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06 March 2025 -ELRC478-24/25EC

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT MTHATHA
IN THE ARBITRATION
BETWEEN
NAPTOSA OBO APHIWE FILI APPLICANT
AND
DEPARTMENT OF EDUCATION – EC 1ST RESPONDENT
SADTU OBO NGWADLA N 2ND RESPONDENT

ARBITRATION AWARD

CASE NO ELRC478-24/25EC
DATE/S OF HEARING 14/10/2024, 25-26/11/2024 & 17/02/2025
DATE AWARD SUBMITTED 28/02/2025
NAME OF PANELIST SIZIWE GCAYI

DETAILS OF THE HEARING AND REPRESENTATION

  1. The matter was set down for arbitration in terms of section 191(5) of the Labour Relations Act 66 of 1995 (“LRA”) at the Department of Education offices in Mthatha on 14/10/2024, 25-26/11/2024 & 17/02/2025 at 09h00.
  2. Mr A Mhlontlo an official from NAPTOSA represented Applicant [A Fili ].
  3. Mr A Tyantsi an official from SADTU represented the second Respondent [N Ngwadla].
  4. Ms A Xala an official, represented the first Respondent, (Department of Education Eastern-Cape).
  5. The proceedings were electronically and manually recorded. The parties handed in bundle of documents in support of their cases. All parties relied on bundle A. The parties were given up to the 27 February 2025 to file their closing arguments with the Council.

ISSUES TO BE DECIDED

  1. I am required to determine whether an unfair labour practice relating to promotion was committed by the 1st Respondent. Further, depending on my finding, l am required to determine the appropriate relief.

BACKGROUND OF THE DISPUTE

  1. This is a promotion dispute involving post no 704 – volume 2 of 2024 being the deputy principal post for Umthatha technical college.
  2. After the post was advertised the Applicant, the 2nd Respondent and other candidates applied for the post. The 2nd Respondent was appointed as the deputy principal at Umthatha technical college
  3. The Applicant alleged that the 1st Respondent was biased towards the 2nd Respondent. The relief sought by Applicant that the appointment of 2nd Respondent be reviewed and set-aside and the post be advertised again.

SURVEY OF EVIDENCE
Employee’s case

  1. The Applicant testified himself and called no other witness in support of his case. In summary, the Applicant testified about his work experience and qualifications.
  2. It was his evidence that he started teaching in 2014 at Mtengwana High School in Qumbu. He was employed by the school governing body [SGB]
  3. In 2016 he was gainfully employed by the 1st Respondent, teaching mathematics and physical science, grade 9-12. In relation to leadership roles, he mentioned that he was the secretary of the SGB. Bundle A pg 23- extract from the bulletin was read on record.
  4. Learning areas were: mathematics and physical science, grade 10-12. He mentioned that he taught mathematics in grade 10-12. Bundle A pages 23,24,25,27,28,32,34,43,48,55,56,58,59,60,61,63,73,74, 75, were read on record.
  5. It was his evidence that the 2nd Respondent did not meet the requirements of the post. She was not supposed to be shortlisted. Minutes of the SGB meeting held on 06/06/2024 were read on record. Shortlisting on pg 27 was also read on record.
  6. On page 25 the SGB elected a panel and Mr Hlophe was not elected. Mr Hlophe imposed himself. He also stated that he did not attend the training on 31 May 2024, he declared an interest in the post.
  7. Mr Zitwana informed him that Mr Hlophe did not attend the training. On pg 28, it was the attendance register Mr Zitwana signed but played no active role, he attended a break in that occurred at his homestead.
  8. Page 34, panel meeting held on 25 July 2024. Page 50-55 recruitment and selection policy, it was read on record. On page 27 Mr Mantenetya a SADTU official participated in the shortlisting process. Applications marked with X were incomplete. On page 59, application form of the 2nd Respondent was not properly completed, paragraph 5 was blank.
  9. On page 60 paragraph 20,9 and 20, 10 were blank. The application form of the 2nd Respondent was incomplete. It belonged to those that were sifted out.
  10. The 2nd Respondent taught natural science and technical science. He mentioned that his application form was properly completed. He deserved to be shortlisted. On page 80, it was the transcript of the Applicant. It was read on record. He had both mathematics and physical science.
  11. Bundle A pg 43-48 were the recommendations of the two candidates. The recommendations were to be approved by the chief director.
  12. The relief sought was the set aside of the appointment of the 2nd Respondent.

Respondent’s Case
The First Respondent.

  1. The first Respondent led evidence of one witness. His evidence is summarised below. Mr Madoda Justice Hlophe [ “Hlophe”] testified as follows: He was the chairperson of the school governing body. He started in 2018.He was trained twice by the 1st Respondent.
  2. He was part of the recruitment process for the deputy principal for Umtata technical college. There were two candidates form the school that applied for the position.
  3. The Applicant was not shortlisted. In terms of the criteria that was developed, he did not meet the criteria. He did not meet the points. Some of the things he recalled on the criteria was the number of years of teaching experience, level of education, subjects.
  4. The 2nd Respondent meet all the requirements based on the points. He maintained that he was trained twice by the 1st Respondent. He did not know the Applicant and the 2nd Respondent outside the school environment.

The Second Respondent

  1. The second Respondent – Nothemba Ngwadla closed her case without calling any witnesses.

ANALYSIS OF EVIDENCE AND ARGUMENT

  1. It is trite that the employee bears an onus to prove an unfair labour practice as defined in section 186(2)(a) of the LRA was committed by the Respondent. The Applicant must convince the arbitrator that the conduct of the 1st Respondent amounted to an unfair labour practice as defined and distilled from applicable jurisprudence and as envisaged in the law.
  2. I have considered the departmental guidelines for sifting, shortlisting, interview procedures.
  3. I have also considered the Recruitment and Selection Policy for the department of Education-Eastern-cape. [“RSP”]
  4. I have also considered, the advert in question, Open post bulletin for deputy principals and departmental heads volume 2 of 2024. I have also considered the Employment of Educators Act 76 of 1998 plus the Revised PAM document.
  5. Section 186(2)(a) of the LRA reads as follows: “unfair labour practice any unfair act or omission that arises between an employer and the employee involving, unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about unfair dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee”.
  6. I have to decide whether the 1st Respondent acted fairly or not, in not shortlisting Applicant for the position of the deputy school principal at Umtata technical college.
  7. It is important to note that there is no right to promotion however there is a right to be given a fair opportunity. In the present case the Applicant was not given an opportunity to compete for the post. He was not shortlisted. He lodged an unfair labour practice dispute relating to promotion to the Council.
  8. In NOONAN v SSSBC & OTHERS [2012] 33 ILJ 2597 [LAC], “the Court held that there was 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 constitute 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 unacceptable reason”.
  9. In the current matter before the Council the Applicant did not participate in the interviews. He was not shortlisted for the position of the deputy principal for Umtata technical college.
  10. In MONYAKENI v SSSBC & OTHERS [JA 64/13] [2015] ZALAC 17 , the Court stated that there are two components to a complaint regarding a failure to promote, an employee as an unfair labour practice. The one relates to the procedure followed by the employer, the other relates to the substantive merits and it concerns the suitability of the candidate for promotion to the post in question.” The conduct of the employer may be substantively and / or procedural unfair. Substantive unfairness relates to the reason for not promoting the employee, whereas procedural unfairness relates to an unfair process applied by an employer during the recruitment and selection process. [ ELRC Collective Agreement 3 of 2016]
  11. It is common cause that Applicant was not shortlisted, but the 2nd Respondent and other four candidates were shortlisted for the post. They attended the interviews. The 2nd Respondent was the successful candidate.
  12. With the evidence from Mr Hlophe, the Applicant was not shortlisted because he did not meet the point requirements. The number of years of teaching for the Applicant according to his cv is eight years, however it is more than that. It was the evidence of the Applicant that he commenced teaching in 2014 at Mtengwana High School in Qumbu. On page 76 [ CV] of the Applicant, the work experience for the period 2014 is not included on his CV. On cross-examination by the 1st Respondent, he was asked why he not included 2014,2015 but decided to start on 2016. His response was that he was advised by his friend not to include the years he was employed by the SGB.
  13. The Applicant also confirmed that the 2nd Respondent had 24 years of teaching experience. He had 8 years teaching experience and he thought that 4 years was sufficient and, in his case, he had 8 years teaching experience. He also mentioned that he had 8 years teaching experience in mathematics and physical science, compared to the 2nd Respondent who had 1 year 3 months.
  14. The CV’s of the other four candidates that were shortlisted and interviewed were not made available to me. I am not in a position to comment on them. I am placed in a difficult position. I am not sure why they were not made available.
  15. Bundle A contained the CV, application form of the Applicant and the 2nd Respondent. CV’s of the other four candidates ought to have been made available as well, for purposes of assessing holistically whether the conduct of the 1st Respondent in not shortlisting the Applicant amounted to unfair labour practice.
  16. Bundle A page 30-31 Master list deputy principals: Umtata technical college. My observation on those pages the candidates that were shortlisted had more than 13 years teaching experience.
  17. Dency had 34 years, Ngwadla had 24 years, Cengani had 19 years, Ngqiyana had 18 years and Mfisi had 14 years. There were only five candidates who had six years teaching experience who applied for the post and one with 5 years teaching experience Mkakelwa A, she was sifted in. At face value all the candidates that applied for the post in question meet the minimum requirements.
  18. In Sun International Management (Pty) Ltd v CCMA and others (JR 939/14) [2016] ZALCJHB 433 (handed down on 18 November 2016) it was held that a finding that a failure to promote was unfair must be a rational one i.e. it must be supported by facts. It is a determination that can only be made after a holistic assessment of evidence relating to the Employee’s qualifications and/or suitability for the position in question, against that of other candidates. The Court held that in promotion disputes it is not enough to merely show that there is a breach of protocol or procedures in the recruitment process. It is also necessary for an Employee to show that the breach of the procedure had unfairly prejudiced him. This means that the Employee must not merely show that he was the suitable candidate for consideration, but that he was the best candidate.
  19. In Malatji v City of Tshwane Metropolitan Municipality and others (JR 654/17) [2019] ZALCJHB 300 (handed down on 7 November 2019) the Court held that it is trite that a 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. An Employee may challenge his/her failure to be promoted with reference to the procedure adopted in appointing the successful candidate and the reasons for failing to promote him/her. In this matter, the Employee challenged the Municipality’s decision not to promote him on the basis that he was not shortlisted and interviewed for the position that he had applied for. It was common cause that the Employee applied for the position that was advertised. The question is whether the Municipality’s conduct or decision not to shortlist and appoint him is one that falls within the definition of unfair labour practice. The Employee has to show that he has been overlooked for promotion although he possesses qualifications or experience that the successful candidate does not have and that the Municipality cannot explain why he was overlooked. If the said conduct or decision is proven, the enquiry whether the conduct was unfair can then follow. If it is found that the conduct was fair, that is the end of the matter.
  20. In these proceedings onus is on the Applicant to demonstrate that the failure to appoint was unfair and the employer is obliged to defend the challenges on the substantive and procedural fairness.
  21. In IMATU obo Visagie v Mogale City Municipality (JR 86/15) [2017] ZALCJHB 432 (handed down on 20 November 2017) it was held that the law requires the Employee to show the existence of the conduct or decision complained of. Therefore, the onus rests with the Employee. It follows that if the Employee is challenging the process and that decision or conduct by the Employer is not established by the Employee, then that is the end of the matter.
  22. In terms of the RSP paragraph 10 ( viii) “the selection panel must determine the selection criteria based on the advert and inherent requirements of the job, taking into account Employment Equity requirements.” It was the evidence of Mr Hlophe that the number of years of teaching experience were considered amongst other things. As stated above all the shortlisted candidates had 14 years of teaching experience and above. The panel was limited to shortlist only five candidates as per the RSP & PAM document. On Bundle A page 30-31 the total number of applications received were 36, only 5 were shortlisted, clearly it was not possible to shortlist every application even though they met the minimum requirements.
  23. In MUSHABA v UNIVERSITY OF JOHANNESBURG & OTHERS [2023] 2 BLLR119 [LAC] the Court stated “ a promotion is a process commencing with the advertisement of the post followed by shortlisting and interviews. The interviewing panel makes recommendations to the employer to appoint a candidate they found suitable. The appointment and promotion of employees falls squarely within the domain of the employer, who has to effect the promotion in accordance with its requirements for the post. It is the employer who must select the best suitable candidate particularly where there is more than one candidate qualifying for the position.”
  24. With the insufficient evidence placed before the Council by the Applicant, I am unable to reach a conclusion that an unfair labour practice relating to promotion both procedural and substantively, was committed by the 1st Respondent. At no stage did the Applicant demonstrate that he was the best candidate out of all the 36 candidates that applied for the position of the deputy principal for Umtata technical college.
  25. Based on the evidence before me, and on what I have highlighted above, I am not satisfied that the Applicant discharged the onus placed on him, on a balance of probabilities to prove that the conduct of the 1st Respondent amounted to unfair labour practice- relating to promotion.
    AWARD
  26. The Applicant’s dispute referral is dismissed. Signature:

Commissioner: Siziwe Gcayi
Sector: Basic Education