IN THE MATTER BETWEEN: ELRC1008-22/23LP

MATHUNYANE SESHOTHELA SAMUEL APPLICANT

And

DEPARTMENT OF EDUCATION-LIMPOPO 1ST RESPONDENT

MAHAPA M.R 2ND RESPONDENT

1. DETAILS OF THE HEARING AND REPRESENTATION
1.1. The arbitration hearing into an alleged unfair labour practice dispute, referred in terms of Section 186(2) of the Labour Relations Act 66 of 1995, as amended was finalized at The Department of Education-Limpopo, Cnr Hospital and Hans Van Rensburg Street, Polokwane 26 September 2023.
1.2. Both parties attended the proceedings. The employee represented himself, the 1st respondent was represented Makgoba Matlou and the 2nd respondent represented herself.
1.3. Prior to the commencement of the arbitration, the parties submitted signed Pre-Arbitration minutes.
1.4. The hearing was held in English and was digitally recorded.
2. ISSUES TO BE DECIDED
2.1. Whether or not the decision not to shortlist the applicant for an interview was procedurally and substantively fair. If not, I must determine appropriate relief in terms of Section 193 of the Labour Relations Act 66 of 1995, as amended.
3. BACKGROUND TO THE DISPUTE
3.1. The applicant was employed by the Department of Education-Limpopo as DCES at Motetema Circuit under Sekhukhune South District office. In July/August 2022, the applicant applied for circuit Manager position for Nylstroom Circuit under Waterberg District office, and he was not shortlisted for the post. The applicant views the non-shortlisting as procedurally and substantively unfair and prays for re-shortlisting and/or compensation.
3.2. Prior to the commencement of the arbitration, the applicant submitted a bundle of documents marked “A”, while the 1st respondent submitted a bundle of documents marked “B”. The 2nd respondent did not submit any documents.
3.3. The applicant closed his case after leading his own evidence, while the 1st and 2nd respondents did not lead evidence.
3.4. The applicant and 1st respondent submitted written closing arguments, while the 2nd respondent did not submit any closing arguments.

4. SUMMARY OF THE EVIDENCE AND ARGUMENTS
4.1. The following is a summary of only the relevant evidence submitted by the applicant under oath and which was taken into account in order to arrive at a decision in the matter.
5. THE EMPLOYEE’S CASE
5.1. The applicant submitted that he was meeting the requirement for the position, but he was never shortlisted. The shortlisting panel resolved to shortlist three female candidates and two males. The collective Agreement No of 2008, provides that the top five (5) candidates shall be placed on the shortlist. The candidate who was eventually appointed to the position was scored 60 as per the shortlisting score board but her actual score was 58 according to the score for the dimension. Since the appointed candidate is female and the shortlisting panel resolved to shortlist three females, it can be said that she was the least best female candidate. Dr Rabapane M.V, male candidate, was scored 56 but his actual score was 58. Comparing himself with Dr Rabapane, he was the better candidate. According to his calculations using the same criteria used by the shortlisting panel, all his scores are the same as that of Dr Rabapane expect that he is more experienced in educational management. Dr Rabapane has between 11 and 15 years of experience in education management, which amounts to 2 points. He has between 16 and 20 years of experience in education management, which amounts to 4 points. Therefore, his total score is 60 and Dr Rabapane is 58, which makes him a better candidate to be shortlisted than Dr Rabapane.
5.2. Under cross-examination, the applicant, submitted that according to the 1st respondent employment equity profile of the advertised post, African females are under- represented and African male over-represented. Dr Rabapane is an African male. All the shortlisted candidates meet the minimum requirement of the advertised post, expect that they were not all the best 5 candidates. He does not have an issued with the female candidates, including the appointed candidate.
6. THE EMPLOYER’S CASE
6.1. The employer did not call any witness and decided to close its case without leading any evidence.

7. ANALYSIS OF EVIDENCE AND ARGUMENTS
7.1 In Mashaba v University of Johannesburg and Others (JA 140/2021) [2022] ZALAC 116: (2023) 44 ILJ 156 (LAC); [2023]2 BLLR 119 (LAC) (18 October 2022) (para 14 and 15) it was held that after the candidates have been shortlisted, it does not follow that they will be appointed. They still have to go through the interview process. Only one person must be appointed no matter whether all of them qualify. The employer has a discretion to choose which one will be appointed. The court cannot interfere with the discretion unless it can be demonstrated that it was exercised capriciously or is vitiated by malice or fraud. The appointment and promotion of employee falls squarely within the domain of the employer, who has to effect the promotion in accordance with 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.
7.1. In this matter, the provisions of Departmental Circular No 152 of 2020 together with the Employment Equity profiles apply. There is reference to employment equity to the advertised post. It is not disputed by the applicant that African females are under-represented to the advertised post. The applicant has no issue with the three shortlisted females, including the appointed candidate. The argument relied on by the applicant that he was a better candidate than Dr Rabapane, has no merit. As per the requirements of the advertised post, the applicant and Dr Rabapane stand no remote chance to be appointed in the advertised post. Finally, it defies logic that the applicant argues that the process was irregular only on a basis that he was a better candidate than a person who was not appointed at the end. `
8. AWARD
8.1 Application is dismissed.

NICHOLUS SONO
ELRC COMMISSIONER: DATE: 06 OCTOBER 2023