IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT KOKSTAD
IN THE ARBITRATION
BETWEEN
NAPTOSA OBO NKUNJANA P APPLICANT
AND
DEPARTMENT OF EDUCATION – KZN 1ST RESPONDENT
SADTU OBO SHEZI P 2ND RESPONDENT

ARBITRATION AWARD

CASE NO PSES578-18/19KZN
DATE/S OF HEARING 27 MAY 2019-23 JANUARY 2020
DATE AWARD SUBMITTED 09 FEBRUARY 2020
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 as amended (LRA) at the Department of Education offices in Kokstad on 27 May 2019 at 10h00. Mr MM Mbewana an official from NAPTOSA represented the Applicant. Mr W Chiya an official from NAPTOSA was an observer. Mr EBD Mpembe an official, represented the first Respondent, (Department of Education Kwa Zulu Natal). Mr MG Mawu an official from SADTU represented the second Respondent, Ms P Shezi.

ISSUES TO BE DECIDED

2. 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
3. This is a promotion dispute involving post no 754 HRM NO 39/2017 being the principal post for Zizamele primary school. The Applicant occupied this post in an acting capacity.
4. After the post was advertised, the Applicant, the second Respondent and other candidates applied for the post. The second Respondent was appointed with effect from 04 June 2018.
5. The Applicant alleged that the interview process was plagued by irregularities on the part of the departmental representative and union observers.

SURVEY OF EVIDENCE AND ARGUMENT
Employee’s case
6. In summary, the Applicant testified as follows: She is an educator. She joined the department of education in 1992 at Mlindazwe school in Bizana. In March 1993 she joined Zizamele primary school.
7. During the interviews ground rules were given by the chairperson. She became aware of the outcome of the interviews on 11 June 2018. The circuit manager brought the second Respondent to the school and introduced her as the principal of the school

8. Mr Siyabonga Myeni (“Myeni”) second witness testified as follows: He was part of the Interview Committee (IC) for the principal post at Zizamele primary school. He was the chairperson of the IC. Prior to attending the interviews, they were trained by the department on how to conduct interviews. On the day of interviews, there was one observer from the South African Democratic Teachers Union (SADTU). It was Mr Stemela. During interviews Mr Stemela indicated that scores for the Applicant be changed. They scored candidates as per their observation. They were forced to change scores and were informed that they robbed candidate number three. They were in agreement that scores be changed and they were changed.

9. He further mentioned that after the interviews, the following day on 01 March 2018 he visited the circuit manager Ms Mpofana. He explained all that transpired during the interviews. They were advised to write letters. A SGB meeting was convened. Letters were written as per the advice of the circuit manager. The department did not respond to their letters. The circuit manager visited the school together with the second Respondent and introduced her as the principal of the school. They did not accept her and requested the circuit manager to respond to their letters.
10. Ms Nomsa Zulu(“Zulu”) third witness testified as follows: She was part of the IC. Interviews were conducted. All the candidates were scored; an issue arose on the scores that were awarded to the candidates. She scored all the candidates. The Applicants marks were reduced as she did not speak well. After the interviews they preferred the Applicant and recommended her. She further mentioned that there were letters that were written to the department. The circuit manager visited the school with the second Respondent and introduced her as the principal of the school. They did not accept her. They wanted responses on the letters that they wrote to the department.

11. Ms Nomonde Dlamini (“Dlamini”) fourth witness, testified as follows: She is an employee of the Respondent as an educator, at Zizamele primary school since February 1994. She was part of the IC; her role was that of a secretary. On the day of the interview’s questions were drafted, expected answers not drafted. Interviews took place, scores for candidates were discussed. Marks for candidate number two (Applicant) were changed. Candidate one and three spoke well and for a long time. They all agreed to change the scores. She also made reference to Bundle “A” page 21 and page 25. Three letters were written to the circuit office. In June 2018, the second Respondent was introduced as the principal of the school.
Employer’s Case
The first Respondent.
12. The first Respondent called two witnesses. Their evidence is summarised as follows: Mr Xolani Stemela(“Stemela”) first witness, testified as follows: He was deployed by SADTU as an observer. On the day of interviews when he arrived at the venue, he noticed all candidates were SADTU members. The interview process unfolded. The performance of the candidates was not the same. When the process came to an end, all candidates left the venue. The scores were discussed. The panel discovered what was recorded to the Applicant, was not correct. The Applicant was awarded high marks that she did not deserve, based on her performance.

13. Mr Zolani Dlamini (“Dlamini”) second witness, testified as follows: He was employed by the first Respondent as the school principal at Emvubukazi JSS. On the interviews conducted on 28 February 2018, he was a departmental nominee (Resource person). Bundle “B” page 11 paragraph 12.1 page 12 paragraphs 12.1.3, 12.1.4, 12.1.5, 12.1.6, 12.1.7 were read into the record. He mentioned that he complied with all the above clauses. He also shared the challenges he experienced during interviews, there were three candidates interviewed on the day in question, the Applicant spent most of her time writing and less in giving verbal answers. There was time allocated which was seven minutes, which all candidates were made aware of. In the case of the Applicant most of her time she spent on writing and two minutes to give verbal answers. Two minutes was not sufficient to give proper answers. What was written was not considered. The was one trade union that attended- SADTU, others were invited but did not attend e.g. NATU. All the Applicants were known to him as they were all educators. In relation to the scores he stated, the scores were changed as per the suggestion from the panel, Stemela enquired about the marks of the Applicant. The panel members confessed that they were wrong by awarding the Applicant high marks. He further mentioned that not at any stage did he threaten the IC members and influence them.

The Second Respondent

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

ANALYSIS OF EVIDENCE AND ARGUMENT
15. 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.
16. I have considered the departmental guidelines for sifting, shortlisting, interview procedures, HRM no 39 of 2017, as well relevant case law.
17. 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”.
18. I have to decide whether the Respondent acted fairly or not in not appointing the Applicant in the position of the principal at Zizamele primary school.
19. It is common cause that the Applicant acted as the school principal at Zizamele primary school prior to the appointment of the second Respondent.
20. It is important to note that there is no right to promotion however there is a right to be given a fair opportunity. In the present case the Applicant was given an opportunity to compete for the post. She was shortlisted, she was invited for the interviews which she attended. The outcome of the interviews was not satisfactory to her. She lodged an unfair labour practice dispute relating to promotion to the Council.
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. There is no evidence placed before me by the Applicant that the appointment of the second Respondent was arbitrary, furthermore no evidence before me that the second Respondent was dishonesty and misled the interviewing panel.
23. The Applicant argued that the interview process was plagued by irregularities on the part of the departmental representative- Dlamini and union observer Stemela.
24. Both [ Dlamini and Stemela] were called as witnesses by the first Respondent. Stemela testified about the role he played during the interviews. He stated “during the discussion about scores he intervened when it became clear that the Applicant was awarded high marks that she did not deserve based on her performance”. In doing so he was in line with clause 15.4. His evidence was not disputed by the Applicant. Under cross-examination he disputed that he intimidated the panel as was suggested by the first two witnesses of the Applicant. Under cross-examination he maintained that the interviews were conducted fairly.
25. Dlamini testified and mentioned that “all panel members confessed that they were wrong by awarding the Applicant high marks”. During cross-examination the evidence of Dlamini was not challenged by the Applicant. Dlamini also mentioned that the Applicant utilised most of her time in writing than giving viva voce responses. The evidence of Dlamini again was not challenged by the Applicant. There is a big danger in not cross-examining the witness on relevant and important aspects, generally that suggest that the evidence and testimony of that witness should be accepted. Courts have commented on this issue, in ABSA BROTHERS (PTY) LTD V MOSHOANA AND OTHERS (2005) 10 BLLR 939(LAC) the court stated that it was an essential part of the administration of justice that a cross- examiner must put as much of his case to a witness as concerns that witness. He has not only a right to cross -examination but, indeed also a responsibility to cross- examine a witness if it is intended to argue later that the evidence of the witness should be rejected. A failure to cross-examine may in general imply an acceptance of the witness testimony.
26. The Applicant testified and called three witnesses in support of her case. Their evidence has been summarised above; it will not be repeated. All the Applicant’s witnesses were part of the interview committee. They were the members of the school governing body at Zizamele primary school. They all had a good relationship with the Applicant. They all wanted the Applicant to be the principal at Zizamele primary school. It is evident on Bundle” A” pages 23-26, all the letters written by the SGB to the first Respondent appealing that the Applicant be appointed as the principal of Zizamele primary school.
27. In BUFFALO CITY PUBLIC FET COLLEGE v CCMA & OTHERS [P 372/12] [2016] ZALCPE “the Court held that in unfair labour practice disputes particularly in those relating to promotions, the onus is on the employee to prove that he/she is a suitable and better candidate for the position in question”.
28. Did the Applicant prove that she was the suitable and best candidate? What became clear was that all the SGB members who formed part of the IC wanted the Applicant to be the principal of the school. It did not matter to them how she performed during interviews; they awarded her high marks. Awarding her high marks did not qualify her to be the best candidate. Based on their evidence which was not disputed by the first and second Respondent, that when Applicant acted as the school principal, everything was in order, they worked well with the Applicant, the school was governed properly. I believe that they were genuine. They wanted someone that they knew, which in this case was the Applicant. I believe they awarded the Applicant high marks on that basis. No doubt the Applicant was a suitable candidate, was she a better candidate? No evidence was placed before me that she was a better candidate. It would be unfair to other candidates to make an assessment on any other factors, than what is observed during the interview process.
29. Procedural fairness- the Applicant failed to challenge the Respondent on procedural fairness. None of the Respondent’s witnesses were challenged on procedural irregularities, secondly none of the Applicant’s witnesses including the Applicant testified on procedural irregularities.
30. Based on what I have highlighted above, I am not convinced by the Applicant’s evidence.
31. I find that the Applicant failed to discharge the onus placed on her on the balance of probabilities, that the conduct of the first Respondent amounted to an unfair labour practice, relating to promotion as contemplated in section 186(2)(a) of the Labour Relations Act 66 of 1995 as amended.

AWARD
32. There was no unfair labour practice committed by the Respondent.
33. The Applicant is not entitled to any relief.
Signature:

Commissioner: Siziwe Gcayi
Sector: Basic Education