IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT MTHATHA
IN THE ARBITRATION
BETWEEN
NAPTOSA OBO MNQOTHO O APPLICANT
AND
DEPARTMENT OF EDUCATION – EC 1ST RESPONDENT
SADTU OBO NDZAMELA W 2ND RESPONDENT

ARBITRATION AWARD

DATE/S OF HEARING 11/05/2023, 15/06/2023 & 21/08/2023
DATE AWARD SUBMITTED 14/09/2023
NAME OF PANELIST SIZIWE GCAYI

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter was set down for arbitration in terms of section 191(5) of the Labour Relations Act 66 of 1995 (LRA) at the Department of Education offices in Mthatha on 11/05/2023, 15/06/2023 and 21/08/2023 at 09h00. Mr A Mhlontlo an official from NAPTOSA represented the Applicant. Mr K Dalasile an official, represented the first Respondent, (Department of Education Eastern-Cape). Mr S Gashi an official from SADTU represented the second Respondent, Mr W Ndzamela
2. The proceedings were electronically recorded and manually recorded. The parties handed in bundle of documents in support of their cases. The Applicants bundle was named bundle A, Respondent No1’s bundle named bundle B. The parties were given up until 28th August 2023 to submit their closing arguments to the Council.

ISSUES TO BE DECIDED

3. I am required to determine whether an unfair labour practice relating to promotion was committed. Further, depending on my finding, l am required to determine the appropriate relief.
BACKGROUND OF THE DISPUTE

4. This is a promotion dispute involving post no 232- volume 1 of 2022 being the principal post for Zanokhanyo Senior Secondary School.

5. After the post was advertised, the Applicant, the second Respondent and other candidates applied for the post. The second Respondent was appointed as the School principal at Zanokhanyo SSS.

6. The Applicant alleged that the application form of the 2nd Respondent was incomplete. It had defects. 1st Respondent was bias towards the 2nd Respondent. The relief sought by the Applicant, that the appointment of 2nd Respondent be reviewed and set-aside. The post be advertised again.

SURVEY OF EVIDENCE
Employee’s case
7. The Applicant testified himself and called no other witness in support of his case. In summary, the Applicant testified as follows: He commenced teaching in 1998 as an SGB educator. In the year 2002 he was employed indefinitely. He had 21 years’ experience as an educator. Currently he was the school principal at Ngqeleni SSS – grading P2. Bundle A pg 1- read on record. [ Open Bulletin for Principals volume 1 of 2022] the bulletin was opened to everyone who meet the requirements. For P2 principals- salary notch was R421 473-00. Bundle A pg 4 read on record. [ Volume 1 of 2022 ORTC 232 Zanokhanyo SSS grade 10-12 Ngqeleni ] salary notch for P3 = R 504 147-00.

8. He further mentioned that, he believed he meet the requirements, he taught at high schools for 21 years, served at management level as HOD at high school. He had certificate in management. Bundle A pg 3 read on record. [ Application form for 2nd Respondent]. He also mentioned that the 2nd Respondent did not meet the requirements to teach at FET. About the minutes of the SGB selecting panel, he mentioned that they were not available. Bundle A pg 7- minutes for panel of interview committee. Bundle A pg 11- Adopted criteria read on record. He also stated that the criteria developed was meant to side-line him. Bundle A pg 43 read on record. On 11 August 2022, there were no subjects allocated to the 2nd Respondent. The arrival of 2nd Respondent at Zanokhanyo SSS was between July & August 2022. Bundle A pg 41 and 46 read on record. In relation to the application form of 2nd Respondent pg 2,39,40,41,42 were not properly completed and therefore he ought not to have been sifted. Pg 5 no resource person. The whole process was fraud. He also mentioned that Mr Masela was the circuit manager at circuit 4. He further mentioned that if he had been appointed, it would have been a promotion for him.

Respondent’s Case
The first Respondent.
9. The first Respondent called one witness. Mr Jongile Masela . He testified as follows : He was a circuit manager at circuit 4. Zanokhanyo SSS was under his circuit after the interview processes. He further mentioned that during interview processes, he was the resource person. The role of the resource person to guide the panel from the 1st stage to the last stage. The training was conducted at Ndamase Senior Secondary school. He further mentioned that verification was conducted. They had 40 applications and only 5 candidates were shortlisted. Panel agreed on the criteria to be used. Bundle A pg 11 read on record. He emphasized that the following were important. Management experience was important as the school in question was a management post, as well as teaching experience, candidate to have 7 years’ experience minimum. He also mentioned that only HOD’s and deputy principals were shortlisted, based on Collective Agreement no 3 of 2016. He mentioned that the post was a promotion post. He mentioned that post level 1 educators and school principals were not considered. The criteria that the panel agreed upon was fair. It did not intend to exclude the Applicant. Bunlde A pg 11,12,13 & 17 read on record. On the criteria agreed upon by the panel, the Applicant was not shortlisted. On the Applicant, status, responsibility, authority would have remained the same. Zanokhanyo SSS grades were Grade 8 -12. All grades were important. It was our own making that grade 12 was more important.

The Second Respondent

10. The second Respondent closed its case without calling any witness.

ANALYSIS OF EVIDENCE AND ARGUMENT
11. It is trite that the employee bears an onus to prove an unfair labour practice as defined in section 186(2) of the Labour Relations Act (LRA) was committed by the Respondent. The Applicant has to convince the arbitrator that the conduct of the Respondent amounted to an unfair labour practice as defined and distilled from applicable jurisprudence and as envisaged in the law.

12. I have considered the departmental guidelines for sifting, shortlisting, interview procedures.

13. I have also considered the recruitment and selection policy for the department of Education-Eastern-cape.

14. I have also considered, the advert in question, Open post bulletin for principals’ volume 1 of 2022. I have also considered the Employment of Educators Act 76 of 1998, Revised PAM document.

15. Section 186(2) of the LRA reads as follows: “unfair labour practice any unfair act or that omission arises between an employer and the employee involving, unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about unfair dismissals for a reason relating to probation) or training of an employee relating to the provision of benefits to an employee”.

16. I have to decide whether the Respondent acted fairly or not in not shortlisting the Applicant for the position of the school principal at Zanokhanyo SSS.

17. It is common cause that the Applicant currently holds the position of school principal at Ngqeleni SSS.

18. In JELE v PREMIER OF THE PROVINCE OF KZN & OTHERS [2003] ILJ 13 [LC] It was stated in deciding whether the dispute involves the promotion, one has to compare the employees current job with the job or post applied for, to determine whether a promotion is involved. Some of the factors to be taken into account are: difference in remuneration, fringe benefits, status, levels of responsibilities, of authority and job security.

19. The Applicant testified that he was a P2 school principal at Ngqeleni SSS. The post in question for Zanokhanyo SSS is P3. For P2 school principals notch as per Bundle A pg 3= R421 473-00 & for P3 = R504 147-00. Therefore, there is difference in remuneration levels. The dispute before the Council involves promotion. Therefore, the Council has the jurisdiction to entertain the matter.

20. It is important to note that there is no right to promotion however there is a right to be given a fair opportunity.

21. In NOONAN v SSSBC & OTHERS [2012] 33 ILJ 2597 [LAC], “the Court held that there was no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post, any conduct that denies an employee an opportunity to compete for a post constitute an unfair labour practice. If the employee is not denied the opportunity of competing for a post, then the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by unacceptable reason”.

22. In MONYAKENI v SSSBC & OTHERS [JA 64/13] [2015] ZALAC 17 , the Court stated that there are two components to a complaint regarding a failure to promote, an employee as an unfair labour practice. The one relates to the procedure followed by the employer, the other relates to the substantive merits and it concerns the suitability of the candidate for promotion to the post in question.” The conduct of the employer may be substantively and / or procedural unfair. Substantive unfairness relates to the reason for not promoting the employee, whereas procedural unfairness relates to an unfair process applied by an employer during the course of the recruitment and selection process. [ ELRC Collective Agreement 3 of 2016]

23. In the current matter before the Council, the Applicant was not shortlisted. The Applicant challenges the procedure followed by the Respondent no1 in not shortlisting him. It was the Applicants evidence that the criteria developed by Respondent no1 meant to side-line him. Respondent no1 disputed such evidence through Mr Masela. It was the evidence of Mr Masela that the criteria the panel relied upon, excluded post level 1 educators and the school principals. In doing so, they relied upon ELRC Collective Agreement No 3 of 2016. No specific paragraph mentioned on CA no 3 of 2016 by Mr Masela.

24. When deciding whether a procedure conducted in terms of a collectively agreed procedure involves any procedural unfairness, the arbitrator should examine the actual procedure followed. From the Respondent no1, the criteria they relied on was for purposes of promoting the HOD’s and deputy principals. The motive is good as they intend to uplift the lower candidates, compared to the uplifting the candidates already in a higher position. However, in doing so they had to be in line with the job advert and inherent job requirements of the post in question. I have perused Bundle A pg 2, there is no mention on the advert that preference to be given to the deputy principals and HOD’s. The decision to uplift the HOD’s and deputy principals is good but question is when did the employer decide on this, was it before the posts were advertised or after they were advertised? If it was before, why such was not mentioned on the advert? How does one explain that juniors were considered over seniors whilst such was never communicated through proper channels, in terms of stating it clearly on the job advert? If that was after the posts were advertised did that not prejudice the Applicant who meet all the requirements as per the job advert? Did the conduct of the employer not deny the Applicant an opportunity to compete for the post? The post in question was a promotional post for the Applicant as I have indicated above, hence he applied for it. I repeat it was a promotional post, Applicant would have moved from P2 to P3. The conduct of Respondent no1 denied The Applicant of that right to compete. The criteria developed by Respondent no1 did not meet the requirements of fairness based on what I have highlighted above. The 1st Respondent did not comply with guidelines stipulated on Recruitment & selection policy for the Department of Eastern-cape, paragraph viii shortlisting.” It provides that the selection panel must determine the selection criteria based on the advert and inherent requirements of the job, taking into account Employment equity requirements”.

25. I find that the Applicant managed to discharge the onus placed on it on the balance of probabilities, that the conduct of the first Respondent denied him an opportunity to compete for the post, and that amounted to unfair labour practice, on procedural unfairness.

26. On substantive fairness, it was the Applicants evidence that the application form of Respondent no2 was not properly completed, it had missing information. Mr Masela’s evidence was that the application form of Respondent no2 had all the necessary information required. On cross-examination by Mr Dalasile, the Applicant conceded that Bundle B pg 2, para 20.9 , 20.10, 21.4, 21.3 , 24.3 ,24.4 & 24.5 were blank. In short both application forms for the Applicant and 2nd Respondent were not properly completed. There was no other evidence adduced by the Applicant on substantive fairness except what I have highlighted above. What the Applicant placed before the Council was not sufficient to prove substantive unfairness. In SUN INTERNATIONAL MANAGEMENT[PTY] v CCMA & OTHERS [JR 939/14] [2016] ZALCJHB 433. It was held that in promotion disputes in promotion disputes it is not enough to merely show that there is a breach of protocol/procedures in the recruitment process. It is also necessary for an employee to show that the breach of the procedure had unfairly prejudiced him. This means that the employee must not merely show that he was the suitable candidate for consideration but that he was the best candidate” Based on what highlighted above I am not convinced that the Applicant managed to discharge the onus placed on him in respect of substantive fairness.

27. The relief sought by the Applicant was that the appointment of 2nd Respondent be reviewed and set-aside and the whole process start afresh. I am called upon to considerer the evidence holistic not in piece meal. In these proceedings as stated above the onus is on the Applicant, in relation to the relief sought by the Applicant, I would not have been prepared to order that he selection process must repeated on account of procedural irregularity unless I was satisfied that the Applicant stood a realistic chance of being appointed had it not been for the alleged irregularity. On substantive fairness as stated above, the Applicant failed to discharge the onus placed on him.

28. In terms of section 193 [4] of the LRA an arbitrator appointed in terms of this Act may determine any unfair labour practice dispute referred to the arbitrator, on terms that the arbitrator deems reasonable, which may include ordering re-instatement, re-employment or compensation.

29. When all evidence is considered and taking into account ELRC Collective Agreement No 3 of 2016, for procedural unfairness, one moth compensation is justifiable. The Applicant is currently earning R41072-13. The Applicant is an employee of Respondent no1, therefore Respondent no1 is in possession of the bank details of the Applicant.

AWARD
30. The Applicant managed to discharge the onus placed on him in terms of procedural unfairness. The 1st Respondent is ordered to pay the Applicant R41072-72[ forty-one thousand and seventy-two rands, thirteen cents.] within 14 days upon receiving this award. To be paid into the Applicants bank account, as per Respondent No1’s records.

31. In respect of substantive fairness, the Applicant failed to discharge the onus placed on him. The appointment of 2nd Respondent is not set-aside.
Signature:

Commissioner: Siziwe Gcayi
Sector: Basic Education