04 March 2025 -ELRC606-19/20KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT DURBAN
CASE NO.: ELRC 606-19/20KZN
IN THE MATTER BETWEEN: –
MTHIMKHULU H P APPLICANT

AND

DEPARTMENT OF HIGHER EDUCATION AND TRAINING (DHET) 1ST RESPONDENT
THEKWINI TVET COLLEGE 2ND RESPONDENT
Z. ZULU 3RD RESPONDENT
Z MNCWANGO 4TH RESPONDENT
P NGUBANE 5TH RESPONDENT
L MCHUNU 6TH RESPONDENT

ARBITRATOR : P. JAIRAJH

DATE OF AWARD : 26 FEBRUARY 2025

Applicant’s representative : MS T.J.E HLENGWA (NEHAWU)
Telephone : 072 230 1529
Email :

1st to 6th Respondent’s representative : MR B.S. HLELA (HLELA ATTORNEYS)
Telephone :
Email :

DETAILS OF HEARING AND REPRESENTATION:
[1] This matter was set down several times and protracted due to delays inter alia relating to Covid-19, joinder application, jurisdictional issues and representatives being ill. This matter commenced on 18 March 2020 and was concluded on 4 February 2025.
[2] The applicant was initially represented by Mr S. Gaffoor, an attorney from Abdool Gaffoor, Parasram & Associates and subsequently by Ms T.J.E Hlengwa from NEHAWU. All the respondents were represented by Mr B.S. Hlela from Hlela Attorneys.
BACKGROUND TO THE DISPUTE
[3] The applicant applied for the promotional posts of Campus Manager at Springfield under Post Reference AS04/07/2018, Cato Manor under Post Reference AS 01/07/2018, Centec under Post Reference AS 03/07/2018 and at Asherville under Post Reference AS 02/07/2018, however he was unsuccessful.
[4] The applicant was not shortlisted and he contends that he had met all the requirements and had the necessary experience and qualifications to be appointed to the posts in dispute.
[5] The applicant contended that the shortlists were not in line with the Collective Agreement. The respondents contended that the requirements for all 4 positions were exactly the same. The employer found candidates that were appointable to the posts and as a prerogative of the employer, cross transfers had occurred.
POINT IN LIMINE
[6] The respondents raised a point-in-limine contending that the Council lacked jurisdiction to determine the dispute. They submitted that the relief the applicant was seeking as indicated in the applicant’s prayer in his referral form, was beyond the powers of the commissioner.
[7] The commissioner handed down an oral ruling that evidence would have to tendered in order to make a proper finding.
ISSUE TO BE DECIDED
[8] I have to determine whether the non-appointment of the applicant to the posts in question by the first respondent constituted an unfair labour practice in terms of section 186(2)(a) of the Labour Relations Act, 66 of 1995, and if so, the appropriate relief.
SUMMARY OF EVIDENCE AND ARGUMENTS
APPLICANT’S SUBMISSIONS
HENRY PHELELANI MTHIMKHULU (hereinafter referred to as “applicant”)
The salient points of the applicant’s testimony are recorded below.
[9] He had matric, a recognised and relevant tertiary qualification, REQV 13, an appropriate teaching qualification and 7 years teaching or lecturing experience.
[10] It was not a requirement to have formal management experience. The requirement was 2 years’ managerial experience at a school or college.
[11] In his CV, he recorded his responsibilities as an HOD. He had these responsibilities when he was doing HOD duties while employed by the Department of Basic Education (the “Department”), when he was the Acting Campus Manager and when he was a Part-Time Co-ordinator managing the part-time teaching and learning at the Campus.
[12] In his covering letter he had stated that he had acted as an HOD for over three years and as a Campus Manager wherein he was fulfilling the duties of a manager which entailed monitoring the department. He was doing the duties of an HOD at Chesterville Secondary School from 2010 to 2015. He was appointed as the Acting Campus Manager from April 2016 to December 2016.
[13] He had further indicated in his covering letter that he was managing the part-time classes at the Engineering division of the Springfield Campus. He managed the part-time classes from Monday to Thursday between 4pm and 8pm. He also did part-time management duties on some Saturdays between 4pm to 8pm.
[14] In his CV, under work experience, he had recorded that he was the Acting Campus Manger from April 2016 to October 2016 at Ethekwini College. An ELRC Award was issued indicating that his appointment was unfair however he was requested by his senior to continue acting until the end of the December 2016 examinations.
[15] According to the Confirmation of shortlisted candidates for the Springfield Campus Manager post, 8 candidates were shortlisted but the current appointee; Mr A. Mncwango’s (Mncwango) name was not on the list of shortlisted candidates and in respect of Asherville Campus, 7 candidates were shortlisted but the current appointee, P.P Ngubane’s (Ngubane) name was not on the list of shortlisted candidates.
[16] In terms of the Shortlisting clause in the FETCBU Collective Agreement 4 of 2013 , a maximum of 5 candidates should be shortlisted per post for the interview process hence the shortlist for Springfield, Asherville, Cato Manor and Centec was in contradiction with the collective agreement.
Under cross-examination he testified that:
[17] He agreed that he had recorded in his CV that he had left the position of a post-level 1 educator on the grounds of promotion. He disputed that he had lied on his CV and argued that it was not an error and insisted that he was promoted by the Principal, Mr N. Shabalala (Shabalala) who had verbally told him to execute post level 2 duties. He conceded that he did not have a letter of appointment from Department appointing him as the HOD, neither from Shabalala nor from the SGB. He agreed that there was nothing that could conclusively confirm his status as the HOD.
[18] He conceded that all promotions in the Department are signed by the Head of the Department and where an employee in the Department has been elevated, the post level is reflected on that person’s payslip.
[19] When it was put to him that he had misconducted himself and misrepresented information that he was promoted, he insisted that there was proof and stated that the post he had applied for needed an HOD so he wrote HOD because he had the experience of HOD duties.
[20] It was put to him that when he realized that the position of a campus manager required management experience, he added in his CV that he was the HOD, something which was never part of his CV in 2014 when he was appointed as a lecturer. He conceded that on his initial CV, he had not indicated that he was an HOD and had only crossed his current permanent post as ‘level 1 educator’. He conceded that under teaching experience, he wrote that he was still serving as a post level 1 educator at Chesterville Secondary School and had scratched out the remaining lines and; nowhere did he say that he was the acting HOD or performing HOD functions or talked about promotion.
[21] He was referred to the letter that was sent to Chesterville Secondary School enquiring about his appointment as an HOD and where Shabalala had indicated that he was not an HOD and; it was put to him that one of the requirements was that an incumbent for the posts had to have two-years management experience, he stated that there was a typographical error in his CV where it was written that he was an HOD at Chesterville Secondary School whereas he was performing all the duties of technical subjects in Chesterville Secondary School.
[22] When questioned where in his CV, he had indicated the number of years as a co-ordinator, he averred that he managed the part-time classes and conceded that nothing relating to co-ordinator was written in his CV but he had relied on the fact that the management of the College was part of the interview committee (IC).
[23] He agreed that as a job applicant, he was responsible for the information that appears on his CV. He conceded that the shortlisting committee relies solely on what each job applicant had attached and job applicants do not get called to explain their CVs or attachments during the shortlisting processes.
[24] He agreed that in the Z83 there was a portion where a person makes a declaration that the information including the attachments are complete and correct and that any false information supplied by that person can lead to that person being disqualified or discharged if appointed.
[25] He argued that he had acted as the Campus Manager for more than 6 months. He agreed that in his covering letter there was nothing that tells the reader how many months he had acted as a Campus Manager. He conceded that he had recorded on his CV that he was the acting Campus Manager from April 2016 to October 2016 and stated that there was an error on his CV. He conceded that this information would have been before the shortlisting committee.
[26] He conceded that in his covering letter, there was no period indicated in terms of him running the National Examination Distribution Point at Centec Campus. He agreed that his CV does not talk to National Distribution Centre, Centec and part-time classes. He agreed that this was his own error.
[27] Shabalala made him translate policies for the Department. He did not have a letter from Shabalala appointing him as a chief invigilator for the provincial exams as this was an arrangement and he further stated that the Department would not issue a letter to a person who had not been authorized. He agreed that in his CV under senior marker for grade 12, the period was not indicated.
[28] It was put to him that Mr W.P. Glendon, the owner of the institution, who had issued the N3 bridging course certificate had testified in another of his ULP matters that the certificate which he had attached to his application was a bridging course certificate and he did not have the N3 certificate, he insisted that he had an N3 qualification.
[29] He agreed that the IC would set out rules that they would have designed on the day of the interview and questions that they would have prepared to interview candidates and that the employer needs to look for the best out of the best. He did not know what made the incumbents suitable for the IC to recommend them and he did not know who was ranked behind them.
[30] At the time of the post advertisement, he belonged to SADTU. He acknowledged that SADTU and NEHAWU had agreed that he did not have 2 years’ experience and had agreed that the candidates whose names were appearing on the shortlists must be shortlisted.
[31] He was dismissed on 17 September 2024 because the College felt that he had lied about his qualifications and the fact that he was an HOD.
[32] He stated that he was appointed as an acting HOD by the SGB however he did not have any documents to back him up as the acting HOD.
RESPONDENT’S SUBMISSIONS
NOKUTHULA MAJALI (hereinafter referred to as “Majali”)
The salient points are recorded below.
[33] She is the Deputy Principal: Corporate Services at Thekwini TVET College and was one of the panel members.
[34] The post advertisement contains the minimum requirements.
[35] The Panel used the Analysis Sheet to analyse the candidates’ application and attached documents against the post requirements which they completed in preparation for the shortlisting.
[36] By signing the Analysis Sheet, the panel members agreed that the applicant did not have two years’ management experience and by the union members signing, they were confirming that they had checked what was written in the Analysis Sheet and confirmed it to be correct.
[37] The applicant had recorded in his CV that from June 2010 to 2015, he was the HOD at Chesterville Secondary School up until he was appointed by the college in 2015. Mr Mshanga, the Director for Recruitment and who was part of the shortlisting committee, used the persal system to obtain the service record and experience of the applicant and the persal system did not have a record of him as HOD.
[38] Their policy processes do not allow for candidates to come during the shortlisting process and explain errors in their CV’s. Candidates submit information and sign that the information that they have provided is correct. The applicant signed the declaration saying he understood that if the information supplied was false, it will lead to his disqualification.
[39] The applicant was not shortlisted because he did not meet all the criteria that was required for him to be shortlisted.
[40] In respect of the requirement pertaining to a recognized and relevant qualification, the panel recorded that the applicant’s qualification was not 3 years. A REQV 13 is a national diploma or a degree with 360 credits which is a three-year qualification. The applicant’s qualification was not three years hence he did not have a REQV 13 qualification.
[41] If one did not meet the entry requirements for a certain qualification, one would do a bridging course. After passing that bridging course, one would have to do N3. The applicant did not have any certificate to say that he had successfully completed the N3 qualification.
[42] In 2020, the principal of Chesterville Secondary School responded to the College Principal’s letter that the applicant was employed by the Department at Chesterville Secondary School between 2010 and 2015 and he was holding a post level 1 position but he was not employed as HOD by the Department during the aforementioned period. The principal further stated that the applicant had spearheaded the introduction of the technical department at the school in the absence of the HOD in the department and the school.
[43] Mncwango was currently employed as a Campus Manager at Springfield Campus. Shortlisting for all these posts was held on the same day and the interviews for all posts were held on the same day. The appointees all assumed duties at the same time, except for Centec because the Centec candidate was the number 2 candidate due to the first recommended candidate declining the post. After the candidates were appointed there was a request from Zulu and Mncwango for them to swap positions.
Under cross-examination she testified that:
[44] She knew that the applicant was a part-time coordinator. When one is working part-time, one is working for certain hours thus in calculating experience, it would be for the hours worked.
[45] There was a formal request by the candidates after appointment to be transferred from one campus to another which was in terms of the Transfer policy.
[46] When it was put to her that by virtue of the applicant being suitable for the acting campus management post, he believed that he would automatically be regarded as meeting the minimum requirements for this post, she averred that the applicant did not meet the minimum requirements of the post.
[47] It was put to her that according to the Certificate of Evaluation of Qualification, it reflects that the applicant was regarded as REQV 15 and professionally qualified. She stated that according to this document, starting from Motor Trade Theory N3, the panel members had to verify and look at each and every attachment. The certificate in a Motor Trade Theory N3 was a bridging course and after passing the bridging course one can do the N3 qualification.
[48] While the applicant was employed by the College, he was studying at the college but she could not remember if he was doing N1 or N2 hence he would not have registered to do the N course that he already had. For one to be an artisan, one needs to have the N2 or N3 certificate, then obtain at least two years’ experience in the industry and thereafter do a trade test. She did not know how the applicant got this letter but it was incorrect and as a lecturer in the TVET, the applicant would understand exactly what she was saying.
ANALYSIS OF EVIDENCE AND ARGUMENT
I have considered all the evidence and arguments of the parties and what follows is a brief summary relevant to the dispute at hand and does not reflect all the evidence and arguments considered in deciding this matter.
[49] In terms of section 186(2)(a) of the Labour Relations Act 66 of 1995, Unfair Labour Practice means any unfair act or omission that arises between an employer and an employee involving-
(a) unfair conduct by the employer relating to the promotion, demotion, probation [excluding disputes about dismissal for a reason relating to probation] or training of an employee or relating to the provision of benefits to an employee.
[50] During the arbitration the respondents raised a point-in-limine contending that the relief sought by the applicant as indicated in his Referral was beyond the powers of the commissioner.
[51] The Court in CUSA v Tao Ying Metal Industries and Others (CCT 40/07) [2008] ZACC 15 held as follows: “A commissioner must, as the LRA requires, ‘deal with the substantial merits of the dispute’. This can only be done by ascertaining the real dispute between the parties. In deciding what the real dispute between the parties is, a commissioner is not necessarily bound by what the legal representatives say the dispute is. The labels that parties attach to a dispute cannot change its underlying nature. A commissioner is required to take all the facts into consideration including the description of the nature of the dispute, the outcome requested by the union and the evidence presented during the arbitration. What must be borne in mind is that there is no provision for pleadings in the arbitration process which helps to define disputes in civil litigation. Indeed, the material that a commissioner will have prior to a hearing will consist of standard forms which record the nature of the dispute and the desired outcome. The informal nature of the arbitration process permits a commissioner to determine what the real dispute between the parties is on a consideration of all the facts. The dispute between the parties may only emerge once all the evidence is in.”
[52] The applicant had recorded in his Referral that the relief he seeks was the setting aside of the appointments and that the selection process be started de novo, alternatively he sought protected promotion, which relief falls within the powers of a commissioner.
[53] The Applicant claimed that the first respondent had committed an unfair labour practice relating to promotion by not shortlisting and appointing him to the posts of Campus Manager at Cato Manor, Springfield, Centec or Asherville. During the arbitration, the applicant submitted that the relief he seeks is protected promotion.
[54] The applicant was employed as a lecturer at Thekwini TVET College but was subsequently dismissed.
[55] The onus is on the applicant to prove on a balance of probabilities that an act or omission due to the conduct of the first respondent gave rise to an unfair labour practice.
[56] In Lindsay v Ithala Development Finance Corporation Ltd (2) (2002) 23 ILJ 418 (CCMA), the Commissioner considered that, “with regard to onus, the principles of our labour law is clear that the initial burden of proof is always on the employee to show that the employer did something, whether it be a dismissal, or a labour practice, and once the existence of that fact is established, the burden of proof moves to the employer to show that what it did was fair. The overall onus always rests on the employee to show the existence of an unfair labour practice.”
[57] In Arries v CCMA & Others (2006) 27 ILJ 2324 the court held at par [16], “that there are limited grounds on which an arbitrator, or a court, may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised.” The court further held at par [17], that an employee can only succeed in having the exercise of a discretion of an employer interfered with, if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner.
[58] It was common cause that FETCBU Collective Agreement 4 of 2013 was applicable to this promotional process and clause 6.4 states that a maximum of 5 (five) candidates should be shortlisted per post for the interview process.
[59] In Observatory Girls Primary School & others v Head of Department: Department of Education, Province of Gauteng, Case no 02/15349 [2006] JOL 17802 (W) it was held that strict compliance with relevant guidelines and collective agreements is not necessary, substantial compliance is sufficient.
[60] In Noonan v Safety & Security Sectorial Bargaining Council & others (2012) 33 ILJ 2597 (LAC), the court 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 scrutinising 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.”
[61] The applicant had a perception that the shortlisting committee should have called him to explain and rectify errors on his CV. The applicant had a human resource qualification and had testified that he had sat in on shortlisting processes thus he should be well versed in knowing that no candidate is called to rectify errors while shortlisting is underway.
[62] The applicant claimed that he had two years’ management experience but the panel failed to shortlist him. He further contended that two of the incumbents were not shortlisted but were interviewed and promoted.
[63] Majali testified that after the candidates were appointed there was a formal request for transfer from one campus to another, which remained unchallenged. She testified that the applicant did not have a REQV 13 qualification and neither did he have an N3 qualification. She testified that the applicant did not have two years’ management experience.
[64] The applicant could not dispute that in his initial CV when he joined the College he did not record that he was an HOD or that he had management experience.
[65] The applicant conceded that he was not appointed by the Department as an acting HOD or an HOD. He conceded that he did not indicate the period of his management experience in his CV. He failed to prove that he indeed had two years’ management experience. The applicant failed to prove that he had an N3 qualification and a REQV 13 qualification. He conceded that the errors on his CV was due his own fault.
[66] The applicant failed to prove that the shortlisted candidates had not met the requirements of the post. The applicant failed to advance any evidence pertaining to a conspiracy against him.
[67] In Mbatha v Safety and Security Sectoral Bargaining Council and Others JR372/13 [2015] ZALCJHB 332 the court held that: “[28] It has long been accepted that the decision to promote or not to promote falls within the managerial prerogative of an employer and that the courts will interfere only where such discretion was exercised capriciously, or for insubstantial reasons or based upon a wrong principle or in a biased manner.”
[68] In Noonan v Safety & Security Sectorial Bargaining Council & others (2012) 33 ILJ 2597 (LAC), the court held at par 13(i): “It is insufficient for a complainant to say that he or she is qualified by experience, ability and technical qualifications; he or she must also show that the decision to appoint someone else in preference to him or her was unfair. If the employer’s decision to appoint another candidate is rational, no question of fairness can arise.”
[69] Accordingly, it can never suffice for the applicant to say that he is qualified by ability, experience and qualifications for the post. This is merely the first hurdle. The applicant failed to compared himself with the third, fourth, fifth and sixth respondents as well as the shortlisted candidates. There is no evidence to show that the applicant would in fact have been shortlisted to compete for the post in dispute.
[70] The second hurdle is for the applicant to show that the decision to appoint the third, fourth, fifth and sixth respondents to the posts in dispute in preference to the applicant was unfair. The applicant has to show that a breach of procedure has unfairly prejudiced him.
[71] There is no evidence to suggest that the incumbents to the posts had an undue influence on the panel or were unduly favoured by the panel. Further, there is no evidence to show there was any manipulation in the appointment of the candidates to the posts in dispute.
[72] In Ncane v Lyster NO and Others [2017] 4 BLLR 350 (LAC), the court held at par [25] “When it comes to evaluating the suitability of a candidate for promotion, good labour relations expect an employer to act fairly but it also acknowledges that this is not a mechanical process and that there is a justifiable element of subjectivity or discretion involved. It is for this reason that the discretion of an arbitrator to interfere with an employer’s substantive decision to promote a certain person is limited and an arbitrator may only interfere where the decision is irrational, grossly unreasonable or mala fides.”
[73] The applicant has not proved that he was the best and most suitable candidate for the post and from all the evidence presented before me, I am not satisfied that the applicant has established on a balance of probabilities that the first respondent had committed an unfair labour practice against him.
[74] I accordingly find that the first respondent, the Thekwini TVET College, did not perpetrate an act of unfair labour practice against the applicant.
AWARD
[75] The dispute of the applicant, H. P. Mthimkhulu, is dismissed.
[89] There is no order as to costs.