In the ARBITRATION between

SADTU obo Modibe Patrick Mothupi

(Applicant)

And

Department of Education Gauteng
(1st Respondent)

S M Mchunu

(2nd Respondent)

Applicant’s representative: Mr. M. Masehela

Applicant’s address: Patrickmothupi@gmail.com

1st & 2nd Respondent’s representative: Ms. M. Ralioma

1st & 2nd Respondent’s representative’s address:
minah.ralioma@gauteng.gov.za

Details of hearing and representation

1. The arbitration regarding the alleged unfair labour practice, referred in terms of section 191 of the Labour Relations Act 66 of 1995 [as amended], ‘’the LRA’’ was heard on 27 August 2024 at the premises of the respondent situated at Wonderboom Junction, 11 Lavender Road, Wonderboom.

2. The applicant was represented by Mr. M. Masehela an official from SADTU while the 1st and 2nd respondents were represented by Ms. M. Ralioma, the Labour Relations Officer.

3. The arbitration was electronically recorded, and handwritten notes were taken. At the conclusion of the arbitration, the parties have agreed to submit written closing arguments on/before 3 September 2024.

Issues to be decided

4. I must determine if the first respondent committed an unfair labour practise when the applicant was not promoted.

5. Appropriate relief must be determined in the event of a finding that an unfair labour practice existed.

Background to the dispute

6. The applicant, who had been employed as educator since August 1997, applied for the post of Deputy Principal at Makhosini Secondary School, where he was a Departmental Head. He earns a basic salary of R20. 000. 00 per month.

7. The applicant was shortlisted and he attended an interview for the position on 14 October 2023. Following the interviews, the applicant obtained a score of 116 with while the second respondent obtained a score of 122. The interview panel then recommended that the 2nd respondent be appointed in the position.

8. The applicant seeks protected promotion.

9. The respondent’s bundle was not disputed.
10. The applicant disputed the process and stated that it must be determined if such process was wrong. No issue was taken with the qualifications or experience of the 2nd respondent.

11. Page 96 of the respondent’s bundle shows the score of the 2nd respondent as 112 and that of the applicant as 116. However, calculation of the scores of the 2nd respondent (46, 42, 43) shows that such must be 122 and that 112 was captured in error. The percentages of the 2nd respondent and applicant are captured respectively as 61% and 58% that accords with the scores given (122 & 116).

Survey of evidence and arguments

The LRA requires that brief reasons be given in an award, therefore the following is a summary of the relevant evidence given under oath and submissions made in argument all of which is not reflected in this award but had nevertheless been taken into account.

Applicant’s evidence

12. The applicant Mr. Modipe Patrick Mothupi submitted evidence in his case, in order to prove, on a balance of probabilities, that the failure to appoint him in the position of Deputy Principal amounted to an unfair labour practice.

13. Mr. Mothupi contended that during 2023 before the previous Principal, Mr. Madonsela left, the SGB meeting was convened and it was decided that internal candidates would be promoted and some educators benefited from this agreement such as the current Principal, Mr. Matshede and Ms. Matloha. When he applied for the position at Makhosini Secondary School there were rumours that a teacher from Lethabong was the preferred person. On the day of the interview, they all waited in the office of the Deputy Principal but the teacher from Lethabong was in and out.

14. According to Mr. Mothupi, he wanted to know what criteria was used to determine which candidate would be called first to the interview as he was called first. Things were done and there was a lot of speculation’ In order to prove such, he needs the minutes of the procedure that show how it was decided which candidate to call first. He is to see the roles of the interview panellist regarding the scores and recommendations made. He thinks that he would see the difference and believes there was undue influence based on allegation regarding the teacher from Lethabong.

15. It was stated by Mr. Mothupi that he met the requirements and qualified on merit. There were rumours about him before the interview regarding alleged sexual relationships with learners. He believes this was to deter him from applying.

First and Second Respondent’s evidence

16. Mr. Vincent Phiri testified on behalf of the respondent that he was the treasurer of the SGB at the time of the interviews for the position of Deputy Principal and was also the chairperson of the interview panel. They received training from the department before the interviews commenced.

17. Mr Phiri submitted that five candidates were short listed and invited to the interviews, following which the files were then submitted to the SGB for ratification. The SGB made the recommendations as per page 96 based on the scores obtained. This was then submitted to the District Director who had the authority to decide on who to appoint. The interview panel consisted of himself, the Principal, Mr Machete and a parent, Ms. Modluli, the union was present as observers during the shortlisting and interview processes.

18. In conclusion, Mr. Phiri submitted that the 2nd respondent scored higher than the applicant and that there was no truth in the contention that a person from Lethabong would be favoured/appointed. The applicant was the only candidate known to the panel as he was an educator at the school. The rest of the candidates were not known to the panel. It was an open vacancy list which means that internal and external candidates could apply. There was no SGB meeting during which it was agreed to only appoint internal candidates.

Analysis of evidence and arguments

19. I must determine if the first respondent committed an unfair labour practice by not promoting the applicant.

20. Section 186 (2) (a) of the LRA defines an unfair labour practice as follows:

(2) 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 an employee or relating to the provision of benefits to an employee’’

21. It is trite law that the onus in an unfair labour practice is on an applicant to prove that the failure of the respondent to promote him constituted an unfair labour practice as he was the suitable and better candidate for the position (Buffalo City Public FET College v CCMA and others (P372/12) (2016) ZALCPE (handed down on 4/11/2016}

22. The first requirement to prove is that the conduct complained of amounts to a promotion in other words that it would entail an elevation to a higher post. Furthermore, the dispute must relate to a failure or refusal to promote the employee to an existing vacancy.

23. An employee contending thus that the employer committed an unfair labour practice relating to promotion must prove that a post existed for which he was a contender, that this post was at a higher level than his current post and that the employer refused/failed to place him in that post. Such was common cause in this matter.

24. It must therefore be proven by an applicant claiming that there exists an unfair labour practice relating to promotion that he had actually sought promotion to the post in question, in other words that he had applied for the advertised post and was unsuccessful. It must be proven that he was unsuccessful due to unfair conduct of the respondent.

25. It was common cause that the applicant had applied for a vacant post that was at a higher level and if appointed would have amounted to a promotion.

26. The test as laid down in Sidumo v Rustenburg Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC) entails that an arbitrator is not given the power to consider afresh what he/she would do but to decide whether what the employer did was fair. If this test is applied to promotional disputes an arbitration is a review of the employer’s decision and not a hearing de novo.
27. The basic requirements for a fair promotion are that the procedure must have been fair, there must have been no unfair discrimination and the decision of the employer must not have been grossly unreasonable.

28. In order to prove that the employer’s decision was grossly unreasonable, it needs to be shown that the employer has acted irrational, capricious or arbitrarily, was motivated by bias, malice or fraud, failed to apply its mind or had exercised its discretion for insubstantial reasons or based on wrong principles.

29. In Mandla Skosana v CCMA and others (JR) 2160/15) (handed down on 6 March 2019) the Court held that in determining fairness, the proper context must be considered. There exists no separate requirement of procedural fairness in an alleged unfair labour practice. The proper enquiry thus entails whether the suspension of the benefit as had happened in that matter, was objectively justified and not irrational, arbitrary or mala fide. Contrary to an unfair dismissal dispute where a clear distinction is often drawn between substantive and procedural fairness. This is not the case when determining fairness in an unfair labour practice dispute and a more holistic approach based on all the evidence should be adopted.

30. Did the applicant prove that the actions of the first respondent in promoting the second respondent shows mala fides and/or were irrational?

31. The answer to this is a resounding ‘’no’’. The applicant dismally failed to provide any proof that the respondent acted mala fide and/or that the decision taken was irrational. The sum total of his evidence was based on rumours regarding the appointment of an educator from Lethabong. He also questioned, without any foundation or substantiation the fact that he was called first to be interviewed and required the criteria used to decide on this. There is no requirement in law that an employer must use pre-determined criteria when deciding on the order of candidates to be called into the interview. He also alluded to the fact that all candidates waited in the office of the Deputy Principal and that the second candidate was ‘’in and out’’’. If something was to turn on this, it was not testified what it was nor how this influenced the process.

32. The applicant also referred to allegations that was made about him having sexual relationships with learners. He stated that such was probably to discourage him from applying for the post. If indeed such rumours were going around, one would have expected action from the applicant to stop such, by for example lodging a grievance and/or at the bare minimum write a letter of complaint to the Principal. Such was not done and it seems that the applicant was grasping at imaginary things to create the suspicion that the process was flawed.

33. The evidence of the applicant is like air, empty and without substantiation.

34. The second respondent’s experience and qualifications were not disputed nor the fact that he met the minimum requirements. The applicant failed to prove (as he was required to do) that he was the best candidate and should have been appointed.

35. ELRC Collective Agreement 3/2016 deals with promotions and the principles applicable thereto. It is stipulated in clause 37 that there is no general right to promotion but that an employee has the right to be fairly considered when a vacancy arose. It is however expected that the best candidate be appointed but this expectation is subjected to the right of the employer to appoint a weaker candidate in the name of affirmative action to address the injustices of the past.

36. Clause 42 stipulates that the mere fact that the employee who was promoted did not score the highest marks or is not better qualified does not necessarily justify a conclusion that the decision not to promote was unfair. Clause 44 deals with the recommendation made by the SGB and it is stipulated that the HOD as employer must place significant weight on such recommendation but is not bound by such recommendation where there are sound reasons in doing so. It is required of the HOD as per clause 45 to act reasonable when making the appointment and cannot be interfered by an arbitrator purely because there may be another perhaps better decision which could have resulted by giving more weight to some factor/s and less to others. The decision of the HOD, if reasonable, will stand. The same principles are embodied in the relevant circulars, pointed out by the respondent.

37. In this matter the second respondent was the highest scoring candidate following interviews and he was recommended by the SGB as number one and the applicant as number two. The District Director is clothed with the authority to accept or reject such recommendation. The scores show such and the attempt to show that the second respondent had 112 scores was another futile attempt to grasp as straws as a calculation of the scores allocated show that it must be 122 and that the capturing of 12 was either a typing/bona fide human error.
38. In Ncane v SSSBC and others (2017) 38 ILJ; 907 (LAC); (2017) 4 BLLR 350 (LAC) the Court noted with reference to suitability that good labour relations expect an employer to act fairly but it also acknowledged 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 the employer’s substantive decision to promote a specific employee is limited and an arbitrator may only interfere where the decision is irrational, grossly unreasonable or shows mala fides.

39. The applicant failed to show that the appointment of the second respondent was irrational, grossly unreasonable or mala fide.

Award

40. The applicant failed to discharge the onus he had to prove that the conduct of the first respondent in not appointing him, amounted to an unfair labour practice.

41. The dispute is thus dismissed.

Signed at Pretoria on 10 September 2024

ELRC Commissioner E Maree