding of the school culture. However, scores and deliberation criteria meant after their interviews they will score the candidates based on the deliberation and scores. Based on scores margin panel through their deliberations could decide that based on the skills presented by the candidates can appoint one at lower level but not when the margin is high. That in this case the Applicant could not merely be shifted to first place and highest scoring person be second. Boloshe corroborated Chabalala’s testimony that the Applicant was not the best candidate and testified that the SGB was advised that its recommendation was not procedural and they insisted with it.
[114] I could not find in what way the Applicant showed he was the best candidate in the manner he presented himself in the interviews. It was not disputed he did not answer three questions and all panellists scored him zero and that he scored 54 which was less than the 120 highest scored candidate, huge margin. Neither was it shown how the Applicant’s qualifications were better than the Applicant’s.
[115] I found the Applicant did not discharge the onus to show on a balance of probabilities that he was the best candidate. The Respondent’s rebuttal succeeded.

[116] It was common cause that the SGB ranked the Applicant as the first choice and the Respondent appointed the second Respondent. It was not in dispute that the HOD per R13,14 did not approve SGB recommendation and stated district director reasons that he was male, no 2 with a difference of 50 from no 1 highly scored candidate, SGB flouted the policy by changing the recommendation of the panel without substantiated reasons, also that appointment was based on equity as well as candidates performance as shown by scores.
[117] The Applicant’s witnesses in the main did not corroborate his contention that the HOD was not supposed to consider final list of the panel because the process was fraudulent. Also, that the resource person did not guide SGB regarding the process to change interviewing panel recommendation.
[118] Miya testified that the shortlisting and interview processes were done properly. The ratification process was wrong because what the SGB did, recommending the Applicant was against collective agreement 2 of 2005, they did not follow the process. Boloshe left the process because the SGB wanted Diketane irrespective of interview outcome.
[119] Mkhonto testified that in meetings regarding SGB recommendation of the Applicant they were told they cannot contradict themselves by placing best performing candidate second. The resource person ensured smooth running of processes hence the principal was appointed. That the SGB was not disputing the appointment.
[120] Regarding the Applicant contention that according to Circular 9 of 2020, women should be empowered and put in main positions but the process must be fair. Miya testified that the equity plan was part of the criteria. Mkhonto testified that in workshops they were informed of gender equity plan that principals were mainly male.
[121] On rebuttal the Respondent’s witnesses testified that the SGB was informed in meetings that their recommendation was not in line with the policy. Also told same in meeting including union observers who were excluded when change was done and rules and process was explained. Also that Boloshe explained ranking could not be changed at ratification without following due process and made in absence of unions. This was corroborated by the Applicant’s witnesses.
[122] Considering the meetings were also acknowledged by the Applicant’s witnesses, I could not find the Applicant these were ‘Kangaroo meetings’ part of a flawed and unprocedural process as alleged. However, as shown they were meant to guide the SGB in terms of their recommendation.
[123] I considered the evidence before me in its entirety, and also note the provision 15.2 in Collective Agreement no 1 of 2021 on recruitment and placement procedures for educators at schools. That, ‘If the School Governing Body does not agree with the recommendation of the interview committee for proven valid reasons, the School Governing Body must refer the matter back to the interview committee, which includes observers, to review their decision. The School Governing Body may not make decisions and/of compile a preference list on behalf of the interview committee’.
[124] In the circumstances, I could not find the Applicant discharged the onus to show on a balance of probabilities that the first Respondent appointment of the second Respondent whereas he was ranked first choice by the SGB amounted to procedural unfairness. Neither that the Applicant showed on a balance of probabilities there was incorrect application of equity regarding the appointment to his disadvantage. Nor flawed interview or ratification process.

[125] The applicant contention that Boloshe dominated the processes was not confirmed by the SGB panelists who were in the process as both Miya and Mkhonto, his witnesses, testified that was not the case. They testified that all decisions were taken by agreement including in terms of criteria and interview questions. Also that the interview process, questions and scoring and shortlisting were fair.
[126] On rebuttal, Boloshe denied allegations he dominated process and favoured the second respondent because he went to school with her and worked with her. he testified that he also worked with the Applicant as acting principal and that he worked with the second respondent. Chabalala testified that Boloshe’s role in the panel was as cluster leader, she was not aware of his relationship with the second respondent.
[127] The Applicant bore the onus to show on a balance of probabilities that there was undue influence by the resource person on appointment processes as alleged. Based on the evidence before me, I could not find that he discharged the onus to prove on a balance of probabilities there was undue influence by the resource person that impacted the shortlisting, interviews and ratification process.

[128] Therefore, I could not find on a balance of probabilities that the Applicant showed there was unfair conduct relating to procedural fairness of the appointment of the second Respondent for the post by the first Respondent.
[129] In City of Cape Town v SAMWU obo Sylvester and others (C1148/2010) [2012] ZALCCT 40; (2013) 34 ILJ 1156 (LC); [2013] 3 BLLR 267 (LC) (handed down on 7 September 2012) it was held, with reference to the Arries judgment (supra), that the overall test is one of fairness. In deciding whether the Employer acted fairly in failing or refusing to promote the Employee it is relevant to consider the following:
a) whether the failure or refusal to promote was caused by unacceptable, irrelevant, or invidious consideration on the part of the Employer; or
b) whether the Employer’s 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 Employer’s decision not to promote was motivated by bad faith;
e) whether the Employer’s decision not to promote was discriminatory;
f) whether there were insubstantial reasons for the Employer’s decision not to promote;
g) whether the Employer’s decision not to promote was based upon a wrong principle; and
h) whether the Employer’s decision not to promote was taken in a biased manner.
[130] I also note that in Provincial Administration Western Cape (Department of Health & Social Services) v Bikwana & others (2002) 23 ILJ 761 (LC) paragraph (29)-(32) the Labour Court held that: There is considerable judicial authority supporting the principle that courts and adjudicators will be reluctant, in the absence of good cause clearly shown, to interfere with the managerial prerogative of employers in the employment selection and appointment process. Courts should be careful not to intervene too readily in disputes regarding promotion and should regard this area where managerial prerogatives should be respected unless bad faith or improper motive such as discrimination is present.
[131] I have considered all the factors above and based on the evidence before me, I could not find that the Applicant discharged the onus to prove that he was subjected to unfair labour practice related to promotion as contemplated in terms of s186 (2) (a) of the LRA.

I therefore make the following award:
AWARD
[132] The first Respondent, Department of Education Gauteng, did not commit an unfair labour practice relating to promotion as contemplated in terms of s186 (2) (a) of the LRA by not appointing the Applicant, Mr Dennies Letebele Diketane, to the position of Principal at Inkatha KaZulu Primary School.
[133] The referral application is dismissed.

Thus, done and signed at Johannesburg on 4 March 2024.

ELRC PANELIST
LUSANDA MYOLI