IN THE EDUCATION LABOUR RELATIONS COUNCIL

BETWEEN:

Henry Philelani Mthimkhulu Applicant

and

Department of Higher Education & Training First Respondent
Patrick Kalonji Second Respondent

Arbitration Award

Case Number: ELRC861-20/21KZN
Date of award: 09 September 2024
J KIRBY
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration was initially scheduled to be heard remotely but all hearings at which evidence was submitted were held in person at the premises of the Thekwini TVET College at 26 Daintree Avenue, Sydenham, Durban.
2. The hearing of evidence commenced on 10 February 2023 and thereafter hearings took place over 15 days until the arbitration was finalized on 29 August 2024.
3. Throughout the proceedings the Applicant, Henry Philelani Mthimkhulu, was represented by a legal practitioner, Mr A Gafoor, of Parasram & Associates.
4. The First Respondent, the Thekwini TVT College, has also been represented by legal practitioners from the firm Hlela Attorneys throughout the proceedings to date. Ms Kweyama represented the First Respondent whilst the Applicant gave his evidence in chief and thereafter she was replaced by Mr Hlela.
5. The Second Respondent, Patrick Kalonji, represented himself and attended the proceedings sporadically. His only meaningful participation was as a witness for the First Respondent
6. The hearings were digitally recorded.

TERMS OF REFERENCE AND ISSUES TO BE DECIDED

7. The issue on which I am required to decide is whether the Applicant was subjected to an unfair labour practice relating to promotion as specified in section 186(2)(a) of the Labour Relations Act 66 of 1995 (LRA) and, if so, what relief ought to be granted to him.

BACKGROUND
8. The First Respondent disputes whether the nature of the dispute referred by the Applicant to arbitration is an unfair labour practice relating to promotion.
9. The Applicant has been employed by the First Respondent as a lecturer since February 2015. During his employment he has been appointed to act in certain managerial positions.

10. On 27 August 2020 an electronic message was sent on behalf of the First Respondent to the cellular phone numbers of certain employees, including the Applicant, inviting them to apply for the position of Senior Lecturer, R191 Engineering Studies. Those interested were required to forward their names by 9 am the following day.

11. The Applicant did not initially intend to submit his name but did so after having been contacted by his campus manager, Mncwango.
12. The Applicant was not appointed. He avers that the manner in which the First Respondent invited candidates to apply and the manner in which it conducted the selection and appointment processes were unfair.
13. The First Respondent submits that the appointment of the Second Respondent was done in terms of the Department of Higher Education and Training Department’s Acting Appointment Policy; the process was fair and, in any event, the Applicant did not meet the minimum education qualification requirements for the position. In particular, the First Respondent submits that the Applicant did not meet the necessary qualifications in the engineering field for the position. The Second Respondent was far better qualified than the Applicant in this regard. it is not disputed that the Applicant is suitably qualified in the field of education.

SURVEY OF EVIDENCE
The Applicant
14. The Applicant testified that he had served an apprenticeship of 4 years and was granted his certificate of proficiency (at page 43 of exhibit A) as an artisan in the trade of automotive machinist in 1996. This is reflected in the Certificate of Evaluation of Qualifications issued by the Department of Higher Education (DHET) at page 15 of exhibit C, which certificate also records that his qualifications were evaluated at REQV 15.
15. The criteria to be applied in making an acting appointment are included in the DHET’s Acting Appointment Policy at page 18 of exhibit A and which include that:
“Selection criteria are based on: consistent good performance, meeting of minimum requirements of the job and contractual status of the employee (permanency);
Should there be more than two people eligible for the acting post, an interview/selection process may be undertaken to determine the most suitable person for the acting post.”

16. The position in dispute had not been advertised; the Applicant did not know the criteria applied by the First Respondent in appointing the Second Respondent and he had not been told why he had not been appointed.
17. Under cross examination:
17.1. The Applicant agreed that the DHET’s Acting Appointment Policy did not require a post to be advertised or require interviews to be held; the holding of interviews was discretionary;
17.2. The Applicant agreed that he had been notified that it was the First Respondent’s intention to fill the post with an acting appointment;
17.3. The Applicant did not dispute that the certificate put up by him at page 4 of exhibit C records that it was awarded to him for “successfully completing N3 bridging course;”
17.4. The Applicant submitted that he possessed correspondence that contradicted the content of correspondence dated 27 August 2021 at page 42 of exhibit A and which includes the following:
“This letter serves to confirm (the Applicant) has passed Motor Trade Theory N3 bridging course in 2009. The course is not a full qualification nor does it carry any credits.”
17.5. The Applicant agreed that the only qualification submitted by him under exhibit D (also at page 43 of exhibit A) relevant to engineering was his certificate of proficiency as an artisan in the trade of automotive machinist. It is a certificate and not a National Diploma. He had not submitted any qualification to the First Respondent indicating that he had a National Diploma in machinery and he had not had his artisanal qualification evaluated and found to be the equivalence of a National Diploma. If he had been interviewed for the post, however, he would have had an opportunity to explain his qualifications to the interview panel. By not holding interviews, he was denied this opportunity;
17.6. The Applicant did not dispute that the letter he had obtained from Umbilo College during his testimony and a copy of which is at exhibit H, records that the certificate issued to him is equivalent to NQF level 4, which is the level also for the matriculation certificate;
17.7. The Applicant could not dispute that the Second Respondent’s foreign qualification was recognized as the equivalent of a National Diploma in Mechanical Engineering.

THE RESPONDENT
18. Andile Mncwango (Mncwango) is the campus manager of the Respondent’s Springfield Campus at which the Applicant worked. Mncwango states that:
18.1. He has been employed in the TVET sector since 2008;
18.2. The post in dispute required an applicant to be both academically (in the field to be taught; namely mechanical engineering) and professionally (as a teacher) suitably qualified;
18.3. The Applicant met the professional qualification requirement but not the academic requirement for the subject matter to be taught.
18.4. He understands a “bridging course” to be a programme designed to assist those who do not qualify to enter the course directly without having attended the bridging course;
18.5. The certificate issued by Umbilo College for “N3 Motor Trade Theory” is recorded in the letter at exhibit H as being the equivalent to a NQF level 4 qualification. This is the same level as a matriculation certificate;
18.6. The “bridging course” certificate at exhibit A41 does not reflect an SAQA reference number and would seem to simply be an internal certificate issued by Umbilo College for those who do not qualify to enter the N3 course itself. An N3 qualification requires students to pass four subjects per year. The Umbilo College certificate records that the Applicant had passed a single subject; namely, Motor Trade Theory;
18.7. The Applicant had studied at the Springfield campus for an N2 qualification but he had been unsuccessful;
18.8. He was the author of the recommendation to the Respondent’s principal at page 26 of exhibit A in which he recommended that either the Second Respondent or a certain Chiliza should be appointed to the post of acting senior lecturer: R191 Engineering Studies. Both Chiliza and the Second Respondent had BTech: Mechanical Engineering and PGEC qualifications;
18.9. BTech: Mechanical Engineering has an REQV rating of 14 and is a higher qualification than the Applicant’s N3 bridging course Trade Machinist qualifications;
18.10. The incumbent of the post had been moved to the Respondent’s Head Office. Mervin Morgan had initially filled the post in a caretaker capacity but when he had announced that he was no longer prepared to do so, it became necessary to appoint someone urgently in an acting capacity. Morgan had notified him that he was not prepared to continue in the post approximately one week before applicants were invited to apply;
18.11. Morgan had sent a message inviting all lecturers to apply for the post. As he had noticed that the Applicant was not at work and had not responded to the message, he had contacted him to ensure that he had received the message. The Applicant had confirmed that he had;
18.12. The Applicant had not at any stage prior to the appointment of the Second Respondent, complained that the procedure adopted by the First Respondent was unfair or enquired whether applicants would be interviewed;
18.13. The Applicant had given no indication that he intended to submit his curriculum vitae for consideration and, in particular, had not informed him that the curriculum vitae in possession of the Respondent should not be relied upon;
18.14. The Second Respondent acted in the post for less than one year. The post has since been filled.
19. Under cross-examination Mncwango:
19.1. Stated that while the message inviting applications for the acting position (at page 1 of exhibit C) did not specify the qualifications required to be “suitably qualified” to apply for the post, the minimum requirements for a senior lecturer, were set in the Public College Administrative Measures at REQV 13 as being NQF Level 4 plus three years relevant training or N3 plus trade certificate, plus three years industrial experience;
19.2. Agreed that the minimum requirements detailed in the employment requisition form at page 23 of exhibit A were not included in the message inviting applications (C1;)
19.3. Stated that only two applicants had met the minimum requirements for the post and that the Applicant did not as he did not possess an N3 qualification:
19.4. Disputed that the trades of fitter and turner and of automotive machinist were synonymous;
19.5. Stated that no purpose would have been served by holding interviews as ultimately only the Second Applicant met the post requirements as Chiliza could not be appointed in terms of the First Respondent’s Acting Policy as he was not a permanent employee;
19.6. Disputed that were the Applicant afforded the opportunity to present the “Certificate of Evaluation of Qualifications” (at page 15 of exhibit C) he would have been able to satisfy the First Respondent that he possessed the necessary qualifications, as the certificate records that the Applicant has “a pass in Motor Trade Theory N3” and not that he was found to have an N3 qualification.

20. Nokula Pam Majali (Majali) is the First Respondent’s Deputy Principal Corporate Services. She has approximately 32 years of experience in the HR field. She states that:
20.1. The DHET Acting Appointment Policy does not require a formal recruitment procedure to be followed for the filling of an acting position;
20.2. The said policy did not apply to the position in dispute as it was anticipated that the acting appointment would be for less than 12 months;
20.3. If the Applicant possessed an N3 qualification he would be in possession of a certificate issued by the DHET. She was aware that the Applicant had at one stage registered with the First Respondent to do either an N2 or N3 course. He would not have done so had he already possessed an N3 qualification;
20.4. A position of senior lecturer requires an appointee to be a specialist in the particular subject;
20.5. The College Principal approved the payment of an acting allowance to the Second Respondent and he would not have done so had he not approved of the appointment process;
20.6. According to PCA NQF Level 4 is equivalent to REQV10 and a BTech degree is higher than REQV10.
21. Under cross-examination Majali:

21.1. Stated that the DHET’ s Acting Policy (at page 11 of exhibit A) did not apply to the post in question as it was not anticipated that the acting appointment would be for longer than 12 months. When it became clear that the appointment would be for a longer position the post was advertised. She subsequently conceded that her understanding of the applicability of the policy had been wrong but maintained that the policy did not apply to the acting appointment but could be used as a guideline;
21.2. Initially stated that Chiliza was excluded on the basis of comparative experience but conceded that it might have been because he was not a permanent employee;
21.3. Stated that in all her years in the HR field, she had only known of three instances of applications being invited in a similar manner as the present case;
21.4. Did not agree that any lack of information in the message at page 1 of exhibit C rendered the process unfair as any applicant could have simply asked for clarification. Nobody was prevented from submitting a curriculum vitae if they had wished to do so;
21.5. Conceded that none of the signatories to the Employment Requisition Form had indicated that the appointment was an “emergency situation;”
21.6. Did not agree that the Applicant was better qualified than the Second Applicant as the requirement for appointment as a senior lecturer is to have a qualification of REQV13 in the relevant subject and the Applicant did not have such a qualification whereas the Second Respondent did.
22. William Patrick Glendon is proprietor of Umbilo Skills Training Centre that had issued the N3 Bridging Course certificate (at page 41 of exhibit A) to the Applicant. At the time of the certificate having been issued the Department of Higher Education had discontinued the N3 qualification. The certificate is not the equivalent of an N3 qualification. An N3 qualification consists of 4 subjects. The bridging course that he had offered was only in respect of a single subject; namely, Motor Trade Theory.

23. Under cross-examination Glendon stated that:
23.1. He had offered the N3 Bridging Course to provide a pathway to the N4, after the N3 had been discontinued; and
23.2. His bridging course did not enjoy national recognition.
24. Patrick Yandibu Kalonji (the Second Respondent) stated that he had obtained a three-year National Diploma in Electro Mechanical Engineering in his home country of the Democratic Republic of Congo. After his move to South Africa, he had had his qualification assessed. It was found by the South African Qualifications Authority (SAQA) to be the equivalent of a National Diploma in Mechanical Engineering. He had subsequently obtained a BTech Degree in Mechanical Engineering from the Durban University of Technology in 2015/16. The REQV rating of a BTech Degree is 14 and after he had acquired his teaching degree it was rated REQV 15.
25. Kalonji had lectured at the Respondent since 2005 and the Applicant had been a student of his when he had registered for the N2 in about 2007 and he subsequently knew him as a colleague who lectured business studies related subjects.
26. He had received the message at page 1exhibit C calling on interested persons to apply for the acting post. He had initially been reluctant to do so but after having attended a meeting the following morning at which Mncwango had reminded attendees of the invitation, he had done so. His recollection was that curriculum vitae were to be handed to the campus manager and after he had decided to apply, he had handed in an updated version of his curriculum vitae.
27. Under cross-examination the Second Respondent:
27.1. Stated that he could not recall the date of the meeting where he had decided to apply for the post;
27.2. Recalled that the meeting was after the date on which the message at page 1 of exhibit C had been sent;
27.3. Did not recall having submitted his name by SMS or email as indicated in the message at page 1 of exhibit C;
27.4. Stated that the requirements for the post would have been known to all candidates;
27.5. Stated that although the message had called for the submission of names, nothing prevented a candidate from submitting an updated curriculum vitae as he had done; and
27.6. Stated that he had held the acting post for a few months.

CLOSING ARGUEMENTS
28. Extensive closing arguments were made on behalf of both the Applicant and First Respondent. I summarize these arguments below
29. It was submitted on behalf of the Applicant that:
29.1. It was common cause that the acting post had not been advertised but that candidates were invited from “suitably qualified lecturers with necessary experience” to submit their names;
29.2. He was better qualified and has more teaching experience than the Second Respondent;
29.3. The First Respondent had not proven the qualifications of the Second Respondent;
29.4. The First Respondent had not complied with the requirements of the DHET’s Acting Appointment Policy at pages 11-22 of exhibit A; in particular it had not complied with the provisions of paragraphs 2.1.2, and 2.3;
29.5. As there was no advertisement the requirements for the post were not specified in any detail;
29.6. Insufficient time was provided for the Applicant to update his curriculum vitae;
29.7. It was unusual for the First Respondent to invite candidates in the manner in which it had. This method of not advertising a post but making use of an SMS was not used for comparable posts;
29.8. The method used by the First Respondent was unfair on the Applicant;
29.9. The requirements for the post specified in the SMS were not consistent with the requirements specified in the internal records of the First Respondent;
29.10. The Second Respondent had submitted his curriculum vitae and this was unfair on the Applicant as he had only submitted his name in accordance with the invitation to do so.

30. It was submitted on behalf of the First Respondent:
30.1. The only policy of the First Respondent that could apply to this post was the Acting Policy at pages 11-22 of exhibit A;
30.2. As the acting appointment was for less than 12 months, the appointment fell outside the scope of the Policy, having regard to clause 1.8;
30.3. Even if the policy is found to be applicable, it is with the First Respondent’s discretion to advertise a post or to not do so;
30.4. The Applicant could only be a contender for the post if he met the qualification requirement and he did not;
30.5. The Applicant was required to prove that he was overlooked for the post due to the First Respondent acting capriciously, maliciously, arbitrarily or on the wrong principles. He had not done so;
30.6. The qualifications of the Second Respondent had been established;
30.7. The First Respondent chose its method of inviting candidates due to the urgency of the situation. It was entitled to do so; and
ANALYSIS OF EVIDENCE & SUBMISSIONS
31. The Applicant bears the onus of establishing on a balance of probabilities that the First Respondent committed an unfair labour practice involving promotion.
32. I am satisfied that were the Applicant to have been appointed Acting Senior Lecturer: Engineering, being the post in question, this would have been a promotion for him.
33. Before having regard to the evidence and submissions of the parties, I shall detail certain general principles that I find applicable to the determination of this dispute.
34. For an applicant to establish substantive unfairness he must generally prove that despite being the best candidate, he had not been appointed and the appointee had been appointed whilst not possessing the same or similar skills. It is not sufficient for the applicant to simply prove that he met the minimum requirements for the post.
35. With regards to a challenge to procedural fairness, an applicant should be able to establish that an employer has not complied substantially with its own policies. What needs to be determined is did the procedure actually followed result in unfairness to the applicant. The candidate should at least be able to prove that he had been denied a fair opportunity to compete for the post by the employer by conduct that was arbitrary or motivated by an unacceptable reason or that the successful candidate had been dishonest or misled the employer.

36. The Applicant submitted that for a number of reasons the First Respondent had not complied with its applicable policy; namely, the DHET’s Acting Appointment Policy. It is common cause that the post was not advertised and that instead it invited by way of SMS sent on 27 August 2020 “suitably qualified lecturers with necessary experience for a position of an Acting Senior Lecturer to forward their names to the Campus Manager before 9 am Friday 28/08/2020.” This invitation is said by the Applicant to have been contrary to the provisions of clauses 2.1.2 and 2.3 of the said policy requiring the First Respondent to act in a fair, consistent and transparent manner. On the other hand, it was submitted in line with the testimony of Majali that the said policy did not apply as clause 1.8 limited its scope to “all permanent employees as well as employees on contract for 12 months or more.” As the acting appointment was to be for a period of less than 12 months, it was submitted that the provisions of clause 1.8 excluded it from the scope of the policy. I do not agree with this submission on behalf of the First Respondent. I find that the scope of the policy applies to all permanent employees or those on contracts for 12 or more months. The clause does not in any way refer to the acting post to be filled. This is evident from the provisions of clause 2.2.6 which states:
“The appointment to act in the senior position must be for a period longer than 6 weeks but limited to a maximum of 12 months.”
37. I find that the Applicant is a permanent employee of the First Respondent and the said acting policy applied.
38. The Applicant averred that he had been unfairly prejudiced by the Respondent having invited candidates in the manner in which it did and by not advertising the post and holding interviews, in the following respects:
38.1. The First Respondent had given insufficient notice of the acting post vacancy and only requested candidates to submit their names (and not their curriculum vitae.) This had allegedly prevented him from submitting an updated curriculum vitae. The Applicant, however, has not established what prejudice he suffered. In this regard, it is evident from page 26 of exhibit A that the qualifications that the First Respondent had on record and relied upon in considering the application of the Applicant were “N3 Bridging + Trade: machinist.” The Applicant has not proven that he has any additional qualifications that he might have been able to put before the First Respondent for consideration were he to have been given more time to submit an updated curriculum vitae;
38.2. The invitation for “suitably qualified lecturers” to submit their names differed from the internal requisition prepared in respect of the acting post (at pages 23-25 of exhibit A,) which recorded the job requirements as including:
“A minimum and appropriate REQV13 qualification in the field of mechanical engineering: National Diploma/Bachelor’s Degree or N3 plus Trade test in Boiler making/Fitting/Fitting and Turning/Motor/Diesel backed by an educational qualification.”
As the abovementioned requirements were not listed in the invitation to submit names it is alleged that it was unfair on the Applicant as the process was not transparent. No evidence of any prejudice suffered by the Applicant was given. As the Applicant believed that he was “suitably qualified,” he had submitted his name and it was considered along with the others. I find that he was in no way prevented by the wording of the invitation from competing fairly for the post.

38.3. It was submitted that appointing the Second Respondent without having interviewed candidates was unfair as the Applicant had been unable to elaborate on his qualifications and experience. On the other hand, as indicated by the First Respondent, in terms of clause 2.3.5 of the Acting Policy the holding of interviews was discretionary and only if there were two or more eligible candidates for the post. In this regard, firstly the Applicant was found not to be eligible for the acting post so is not in position to demand that interviews be held. Secondly, whilst the Second Respondent and one other were initially recommended for the post, the other candidate was subsequently excluded as he was not a permanent employee. As such, there was no need for interviews to be considered.

39. The evidence of Glendon of the Umbilo Skills Training Centre that had issued the N3 Bridging Course Certificate (at page 41 of exhibit A) relied upon by the Applicant testified that such was not the equivalent of an N3 qualification. This evidence was not disputed. In terms of the employment requisition form at page 23-25 of exhibit A possession of an N3 qualification together with a relevant trade test was a requirement for appointment to the acting position. The Applicant relied upon the certificate issued by Umbilo Skills Development Centre and him having completed his trade test as proof that he qualified to be appointed. As already indicated the evidence of Glendon established that the Applicant did not possess an N3 qualification. It was argued on the Applicant’s behalf that the job requirements specified in the job requisition form should be ignored by me as they were not included in the invitation to apply that simply called upon suitably qualified lecturers to apply. Even if I were to assume that this submission is correct, it does not assist the Applicant. There is no evidence before me indicating that the First Respondent acted unfairly towards the Applicant by preferring to appoint the Second Respondent who held a BTech: Mechanical Engineering. There is no suggestion before me that the N3 Bridging Course is a higher qualification than that of BTech. It would have been within the Second Respondent’s discretion to prefer the First Respondent over the Applicant provided that it did not act arbitrarily, capriciously or for any other improper reason and there is no evidence of such misconduct by the First Respondent.

40. Another objection to the appointment of the Second Respondent was that his qualifications had not been proven. It was the evidence of Mncwango for the First Respondent that in making his recommendation in respect of the appointment to the acting post, that he had relied upon the records in the possession of the Second Respondent. According to these records, the Second Respondent had a BTech: Mechanical Engineering Degree. In the absence of any evidence that the Second Respondent had submitted fraudulent records, I find that the First Respondent was entitled to rely upon the records in its possession and that there was no obligation on it to prove the authenticity of these records at this hearing.
41. In light of the above, I find that the Applicant has not established that the First Respondent committed an unfair labour practice relating to the promotion of the Applicant.

AWARD
42. The application brought by the Applicant, H P Mthimkhulu, in respect of an alleged unfair labour practice relating to promotion by the First Respondent, Thekwini TVET College, is dismissed.

J Kirby
Arbitrator 09 September 2024
ELRC861-20/21KZN