ELRC387-23-24KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN RICHARD’S BAY

Case No ELRC 387-23-24 KZN
In the matter between

MAWELA FREEMAN THAMSANQA Applicant
and
DHET 1st Respondent
SADTU OBO SITHEMBISO COLLEN MAKHANYA 2nd Respondent

ARBITRATOR : AS Dorasamy
HEARD : 28 29 FEBRUARY 2024
DATE OF AWARD : 13 MARCH 2024
SUMMARY : Labour Relations Act 66 of 1995 – Section 186(2) (a) - alleged unfair
conduct related to promotion

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1 This matter was set down for arbitration on the 28 and 29 February 2024. The evidence was completed at the uMfolozi TVET College offices in Richard’s Bay. This matter was under the auspices of the Education Labour Relations Council (ELRC). The applicant Mr Mawela Freeman Thamsanqa.represented himself and Mr Thabani Makabongwe Mhlongo represented the employer, first respondent and Mr Ndumiso Majozi of SADTU represented Mr Sithembiso Collen Makhanya (appointee). The parties were to submit written closing arguments by the 6 MARCH 2024. The party’s submissions and the applicable provisions of the applicable circulars relating to promotions/appointments were considered when I arrived at my decision.


THE ISSUE IN DISPUTE
2 I am required to determine whether the 1ST respondent committed any unfair labour practice in not promoting the applicant to the post in question Campus Manager at Nkandla Campus, Post Number 2019/090 and dependent thereon the appropriate relief may be determined.

THE BACKGROUND TO THE DISPUTE
3.1 The applicant applied for the post, but was the third ranked candidate for the acting post.
3.2. Mr Sithembiso Collen Makhanya was appointed to the post. The applicant prays that the appointment be set aside and he be compensated.
The respondents oppose the relief sought by the applicant.
3.3. All documents referred to had been made available to the parties at arbitration. The markings of the documents were standardised with the parties at the arbitration.

APPLICANT’S (EMPLOYEE) OPENING STATEMENT
4. The applicant is aggrieved and requires the first respondent to compensate him. He disputes the post being an acting post.

FIRST RESPONDENT’S OPENING STATEMENT
5. The first respondent contends that the applicant was appointed as acting Campus Manager at Nkandla campus for the period 1 October 2021 to 31 May 2022. He accepted the offer of the acting position and he was appointed and the contract was coming to an end. He queried the reason for the post not being filled on a permanent basis. The employer reminded him that it was an acting post.

6. His union SADTU enquired about the issues. There was a meeting between SADTU and the employer. It was agreed that the post was an acting one and the union was satisfied with the response.

7. There was a request from SADTU to consider the extension of the acting position for the applicant and it was extended to the 31 March 2022. Then the employer advertised the post on a permanent basis. He applied for the post and was not short listed for the post.

8. Mr Makhanya was appointed to the post.
9. The applicant referred the matter to various bargaining councils that were later withdrawn by him.

SECOND RESPONDENT’S OPENING STATEMENT
10. The appointee did not apply for the acting post 2019/090.
11. The appointee received a letter of appointment for the post under post reference UNF/029/07/2021 NC signed by the DDG at Head Office.
12. Mr Makhanya is to remain in his post because the process was free and fair.

SUMMARY OF EVIDENCE AND ARGUMENT
EVIDENCE ON BEHALF OF THE APPLICANT
THE SALIENT ASPECTS OF THE EVIDENCE ARE RECORDED BELOW.

MR FREEMAN THAMSANQA MAWELA
Mr Mawela testified to the following effect:
13. He is aggrieved by the way he was treated by the employer. He believes it was an unfair labour
practice by the employer in respect of the Campus Manager’s post at Nkandla campus, post number
2019/090.

14. His concern is the use of the word acting campus manager and does not know where it comes from
because he applied for the Campus Manager’s post and not the acting post. The advert itself that
the post was permanent like all other posts that are advertised.

15. When he applied and was appointed, he received the contract of appointment and he thought it was
a permanent position.

16. He was not happy that he was informed that it was an acting position. No one told him it was an
acting position. He should have been called by the employer and the type of employment should
have been explained to him. He enquired from the employer what informed the employer to convert
the position from permanent to acting.

17. He looked at the appointments in the two campuses and was informed that they were ministerial
projects. The employment of staff in the two campuses were different and were ministerial projects.

18. Most employees are paid by the College Council and given a top up by the College Council. The
employment of staff was not similar to the rest of the College.

19. After he was told to leave the campus, he got sick.
20. The matter was discussed with SADTU who represented him. There was a meeting in
Pietermaritzburg between SADTU and management to find a way forward. The delegation from
SADTU was happy with management. The unfortunate part of the matter was that he was not asked
to attend that meeting. He is still a SADTU member.

21. The second advert at Nkandla was when he was at the campus and he was the campus manager
when it was advertised.

Under cross-examination by the First Respondent, he stated that:
22. The post was advertised in 2019

EVIDENCE ON BEHALF OF THE FIRST RESPONDENT
THAMSANQA EMMANUEL NXUMALO
The salient aspects of his testimony are recorded below.
23. He is DP corporate services and is responsible for overseeing the HR and Marketing.

24. The applicant applied for the acting post. He did not get the post. Mrs Zulu assumed duties and
then she asked to go back to her old position and they were forced to place the applicant in the
position. The applicant signed a fixed term contract. His contract was extended.

25. His post level was level one and was in an acting capacity. There was no unfair labour practice
against him. He was fortunate that the appointable person did not take the post.

Under cross examination by the, applicant he stated as follows:
26. He was not the successful candidate for the post. He was number three and was given an acting
allowance and not a permanent post.
27. The post was never permanent. He accepted the extension of his contract and if he was permanent
there no need for extension. He was asked to go back to level one and he knew he was the acting
campus manager. This was explained to him.
28. He knew that Mrs Zulu was the successful candidate when she moved out.
29. In his application for the permanent position he recorded that he was the acting Campus Manager.

CLOSING ARGUMENTS
30. The parties submitted written closing arguments that were considered in arriving at my decision.




ANALYSIS OF EVIDENCE AND ARGUMENT
THE RELEVANT LEGAL PRINCIPLES
31. In Noonan v Safety and Sectorial Bargaining Council and Others [2012] 33 ILJ 2597 (LAC) it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice.
If the employee is not denied the opportunity of competing for a post then the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.

32 It is trite law that the courts will only interfere with the employer’s decision if it is grossly unreasonable.

33. The following are recorded for completeness:
Promotion: Procedural Fairness
• Do not be overtly technical in respect of procedural irregularities
• We do not go digging to try and find points to frustrate the appointment of suitably qualified
persons.
Promotion: Substantive Fairness
• Very difficult to prove
• Applicant must prove he/she was the best of ALL the candidates who applied for the post
taking into account all these factors:
• Qualifications and experience as per CV’s
• Performance during interviews
• Subjective impressions made during interviews
34. In the final interviews, the Interview Committee recommended that Mr Sithembiso Collen Makhanya be appointed to the post. This was done. The appointment was not arbitrary or motivated by an unacceptable reason. He met the requirements for the post while the applicant did not meet the requirements for the post. The decision can be rationally justified, and therefore I do not believe that there are any justifiable reasons to interfere with the decision to appoint him to the post.

APPLICATION OF THE LAW TO THE FACTS
35. The promotion process of the respondent the Department of Higher Education is regulated by the Recruitment and Selection Policy and collective agreements. The stakeholders in the education sector continuously appraises the procedure manuals and where necessary amendments are effected.
36. The applicant misunderstood that the post was permanent knowing that a highest placed candidate did not accept the post. Mrs Zulu initially accepted and then relinquished her post. Therefore he has not submitted reasonable or sufficient grounds that the appointment of Mr Makhanya should be set aside.
37. As a consequence of the above the application must fail.

AWARD
38.1 The application is dismissed.
38.2. The appointment of Mr Sithembiso Collen Makhanya is hereby confirmed.

DATED AT DURBAN ON THIS 13th DAY OF MARCH 2024.


A S DORASAMY (ARBITRATOR)