Commissioner: Nicholas Matloga
Date of Award: 13 September 2023

In the ARBITRATION between

Seshothela Mathunyane
(Union/Applicant)

And

Education Department of Limpopo
(Respondent)

DETAILS OF HEARING REPRESENTATION
1. This matter was heard under the auspices of the Education Labour Relations Council (ELRC or the Council) on 08 September 2023 in Polokwane. The Applicant represented himself, whilst the First Respondent (Education Department of Limpopo) and the Second Respondent (Malapile B.L) were represented by Masindi M.K, who is employed by the Department as Deputy Director Legal Services. The proceedings were conducted in English and digitally recorded. At the beginning of the hearing, parties submitted bundles of documents to be admitted as evidence. The employer’s bundle was named ‘Bundle R’. The Applicant’s was named ‘Bundle A’.

2. In June 2022 Applicant, who was a Deputy Chief Education Specialist, applied for the position of Circuit Manager Mogalakwena District, Mapela Circuit, which was advertised externally in the City Press dated 26 June 2022 as well as in the Departmental Circular No. 114 of 2022. Various other candidates, including Second Respondent, also applied for the same position. Second Respondent was one of the 5 candidates who were shortlisted and interviewed, and it was recommended that the Second Respondent should be appointed in the position. Subsequently on 14 December 2022, First Respondent appointed Second Respondent with effect from 01 January 2023.

3. Although the Applicant’s application and curriculum vitae were indeed received and perused by the shortlisting and interviewing panel, the Applicant was not one of the five candidates who were shortlisted for the position. Accordingly, he was not invited for an interview. The Applicant felt aggrieved about certain issues regarding the appointment process and consequently referred a dispute to this tribunal, alleging that certain irregularities occurred and asking for the process to be repeated from shortlisting or compensation. Both Respondents oppose this request and argue that the selection process which eventually resulted in Second Respondent being appointed, was indeed a fair process.

ISSUES TO BE DECIDED
4. I am required to determine whether the First Respondent acted unfairly in not shortlisting the Applicant to the advertised position of Circuit Manager: Mogalakwena District. If I find that the employer’s conduct was unfair, I must order an appropriate relief.

SURVEY OF SUBMISSIONS AND EVIDENCE
5. What follows is a summary of evidence presented at the arbitration hearing and the parties’ closing arguments on those aspects I perceived to be pertinent to the issue to be determined. The Applicant led his own testimony. The Respondents led testimony through a single witness, Ndo Mangala.

Applicant’s case
Seshothela Mathunyane testified under oath as follows:
6. He was employed by the First Respondent for more than twenty-nine years. At the time of the alleged unfair labour practice he was employed as Deputy Chief Education Specialist.

7. At some point, the employer advertised a position of Circuit Manager. He applied for the post and was not short listed for an interview. That to him came as a surprise because he knew that he met all the requirements of the position.

8. He lodged a formal grievance, but the Department failed to reply him, hence this dispute. His prayer is for the process to be repeated from shortlisting or compensation.

9. During cross-examination he testified that his total scoring in terms of the Department’s shortlisting procedure is 60 (sixty) and he deserved to be at least shortlisted for an interview. The Department violated the collective agreement regulating the issue at hand.

10. In his application he attached all the required and necessary documents including proof of his qualifications contained in Bundle A, but he was still not shortlisted.

11. Whilst still employed by the Department, he served amongst others as teacher, and school principal tasked with inter alia management of school finance. Further, he also served as deputy manager of governance facilitating finance for the schools’ principals. The positions he occupied clearly shows that he played a leadership role in education.

12. In addition, he also possesses the required computer skills because he obtained certificates in computer literacy, website design and a diploma in C plus plus programming.

Respondent’s Case
Ndo Mangala testified under oath as follows:
13. He is employed by the First Respondent as District Director Mogalakwena since 2012. He served as a panel member when shortlisting candidates for the position in question.

14. A total number of two hundred and forty-four (244) applications were received for the advertised post and hundred and eighty- five (185) were sifted in and fifty- nine (59) were sifted out.

15. Taking into account the huge number of the applications, the employee was not subjected to unfair labour practice because the panel members considered that although he met some requirements of the advertised position, he fell short of other qualifications and additional requirements as compared to the shortlisted candidates. With that being said, the employer did not even trample on the collective agreement.

16. For instance, other candidates were in possession of certificates in financial management and he was only having a module in that qualification. Further, when rating the candidates on the management position in education, the panel considered whether the candidate served in positions such as head of department in a particular school, principal, circuit manager or district manager and so on.

17. On leadership role, the panel was looking for other leadership roles candidates played outside their appointed Departmental roles. For example, curriculum leader, leader of principal forums, and head of markers. In other words, candidates which went beyond the call of their appointed position.

18. Under cross-examination he testified that since most of the candidates where in possession of financial management qualifications, the panel raised the bar by prioritising those in possession of relevant qualifications such as financial management over those who only possess a module in that qualification. The same approach was followed when it comes to leadership role, the panel had to advantage those who played other roles outside their respective appointed roles within the Department. The other two female candidates were shortlisted on the basis of employment equity.

ANALYSIS OF EVIDENCE AND ARGUMENT
19. I will not regurgitate the evidence as led by the parties but only give brief reasons for my findings as required by section 138 (7) of the LRA.

20. Section 186 (2) (a) of the LRA, defines unfair labour practices with regard to promotion as follows:
“‘Unfair Labour Practice’ means any unfair act or omission that arises between an employer and an employee involving …unfair conduct by the employer relating to the promotion… of an employee”

21. In terms of Section 186 (2) (a) disputes relating to unfair labour practice relating to promotion, the employee bears the onus of proof on a balance of probabilities.

22. In other words, an employee who alleges that he or she is the victim of an unfair labour practice bears the onus of proving the claim on a balance of probabilities. The employee must prove not only the existence of the disputed labour practice, if it is disputed, but also that it is unfair. Mere unhappiness or a perception of unfairness does not establish unfair conduct.
23. What is fair depends upon the circumstances of a particular case and essentially involves a value judgement. The fairness required in the determination of an unfair labour practice must be fairness towards both employer and employee. Fairness to both means the absence of bias in favour of either. According to Du Toit, ‘unfair’ implies failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended.

24. An employee who wants to persuade a court or employment tribunal that there was unfair conduct relating to promotion and that the employer’s decision should be interfered with, has an onerous task. This is so because an employee has no right to promotion but only to be fairly considered for promotion. In addition there is a presumption of regularity, expressed by the Latin maxim omnia praesumuntur rite esse acta in terms of which it is presumed, in the absence of evidence to the contrary, that all the necessary procedural formalities pertaining to an official act have been complied with and that the decision was made properly, validly, correctly, regularly and honestly.

25. An arbitrator should exercise deference to an employer’s discretion in selecting candidates for promotion. The function of an arbitrator is not to second-guess the commercial or business efficacy of the employer’s ultimate decision. Nor is it an arbitrator’s function to determine whether the best decision was taken. The test should rather be whether the ultimate decision arrived at by the employer was a reasonable decision in the sense that it was operationally and commercially justifiable on rational grounds.

26. There are two conflicting versions before me. The employee argued that he was subjected to unfair labour practice because the employer failed to shortlist him despite his qualifications and the required skills for the advertised post. The employer contended that the Applicant was not subjected to any unfair labour practice because other job applicants had qualifications and skills relevant to the core functions which were better than his.

27. As indicated earlier, in determining the two conflicting versions between parties, the proper test or standard is proof on a balance of probabilities not that of beyond reasonable doubt, which is the burden of proof as it applies in the South African criminal law system.

28. Based on the said standard of proof, I disagree with the Applicant’s version for these reasons.
28.1. The Applicant testified that he scored himself using the shortlisting procedure which was used by the First Respondent in shortlisting the candidates for the interview. In my view that cannot in itself prove that he was accurate in his self-scoring and that he met all the required score rating because both the candidates did not score themselves, but were scored by panellists who considered other relevant qualifications and skills.
28.2. It should be emphasised that the advertisement only provides the minimum requirements of the position. Since the position was advertised both internally and externally, leading to the high number of the job applicants, it is probable that other applicants possessed relevant qualifications and skills higher than that of the Applicant.
28.3. Shortlisting of candidates for an advertised position is a task which involves a value judgement from the panel and faced with a high number of applications, the panel had to employ different fair criteria to sift the candidates to the required number of five.
28.4. Taking into account the number of the applications, the panel had the necessary powers to raise the bar and give preference to those in possession of more qualifications relevant to the position.
28.5. The Applicant testified under cross-examination that in his application he attached all the required and necessary documents including proof of his qualifications contained in Bundle A. Mangala testified that for instance other candidates were in possession of certificates in financial management and that the employee only had a module in that qualification. When perusing the employee’s bundle of documents, I find that there were no financial management qualifications attached.
28.6. Mangala testified further that on leadership role, the panel was looking for other leadership roles candidates played by the applicants outside their appointed Departmental roles. For example, curriculum leader, leader of principal forum, and head of markers. In other words, candidates who went beyond the call of their appointed position. There is no evidence in the Applicant ‘s bundle of documents that he played other roles outside his appointed position with the Department.

29. When looking at the facts and evidence, it is my considered view that all the necessary procedural formalities pertaining to an official act have been complied with by the employer and that its decision was made properly, validly, correctly, regularly and honestly. Further, that the ultimate decision arrived at by the employer was a reasonable decision in the sense that it was operationally and commercially justifiable on rational grounds.

30. To this end, it is my finding, iin light of the above stated reasons, that the employee failed to prove on a balance of probabilities that he was subjected to an unfair labour practice as alleged.

AWARD
31. The Applicant, Seshothela Mathunyane, was not subjected to an unfair labour practice by the Respondent, the Education Department of Limpopo.

32. No order as to costs is made.

N.S Matloga
Arbitrator/Panellist: ELRC