Case Number: ELRC203-24/25GP
Commissioner: PAUL PHUNDU
Date of Award: 9 September 2024

In the ARBITRATION between

SADTU obo Vinwalathavie Moodley
(Union/Applicant)

And

Department of Education-Gauteng
(1st Respondent)

Mpho Mudau
(2nd Respondent)

Union/Applicant’s representative: Mr Enock Shishenge
Union/Applicant’s address:

Telephone:
Telefax:

Respondent’s representative: Mr Joseph Munengwane
Respondent’s address:

Telephone:
Telefax:

Details of hearing and representation

[1] This is the award in the arbitration between SADTU obo Vinwalathavie Moodley, (hereinafter referred to as the Applicant) and Department of Education-Gauteng.
[2] The arbitration hearing was held under the auspices of the Council in terms of section 191(5) (a) of the Labour Relations Act 66 of 1995, as amended (the Act). The award is issued in terms of section 138 (7) of the Act.
[3] Bundle of documents marked annexure “A” and “R” were admitted into evidence and the content was not disputed.
[4] The proceedings were digitally recorded. I have also kept handwritten notes.
[5] Both parties filed written closing arguments.
Issue to be decided

[6] I am required to establish whether the Respondent committed an unfair labour practice in relation to promotion or not, if so, I must determine the appropriate remedy.
Background to the issue

[7] The Applicant is presently employed by the Respondent as LP 1 Educator at Noordwyk Primary School.
[8] The Respondent advertised Post no: JE83ED1028 (Departmental Head) and the Applicant applied for the position.
[9] The Applicant was shortlisted, invited to an interview, she chose not be interviewed, and ultimately not appointed.
[10] She declared a dispute alleging unfair labour practice regarding promotion. In the main, the Applicant alleged that the interview panel were conflicted, not properly constituted and the successful candidate lacked the required qualifications.
[11] Conciliation failed and the certificate of non-resolution of the dispute was issued. The matter proceeded to arbitration. In terms of relief, the Applicant seeks that the recruitment and selection process be restarted.
Survey of arguments and evidence
The Applicant’s case

[12] Ms Vinwalathavie Moodley testified, under oath, that she is employed by the Respondent as LP 1 Educator at Noordwyk Primary School.
[13] She stated that she applied for the Departmental Head position as advertised by the Respondent. She was shortlisted, invited to an interview but refused to be interviewed because, according to her, two of the panel members were not proper and they were going to be bias against her. The two panel members are Mr A Ngobeni, the chairperson of the interview panel as well as Ms L Eloff, the Principal of the Primary School.
[14] Ms Moodley indicated that the Principal of the School, Ms Eloff, was conflicted and biased against her. She further indicated that the chairperson of the interview panel, Mr A Ngobeni, was also conflicted and biased against her.
[15] Ms Moodley further stated that Ms Eloff pre-mandated the panel members to choose the 2nd Respondent.
[16] Ms Moodlely conceded that she walked out of the interview room because she did not believe that Mr Ngobeni and Ms Eloff were going to be fair.
[17] Ms Moodlely said the chairperson should have asked Ms Eloff to recuse herself.
[18] Ms Moodley further indicated that the 2nd Respondent, Mr Mpho Mudau, does not have the required qualifications, experience and skills for the advertised position. She concluded by stating a new panel should be appointed so that the whole appointment can be re-started.
[19] Under cross examination Ms Moodley conceded that she did not submit any application for the recusal of both Ms Eloff and Mr Ngobeni. She further agreed that she does not have any proof confirming conflict of interest and she failed to demonstrate and prove the allegation against Ms Eloff and Mr Ngobeni.
[20] Ms Moodley further confirmed that she initially applied for this position and realised that she was not shortlisted and lodged a grievance. She conceded that her grievance was attended to before the interviews and that selection and recruitment process was nullified. The position was re-advertised and she was eventually shortlisted.
[21] Ms Moodley conceded that she was ignorant and had waived her right to be interviewed when she decided to walk out of the interview room.

[22] Ms Moodley agreed with the Respondent when it presented documentary evidence showing that the 2nd Respondent had all the necessary qualifications, skills and experience for the position.
The Respondent’s case

[23] The Respondent did not call any witness and it opted to close its case.
Analysis of evidence and arguments

[24] Although I have considered all the evidence I will only refer in this award to those aspects relevant to determine the dispute, as I am required in terms of s 138(7) of the LRA to provide an award with brief reasons.
[25] Section 186(2) provides that; (i ) “unfair labour practice” means an unfair act or omission that arises between an employer and employee involving – (ii) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee”. The unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee.
[26] The onus is on the Applicant to prove, on a balance of probabilities, an unfair act or omission on the part of the Respondent that gives rise to an unfair labour practise.

[27] The dispute was referred as an allegation of an unfair labour practice concerning promotion.
[28] I am therefore required to determine whether the Respondent’s conduct was fair or unfair in not promoting the Applicant to the position of Principal. To succeed in such a claim, the Applicant must show that the Respondent’s conduct was arbitrary, capricious and therefore unfair.
[29] I am not persuaded and also not convinced by Ms Moodley’s testimony that the Principal and the Chairperson of the Interview panel, Ms Eloff and Mr Ngobeni were conflicted, biased and pre-mandated to choose the 2nd Respondent. The reason I reject this testimony is because it was not supported and substantiated by any shred of evidence. No evidence was adduced by Ms Moodlely to corroborate this allegation.
[30] I disagree with Ms Moodley that the Chairperson of the Interview panel (Mr A Ngobeni) should have asked Ms Eloff to recuse herself. In my view, it was Ms Moodley’s responsibility to apply for the recusal of Ms Eloff. Moreover, Ms Moodley failed to submit an application for recusal of either Ms Eloff or Mr A Ngobeni. In my view, both Mr Ngobeni and Ms Eloff were oblivious to Ms Moodley’s thoughts at the time.
[31] It is further my finding that there is no procedural unfairness in as far as the appointment of the successful candidate is concerned.
[32] I accept Ms Moodley’s testimony that she was ignorant and had waived her right to be interviewed when she decided to walk out of the interview room.
[33] I am satisfied and convinced that the 2nd Respondent had all the necessary qualifications, skills and experience for the position.
[34] I am not persuaded and also not convinced by the Applicant’s testimony that the Respondent has committed an unfair labour practice concerning promotion.

[35] As a result of the above, I am reluctant to interfere with the decision of the 1st Respondent to appoint the 2nd Respondent into the contested position. The Respondent has demonstrated that its discretion to appoint was not exercised capriciously and it was also not based upon any wrong principle and it was also not biased.

[36] In Aries v CCMA & others the Court held 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 held further 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”.

[37] I therefore make the following award:
Award

[38] The Applicant has failed to discharge the onus to show that the 1st Respondent has committed an unfair labour practice concerning promotion
[39] The Applicant is not entitled to any relief.
[40] The Applicant’s referral of the dispute is dismissed.

Commissioner Paul Phundu