IN THE ELRC MATTER
BETWEEN:
Thamsanqa Cyprian Simamane “the Applicant”

and

The Department of Higher Education &
Training (KZN)
“the First Respondent

Ms U Marwexu “the Second Respondent”

Arbitration Award

Case Number: ELRC 703-23/24 KZN

Dates of hearing: 15:10:2024; 28:10:24; 31:01:25
Date of Award: 18th February 2025

U Patel
ELRC Arbitrator

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 the hearing and the representation

1. The hearing was held over three days on the 15th October 2024, the 28th October 2024 and the 31st January 2025.
2. The Applicant Mr. Thamsanqa Cyprian Simamane was initially represented by his attorney Ms. Saresha Govender from the firm of FAM Attorneys. He was thereafter represented by a candidate attorney, Ms. Funeka Madadase from the firm of Thokoza Sibusiso Xulu Attorneys, in the second hearing and in the third and final hearing, the Applicant was represented by Mr Richard Donachie from the firm of Henwood, Britter and Caney Attorneys.
3. The Respondent was represented by Mr Lungisane Hlabe, who is the Assistant Director of Labour Relations of the Respondent.
4. The Second Respondent Ms U Mrwexu was represented by Mr Sanas Mvelase from the trade union SADTU but soon excused herself from the hearing after it became clear that the Applicant was no longer seeking appointment to the position but was now seeking compensation as relief.

Issue To Be Decided:

5. I am required to decide whether the Respondent committed an unfair labour practice by failing to promote the Applicant in accordance with Section 186(2) of the Labour Relations Act No 66 of 1995, as amended (“the LRA”). Should I find that the Applicant was unfairly not promoted to the position by the Respondent, then I am required to order appropriate relief in accordance with Sections 193 and 194 of the LRA.

Background to the issue:

6. The Applicant was employed by the Respondent as a lecturer at Umgungundhlovu TVET College since 2018. Prior to this, he worked for the Respondent on two fixed-term contracts, initially as an educator and then as a lecturer at another TVET college.
7. He started work in his current permanent position in 2018. He lectured in maths literacy under the business unit as a P1 lecturer and earned a monthly salary of R29009.75.
8. The Applicant applied for a promotion to the position of a senior lecturer (PL2) in August 2022.
9. The Applicant then discovered that he was not short-listed and was unhappy about this.
10. The Applicant lodged an internal grievance at the college and being dissatisfied with the outcome and the process in which his grievance was handled, the Applicant then appealed to the office to the office of the Director-General of the Department of Higher Education & Training (DHET) him that the panel had erred in not short-listing him and that they were unable to start the recruitment and selection process again as someone else had already been appointed to the post.
11. The Applicant therefore believes that the Respondent had committed an unfair labour practice in relation to his promotion and initially asked for the recruitment and selection process to be re-started but has changed his mind and now seeks the maximum compensation of 12 months.
12. The above facts are all common causes.

Survey of evidence and argument:

13. The parties submitted bundles of documents that were accepted in evidence; the Applicant’s bundle was marked “A1” and the Respondent’s bundle was marked “R1”
14. The Applicant’s testified on his own behalf as follows and there were no further witnesses.

• The Applicant confirmed that he was a P1 lecturer and taught maths literacy under the business unit.
• In his application for the promotion to the post of senior lecturer P2, he submitted a Z38 form, his curriculum vitae and his qualification
• He discovered that he was not short-listed when he heard that others had been invited to an interview.
• He enquired from human resources as to the reason why he was not short-listed and was informed that it because he had submitted an expired driver’s license. The Applicant tried to explain why he submitted an expired driver’s license but nothing significant turns on this but he agreed that he submitted an expired license.
• The Applicant submitted that he was unhappy with answers he received from the College for failing to short-list him and that the process followed was not in accordance with proper process in terms of the internal recruitment policy and the Department of Higher Education and Training Circular 19 of 2022.
• He then escalated the matter to the DHET and after investigating, the Department informed him that the short-listing was incorrect but that someone else had already been appointed to the position. The Applicant thus believed that the Respondent had acknowledged that he had been unfairly treated, and the investigation confirmed that his grievance was substantiated; that the panel had “erred” in not short-listing him. This letter from the DHET was signed by Dr Sishi who is the Director-General of the DHET who head all the colleges. (see “A1” – Applicant’s bundle).
• A candidate was appointed to the position while his grievance with the Director -General – was still pending.
• In cross-examination, there was argument between the Applicant and the Respondent’s representative over the issue of a valid license and that the Applicant’s license had expired was only valid for the period 11:10:2012 until 12:10: 2017
• The Applicant was again referred to the Department of Public Service Administration (DPSA) circular which is a policy or guideline as compared to legislation in a government gazette. However, the Applicant maintained that he had followed policy when he submitted Form Z83 and his curriculum vitae together with his certificates.
• When asked to clarify who his employer is the Applicant confirmed that he understood the DHET to be his employer as the College fell under the DHET.
• The Applicant further confirmed that although he was initially seeking the process to re-start, he was now seeking 12 months’ compensation.
• In re-examination the Applicant clarified that Circular19 of 2022 required that only short-listed candidates need submit qualification and other documents and that initially all that was required to be submitted was the Z83 form and qualifications. – – The Applicant believed that he was qualified for the post that he had applied for as he met the minimum requirements and was “eligible and competent” and could teach the subjects that were required to be taught.
• The Applicant confirmed that it was the letter from the Director-General stating that there was an error in short-listing him that had brought him to this stage in this dispute – this showed that he had been unfairly treated due to incompetence on the Respondent’s part.

The Respondent’s Submissions:

15. The Respondent submitted that the Applicant had not been unfairly treated and that the reason why he was not shortlisted was his failure to submit a valid driver’s license which was clearly a requirement in the advertisement for the position which required driving to other colleges ; the Applicant was informed of the reason as to why he was not short-listed. The Respondent thus believed that it had not acted unfairly as a valid driver’s license was a minimum requirement for the position. In addition, number 31 of the National Road Traffic Act No 93 of 1996, states that an unlicensed driver is not permitted to drive a motor vehicle or be employed. (Respondent’s Bundle 2, page 31).
16. The Applicant had not informed the College when he escalated the grievance to the DHET as it had not been copied on his letter. The DHET also did not send the letter informing the Applicant of the outcome of the investigation and that it had found that there was an error in not short-listing the Applicant.
17. The Respondent referred to DPSA Circular 19/22 at paragraph 3.2 which states that applicants are not required to submit copies of qualifications and other relevant documents when applying but must submit the Z83 and detailed curriculum vitae and the response from the DHET informing the Applicant that “the investigation revealed that his grievance is substantiated, and the short-listing panel erred by not short-listing him”. However, this was not what the Applicant was aggrieved about as he had complained about Mr. Stuart and Mrs. Singh being panel members but the reason why he was not short-listed was due to his invalid driver’s license.
18. The respondent referred to the cases of Buffalo City Public FET College v CCMA and others(P372/12) (2016) ZALCPE 18 (handed down on 4 November 2016, where the court held that in promotion disputes the Employee/Applicant bears the onus to prove that s/he is the better candidate for the position ; and referred to the cases of SAPS v Safety & Security Sectoral Bargaining Council & Others [2010] 8 BLLR 892 (LC) and Provincial Administration Western Cape (Department of Health and Social Services) v Bikwani and Others (2002) 23 ILJ 761 (LC) where the court confirmed that the decision as to whether to promote or not falls under managerial prerogative of the Employer and that arbitrator’s should not interfere in deciding who is the best candidate but confirmed that employees should be treated fairly.
19. The Respondent’s only witness was the Deputy Principal of Corporate Services at the DHET, Mr. Sakhamuzi Zondo and is based at the uMgungundlovu College. In his testimony, Mr. Zondo confirmed most of the facts outlined above and further clarified that they were unaware of the response from the DHET and received no further instructions from the DHET as to what should be done going further with this matter.
20. In cross-examination, Mr Zondo confirmed that the panel had not acted unfairly in not short-listing the Applicant for failing to have a valid driver’s license, that he could not understand how the Director-General had decided that they had acted unfairly as he did not have the investigator’s report ; but agreed that the Director-General who is the highest “decision-maker” in the DHET had decided this.
21. Mr Zondo confirmed that the time-period for the outcome of a grievance is 30 days from the date of receipt of the grievance, which was on the 24th November 2022 and the panel which he chaired, sat on the 16th January 2023; this is in terms of Resolution 14 of 2002 of the Public Service Co-Ordinating Bargaining Council which Mr Zondo accepted. Mr Zondo stated that it was therefore “evident” that the grievance was outside the requisite 30-day period and he did not know if there was the required agreement from the Applicant for this
22. Mr Zondo agreed that the decision of the panel he chaired had been over-ruled by the Director – General ; that the grievance was finalised on the 16th January 2023 and the candidate was appointed on the 2nd February 2024 ; that the Respondent went ahead in appointing a candidate to the position as the grievance had been finalised at the College level ; they were unaware that the Applicant was going to take the grievance further ; but he agreed that a grievance may be taken all the way up to the Director-General until it is resolved. In addition, it was urgent that an appointment be made to avoid the learners being prejudiced by not having a lecturer.
23. Finally, Mr Zondo maintained that he believed that that the College had acted fairly in not short-listing the Applicant due to him not being in possession of a valid driver’s license.
24. The parties agreed to submit their closing statements in writing within 7 days of the last day of the hearing being the 7th of February 2025 – these were accordingly submitted.

Analysis of evidence and argument:

25. In deciding whether an unfair labour practice in relation to promotion has occurred, the courts in the cases cited above whilst agreeing that an employer’s prerogative in deciding who the best candidate for the position is, should not be overlooked by an arbitrator, emphasised the need to ensure that an Applicant is not treated unfairly, to provide justification for the appointment, that the dispute should only concern promotion and does not extend to disputes that relate to whether employees deserve to be promoted and that a balance must be struck between employer’s prerogative and employees’ right to be treated fairly (SAPS v Safety & Security Bargaining Council & others [supra].
26. Furthermore in City of Cape Town v SA Municipal Workers union on behalf of Sylvester and others (2013) 34 ILJ 1156 (LC), the Court held that when arbitrators make an assessment of whether the failure to promote constitutes an unfair labour practice, the test is one of fairness and referred to the following factors :

• Whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the employer.
• Whether the employer’s decision was arbitrary, or capricious or unfair.
• Whether the employer failed to apply it mind too the promotion of the employee;
• Whether the employer’s decision not to promote was motivated by bad faith;
• Whether the employer’s decisions was discriminatory;
• Whether there were insubstantial reasons for the employer’s decisions not to promote.
• Whether the employer’s decision not to promote was based upon a wrong principle; or
• Whether the employer’s decision not to promote was taken in a biased manner.

25. In Pamplin v Western Cape Education Department (C 1034/2015) (handed down 9 May 2018), the Court emphasised that in an unfair labour practice relating to promotion, the employee bears the onus to prove that the failure to promote was unfair, the employer will be obliged to defend the challenges made on the substantive and procedural fairness to avoid a negative outcome.
26. In Dlamini v Toyota SA Manufacturing 2004 25 ILJ 1513 (CCMA), the Commissioner stated that the Commissioner’s function is to ensure that the employer did not act unfairly towards other candidates when it selected the successful candidate.
27. Based on the all of the above it is patently clear that my primary function is to find whether or not there was unfairness in the Respondent’s actions and not whether the Applicant was deserved to be promoted to the position – for that is the test that Courts are consistently emphasising, that is the test of fairness
28. I believe that there is ample evidence for me to find that there was unfairness in the manner in which the Applicant was treated for the following reasons:

• Firstly, the most obvious reason that may very well preclude me from having to find evidence of unfairness is when the party being alleged to be unfair openly admits that it has acted unfairly ; and in this case when the Director- General, no less being the highest authority in the Respondent’s department states “The investigation revealed that his grievance is substantiated and that the shortlisting panel erred by not shortlisting him”. An honourable admission indeed because nothing could be stated with more clarity and confirmation by the highest authority that an error, an unfairness or wrong has been committed. The Respondent’s response to this was weak and of no substance, as in stating that there had been no communication between the Applicant, the office of the Director- General and themselves or that they did not learn of the outcome of the investigation or that the Applicant had not informed them that he was going to proceed with this dispute, or that they do not the reasons for this finding of unfairness that an error had been committed. A number of questions arise in this regard as to why on their part, no initiative was taken to find out what the outcome of the investigation would be, as they alluded to being aware of the investigation, or the reasons for such a decision, what was the reason for the failure in their communication in a matter that involved them as a panel , or why did they not simply ask the Applicant whether he intended to take the matter further knowing that this was his right and which they had informed him of.

25. Their defence to the issue of Circular 19 0f 2022 which required that only short-listed candidates were required to submit documents over and above Form Z83 and curriculum vitae. I find this unreasonable and unfair that the panel knew or should have known of this and that they could have short-listed the Applicant and requested that all further documentation that would be required at the interview. This would not have been unreasonable and there appeared to be no further valid explanation from the Respondent for this.
26. The issue of the failing to conclude resolution of the grievance within 30 days of the receipt of the grievance in accordance with Resolution 14 of 2002 of the Public Service Co-Ordinating Bargaining Council, which the Respondent’s only witness who chaired the panel appeared quite unsure of but then agreed that the time period had not been complied with.
27. That the Applicant changed the relief he desired to compensation is of no major consequence as he is by no means bound by what he initially stated as his desired relief and I do not find that this prejudiced the Respondent in any manner.
28. I therefore find that in addition to the finding of unfairness by the Respondent itself, that in accordance with the decisions of the Courts quoted above and applying the test of fairness, that the Respondent had acted unfairly on substantive and procedural grounds, in failing to allow the applicant the opportunity to be promoted.

Award:

35. I find that the applicant, Mr Thamsanqa Cyprian Simamane was unfairly not promoted and that this constituted an unfair labour practice.
36. The Applicant has requested the maximum compensation. However, compensation must be just and equitable and take into account all the circumstances of the case, including Collective Agreement No 3 of 2016 (ELRC Guidelines: Promotion Arbitrations) that binds the parties.
37. I therefore believe that compensation in the sum of R40,000.00 would be fair.
38. The Respondent is ordered to pay the Applicant the sum of R40,000.00 within 1 month of receipt of this award.

Urmilla Patel
Commissioner
18:02:25