ELRC531-22/23KZN

IN THE ELRC ARBITRATION
BETWEEN:
NUPSAW obo THEMBA STEVEN NDLOVU “the Applicant”
and
DEPARTMENT OF EDUCATION – KWAZULU NATAL “the 1st Respondent”
MAKHANYA, T “ the 2nd Respondent”

ARBITRATION AWARD

Case Number: ELRC531-22/23 KZN
Date of the award: 20 June 2024
ELRC Arbitrator: Lindiwe Makhanya
Education Labour Relations Council


DETAILS OF HEARING AND REPRESENTATION

1. This arbitration commenced on 30 May 2023, and after several sessions was finalised on 10 June 2024 at the Respondent’s premises, Durban Teachers Centre. It was held under the auspices of the Education Labour Relations Council (“the council”) ELRC in terms of section 191(5) (a) of the Labour Relations Act No.66 of 1995, as amended (“the Act”).

2. The Applicant, Mr. Themba Steven Ndlovu, was represented by Mr. N. Nyandu, Union Official from NUPSAW. The second Respondent, Mr. Themba Makhanya was represented by Mr. X. Dube, Union Official from SADTU, and the first Respondent, Department of Education-KwaZulu Natal, was represented by Mr. I. Makhooe from the Labour Relations department. The proceedings were digitally recorded.

PRELIMINARY ISSUES, JURISDICTION, and ISSUES TO BE DECIDED

3. No jurisdictional issues were raised.
4. I have to decide whether or not the first Respondent committed unfair labour practice by not appointing the Applicant.
5. The Applicant sought to have the second Respondent's appointment set aside or, alternatively, to be offered protected promotion.

BACKGROUND TO THE DISPUTE

6. The first Respondent is the Department of Education located in Durban, KwaZulu Natal. The Applicant commenced his employment with the first Respondent in February 1991 as a Deputy Principal. He applied for the position of Principal at Zakhele Primary School, post no. 115, as advertised in HRM Circular no. 05 of 2022. Despite meeting the minimum requirements for the post, he was not shortlisted. The second Respondent was shortlisted and subsequently appointed to the Principal position.

SURVEY OF EVIDENCE AND ARGUMENT

7. The first Respondent presented a bundle of documents marked "B," while the Applicant presented a bundle of documents marked "A." Both parties submitted their written closing arguments on 18 June 2024.

THE APPLICANT’ CASE

8. Mr. Steven Themba Ndlovu testified under oath that he commenced employment with the first Respondent in February 1991. In 2022 he applied for the position of Principal, post number 115. He referenced pages 1 to 5, which include the application form Z83, and his Curriculum Vitae (CV) submitted with his application. His application form detailed teaching experience across various schools, ranging from level one to level four.

9. He directed attention to page 2 of "Bundle A," where his qualifications are detailed. He held an Honours Bachelor's in Education from 2007, a Further Diploma in Education from 2002, and a Diploma in Education from 1999. Additionally, he possessed a matric certificate obtained in 1988. He had 31 years of experience as an Educator. According to the Applicant, he was more qualified than the second Respondent as the latter only possessed a national diploma in teaching.

10. Both he and the second Respondent served as Deputy Principals at Zakhele Primary School.

11. He was not shortlisted, alleging that the first Respondent denied him an interview opportunity due to his non-membership in SADTU. During the shortlisting process, a meeting was convened by Mr. Sosibo, SADTU Observer, along with the second Respondent and Mr. Nhlapho, Site Steward, SADTU. Mr. Sosibo advocated for the shortlisting of two candidates from within the school, but the second Respondent expressed doubt regarding the Applicant's SADTU membership status.

12. Prior to the advertisement of the position, he encountered several challenges with the School Governing Body (SGB), which aimed to obstruct his participation in the Principalship position.

13. During the shortlisting process to select the final five candidates, the Interview Committee (IC) is required to convene in the presence of observers. The IC formulates criteria to guide the SGB in adhering to the procedure. The criteria may be expanded, such as requiring a higher national diploma in teaching or a higher qualification.

14. He served as Acting Principal from 2007 to 2008. According to policy, individuals who have acted in a position for more than 12 months are automatically eligible for shortlisting, and this provision allows for more than five candidates to be considered.

15. Referring to a document in "Bundle A," specifically on page 13, a letter addressed to Zakhele Primary School, he contended that the SGB was nullified and lacked the authority to make appointments. Remarkably, the same SGB oversaw the recruitment process for the contested position.

16. He referenced pages 2, 14, and 16 to 19 of "Bundle B," which contain certificates for the second Respondent. He argued that these certificates, being certificates of attendance, should not have been considered during interviews as they did not contribute to qualifications.

17. The documents submitted by the first Respondent did not provide any evidence to demonstrate that the second Respondent was the most suitable and qualified candidate. He requested that the entire recruitment process for the appointment of the second Respondent be nullified.

18. During cross-examination, he acknowledged that the second Respondent met the minimum requirements for the position in question. He also acknowledged that candidates who possess higher qualifications can be outperformed by candidates with lower qualifications during the recruitment process.

19. He mentioned having a pending disciplinary inquiry at the time of applying for the position, as indicated on page 1 of the Z83 form. When questioned about why he marked "yes" but also wrote "not applicable," he explained that there was insufficient space on the form for him to elaborate.

20. From April 1, 1992, to February 2011, he worked as an educator, also undertaking stocktaking duties at Game Store. Additionally, between April 1994 and December 2010, while still employed as an educator, he worked at the IEC during election periods.

21. When asked about his teaching experience at Mqamathi High School, he explained that during his tenure, the Principal was facing charges, leading to his invitation to act as the Principal. However, he later returned to Mahlahlala School at level 3 when the original Principal resumed duties. He mentioned being promoted to Level 4 with the expectation that the Principal would not return, effectively acting as the Principal during this period.

22. When questioned about his assertion regarding the SGB being unlawful, he was challenged, stating that only the Head of the Department could declare the SGB invalid. However, he did not provide a specific response.

23. He acknowledged having numerous certificates beyond his qualifications but admitted to not including them with his application for the position.
24. During re-examination, he maintained his position that the SGB was unlawful, despite not being disbanded.

25. Mr. Mandla Wiseman Nhlapho testified as the Site Secretary of SADTU. He recounted being asked by Mr. Sosibo about the number of candidates to be shortlisted from Zakhele Primary School, to which he responded with two. He then overheard the second Respondent remarking that there was only one SADTU member at the school. Sosibo suggested shortlisting two candidates from Zakhele School so that if one did not secure the post, the other could, instead of an outsider. He then raised the names of the Applicant and the second Respondent.

26. During cross-examination, he clarified that his role in the interview process was that of a union secretary, and he recommended two candidates as an observer.
27. He admitted to not playing any direct role in the interview process.
28. There was no re-examination.

THE RESPONDENT’S CASE

29. Ms. Hyacinthia Nonhlanhla Msomi testified under oath that she had been employed as an Acting Circuit Manager since October 2021. During the interview process for the position in question, she served as a resource person.

30. She contested the assertion that the IC would introduce a higher qualification as a criteria during shortlisting to eliminate other candidates. She explained that while the bulletin had its own stipulations, the IC formulated its criteria based on each school's specific needs.

31. She clarified that only the higher office had the authority to disband the SGB. Her role as a resource person during the interview process was to verify if the IC members were duly elected.

32. She refuted the existence of a "temporary promotion," disputing the Applicant's claim that he was promoted temporarily and later returned to a lower position.

33. The CV was deemed a marketing tool, and she argued that the Applicant could not fault the second Respondent for submitting all his qualifications when the Applicant did not do so.

34. The Applicant's non-shortlisting was attributed to the criteria formulated on that day and the presentation of his CV. The Human Resource Management (HRM) policy allows for five candidates to be shortlisted, but this can extend to six if the individual has been acting in the position for more than 12 months. Such a person is automatically eligible for shortlisting in that post when they apply.

35. In cross-examination, she maintained that she was not a part of the IC but rather served as a resource person. She clarified that while the process of shortlisting involves setting criteria, she was not involved in that aspect; it was the responsibility of the IC. Her role was to provide guidance to the panel. The discussion on shortlisting criteria was intended for individuals familiar with the area's dynamics.

36. When questioned about how the issue of dynamics was communicated to the prospective appointee at the school, she explained that the IC was seeking a candidate capable of effectively managing the school but her role was simply to guide the IC.

37. When asked about the second Respondent's score during the shortlisting process, she clarified that she did not score any of the candidates.

38. When questioned about why the Applicant, who had acted in the position for more than 12 months during 2007 to 2008, was not shortlisted, she explained that the Human Resource Management (HRM) policy referred to acting for more than 12 months in the post being advertised.

39. There was no re-examination.
40. Ms. Adrianah Nelisiwe Khanyile was employed at Udumo primary school as Departmental head. She was invited to the recruitment process as an observer for NATU. Mr. Sosibo, the observer for SADTU, had passed away; however, he had been present at the previous arbitration and was prepared to testify. According to her, there were no irregularities in the recruitment process for the position in question.

41. During cross-examination, she noted that CVs were numbered before being shortlisted, and ultimately, five candidates were shortlisted. When asked about the reasons for not shortlisting the Applicant, she stated that she was unable to respond to the question.
42. There was no re-examination.

ANALYSIS OF EVIDENCE AND ARGUMENT

43. I have taken note of section 186(2) of the Act, which states that an “unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving-
(a) the unfair promotion of an employee. I read this section together with section 185 (b) of the Act which states as follows; “Every employee has the right not to be: (b) subjected to unfair labour practice.

44. The applicant bears the onus to prove that he was subjected to an unfair labour practice related to promotion.
45. It was common cause that the Applicant applied for the position of Principal at Zakhele Primary School but was not shotlisted for the interviews. It was also common cause that both the Applicant and the second Respondent met the minimum requirements of the position advertised.
46. It was disputed by the first Respondent that the SGB was not properly constituted.

47. The Applicant contended that the School Governing Body (SGB) was not properly constituted, citing a letter addressed to Zakhele Primary School that purportedly nullified the SGB. This claim was disputed by the first Respondent, who asserted that only the Head of Department had the authority to disband the SGB, a point that the Applicant did not challenge. Additionally, while the Applicant presented the letter, he failed to bring its author to testify. Consequently, the Applicant's evidence is not accepted, and I therefore find that the SGB was properly constituted.

48. The first Respondent, in its opening statement, submitted that the Applicant was not shortlisted because only five candidates could be shortlisted, and the Applicant did not meet the threshold. The Applicant contended that he met the minimum requirements for the position, having 31 years of experience as an Educator.

49. The first Respondent claimed that if an individual had acted in the advertised post for less than 12 months, only five candidates would be shortlisted, whereas acting in the post for more than 12 months would automatically qualify them for shortlisting. While the second Respondent was shortlisted, no evidence was presented to suggest that he had acted in the advertised position for more than 12 months. Therefore, it remains unclear why the Applicant, despite meeting the minimum requirements, was not shortlisted.

50. The evidence provided by Msomi, who served as a resource person, did not assist in this arbitration. She mentioned that the shortlisting process involved setting criteria on the day, which included selecting an individual familiar with the area's dynamics and capable of effectively managing the school. However, during cross-examination, she clarified that she was not part of the IC and her role was limited to providing guidance on procedural issues..

51. The first Respondent did not call any witness from the IC to provide evidence regarding the criteria used in the shortlisting process that excluded the Applicant, despite him meeting the minimum requirements for the post. As Msomi testified, she was not part of the IC and did not participate in formulating the shortlisting criteria

52. The first Respondent questioned the Applicant about his Z83 form, noting that he had marked both "Yes" and "Not applicable" regarding a pending disciplinary record. The Applicant explained that there was insufficient space to elaborate. It remained unclear if the first Respondent's case was that the Applicant was not shortlisted due to his ambiguous response on the form.

53. The first Respondent also questioned the Applicant about his previous employment at Game Store and IEC, as well as his work experience at Mqamathi High School, disputing his claimed promotion. Despite this, it was undisputed that the Applicant met the minimum job requirements. Furthermore, the second Respondent had been shortlisted and interviewed despite never having acted as a Principal before. The first Respondent also criticized the Applicant for not submitting additional certificates when applying, suggesting he undersold himself in the interview. However, additional certificates were not part of the required criteria, and since Msomi was not part of the IC, this argument is rejected.

54. According to HRM Circular No. 5 of 2022, an Educator with seven years of actual teaching experience was required, and the Applicant had 31 years of experience. The first Respondent should have provided reasons for not shortlisting the Applicant, which it failed to do.

55. The process employed by the first Respondent during the recruitment was deemed unfair, as evidenced by its failure to produce a member of the IC who could have clarified the criteria used in the shortlisting process.

56. It is trite law that an employee who complains that the employer’s decision or conduct constitutes an unfair labour practice must first establish the existence of such decision or conduct. If that decision or conduct is not established, that is the end of the matter. The Applicant succeeded to prove that he was subjected to unfair labour practice by the first Respondent when he was not shortlisted.

57. While the Applicant has demonstrated unfairness in the recruitment process by the first Respondent, he was unable to establish that he was the best candidate among all candidates who took part in the same process. Merely claiming to have higher qualifications than the second Respondent was insufficient to prove that he would have been the best candidate after the interview process. Thus, he could not substantiate a claim for substantive unfairness. However, the first Respondent's actions during the recruitment process indicate procedural flaws in the shortlisting process.

58. Section 193(4) of the LRA stipulates 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-emploment or compensation.

59. Based on all the evidence presented and taking into account ELRC Collective Agreement No 3 of 2016, for procedural unfairness, one month compensation is justifiable.The Applicant is currently earning R47,011.25. per month.

60. I, therefore, make the following award:
AWARD
61. The first Respondent committed an unfair labour practice as provided in section 186(2)(a) of the LRA in that it acted in a procedurally unfair manner when it did not shortlist the Applicant.

62. The first Respondent is orderd to pay the Applicant R47,011.25 by no later than 31 July 2024.

63. The amount referred to in paragraph 62 to be paid into the Applicant’s bank account.

64. In respect of substantive fairness,the Applicant failed to discharge the onus placed on him.
65. The appointment of the second Respondent is not set aside.


LINDIWE MAKHANYA
PANELLIST