Panelist: Mothusi Maje
Date of Award: 13 February 2024

In the ARBITRATION between:

Lizzy Segomotsi Merementsi
(Union / Applicant)

And

1st Respondent, Northern Cape Department of Education and 2nd Respondent, Anthea Abrahams

(Respondent)

Applicant’s representative: ADV Nathan Williams (Legal Representative)
Applicant’s address: 7 Bender Street
Hillcrest
Kimberley
Telephone: 076 111-5182
Email tmerementsi@gmail.com

Respondent’s representative: Gilbert Pisane (Deputy Chief Education)
Respondent’s address: Department of Education: Northern Cape
Private Bag X 1, Kimberley
8300
Telephone: (053) 830-1600
Email:

DETAILS OF HEARING AND REPRESENTATION

1. This is an award of the arbitration that was held on the 26 and 27 of October 2023 on Microsoft team’s link. It became part-heard and continued on 22 and 23 January 2024. Appearing on behalf of the Applicant who was also present was Advocate Nathan Williams, her Legal Representative.

2. Gilbert Pisane appeared on behalf of the 1st Respondent, Northern Cape Department of Education as its Acting Deputy Chief Education Specialist in Labour Relations. The second Respondent, Anthea Abrahams was also present and represented by Lizze-Marie Mazzoncini from Suid Afrikaans Onderwys Unie (SAOU) a Union representative.

ISSUE TO BE DECIDED

3. The issue to be decided was whether the 1st Respondent committed an Unfair Labour Practice related to promotion.

BACKGROUND TO THE DISPUTE

4. The applicant alleged that she was the best candidate for the position and the interview panel recommended her but the HOD deviated from appointing her as a Chief Education Specialist: Circuit Coordination and Reporting which was post Level 6.

5. There were allegations made by the Applicant that a Senior Manager, Mr. E.S Kistoo influenced the process of appointment of the second Respondent on 20 July 2022, based on the route form documentation.

6. The Applicant approached the Education Labour Relations Council (ELRC) alleging that her non-appointment was procedurally and substantively unfair and seeking to be promoted and or alternatively the position must be re-advertised or be compensated for twelve months.

7. The dispute was not resolved at conciliation and arbitration hearing was scheduled on 26 and 27 of October 2023 on Microsoft team’s link. It became part-heard and continued on 22 and 23 January 2024, hence this award.

8. There were bundles of documents that were also submitted by the parties. The applicant’s bundle was marked bundle A and the respondent’s bundle was marked Bundle B of documents.

9. The parties also submitted written heads of arguments on 30 January 2024.

10. Because the proceedings were manually and electronically recorded, the summary of the evidence will appear in the analysis that will follow herein under.

SURVEY OF EVIDENCE AND ARGUMENT
APPLICANT

Lizzy Segomotsi Merementsi testified as follows:

11. In order to support her case the applicant led the evidence that Bundle A on Page 1 is the advertisement of the position of Chief Education Specialist::Circuit Coordinating and Reporting which was post level 6.

12. She testified that she was the Circuit Manager when she applied for the advertised position. The position advertised was in the Frans Baard District and she met all the post requirements. Bundle A on page 11 are the minutes of the selection committee and the selection was done on 24 May 2022, Mr. Monyera was the selection chairperson.

13. It was her evidence that she has a B.ED Honours and suitable for the position and the second respondent has a further diploma which is equivalent to a degree. Bundle A on page 14 is the criteria for the experience and she is currently occupying a Deputy Chief Education Specialist (DCES) position.

14. She scored 27 points on experience whilst the second Respondent scored 24 points on experience. Her scoring on experience was 3 points higher than the second Respondent. Bundle A on page 16 was her qualification scoring of 4 points and experience she was scored 5 points and each panel member scored her 9 points.

15. Bundle A on page 22 are the minutes of the selection committee and the interviews were conducted on 14 June 2022 and Mr. Monyera was the interview chairperson. Bundle A on page 27 are the recommendations and she was the best candidate to be appointed. Anthea Abrahams was ranked the second choice together with Dr. S.P Mokobe.

16. She was the most suitable candidate who performed exceptionally well during the interview and there was no offer presented to her after she was recommended as the first ranked candidate by the HOD and it was heart breaking for her. Should it happened that she declined the offer, there was Dr. Mokobe who was tied with the second respondent

17. Bundle A on page 46 is the route form documentation which moves between different Senior Managers and their names appeared on the left side of the document. Before the document is dispatched to another Senior Manager, it must first be signed by the dispatching Senior Manager.

18. Ms. Jansen, Monyera and Mothelesi supported her nomination. Bundle A on page 50 is the same route form documentation and Kistoo received it on 20 July 2022 and dispatched it on 20 July 2022. Kistoo was the Acting Chief Director when the position was advertised and had personal interest in preparation for his own appointment. The second Respondent started to act in the advertised position from 01 October 2021 until 30 June 2022 before she was appointed by the HOD. Her evidence was that she also acted in the same position but not the same period of acting like the second Respondent. Her acting in the position was an internal arrangement with her Supervisor who was not present at work and she did not receive any appointment letter to act.

19. Bundle A on page 51 in the route form documentation is the amendment of Mr. Van Staden in the recommendations which was out of line because the Department was suing on instrument to measure the performance. The measurement can only be done by Mr. Monyera who is the immediate Supervisor. Acting in a position was used to guarantee the second Respondent’s appointment.

20. Bundle A on page 52 is the recommendation by Mr. Sekhoacha who supported her appointment and his comments cautioned the Department that deviation might cause a problem because there were two candidates on 58 points.

21. Bundle A on page 46 is the documents received by the HOD on 28 July 2022 and Mr. Kistoo signed the documents on 20 July 2022 and made a decision to appoint the second Respondent.

22. The HOD also made amendments to scratch her name and replaced it with the second Respondent’s name and she does not think that the HOD applied her mind. Bundle A on page 55 conforms the appointment of the second Respondent which was done on 21 July 2022. She did not receive any regret letter from HOD.

23. She was informed of the second Respondent’s appointment by Mr. Monyera through a WhatsApp message.

UNDER CROSS EXAMINATION

24. Her evidence was that the second Respondent has approximately 15 years of experience. The allocation of points were done fairly and the process followed was fair. According to the criteria and the requirements, both the Applicant and the second Respondent qualified for the advertised position. Mr Kistoo and Mr. Van Staden were not part of the interview panel, but they only made a comment about the acting of the second Respondent and if they were part of the panel, they would have known that she also acted in that position.

25. She should have been considered for the position and acting in a position does not guarantee any one’s appointment. All the candidates were interviewed on the same day but she was not asked about her acting in the position, but she did not volunteer to tell the interview panel about her role in acting.

26. When the position became vacant, they were asked to submit their Curriculum Vitae and all document to apply for acting. The Department made a decision to appoint the second Respondent. Her acting was an internal arrangement between herself and Mrs. Afrika who was the then CES. Mr. Kistoo was well aware of her acting after she made presentations in Kuruman.

27. She was supported by 4 Senior Managers except two Senior Managers

RESPONDENT’S EVIDENCE.

Anita Jansen testified as follows:

28. Her evidence was that she is the Deputy Director: Corporate Services in the Frances Baard District. She is responsible for EPMDS, HR which includes conditions of service, personnel provisioning and recruitment and selection.

29. The witness testified that in terms of the personnel administrative measures (PAM), to qualify for the CES position, you must have 9 years’ experience, 3-4 years qualification as an Educator and be registered with SACE. Bundle A on page 43 is the panel recommendation that all candidates are recommended for a position advertised.

30. She testified that 3 candidates met the requirements in terms of qualification and experience and they were suitable for appointment. Bundle A on page 46 to 53 is the route form which is used as tracking system. Appointment letters are generated and issued to the successful candidates. The HOD decides on the appointments of successful candidates.

31. Bundle B on page 14 was read on record and the witness further testified that she was requested to act as CCR Coordinator on numerous occasion by Mrs. Afrika in her absence. She testified that PAM outlines the procedure to follow when you are appointed to act in that you are eligible to act in a vacant position for a period of 12 weeks when the incumbent is off duty.

32. She further testified that she processes all the acting allowances for the office based Educators and School Based Educators. She did not receive any formal request for the applicant to act but there was an arranged interim process within the Department of Education in the Northern Cape.

33. The Human Resources Department draft letters in line with the appointments. Bundle A on page 54 is the drafted appointment letter until it is signed by the Executive authority. This was done in compliance with the recruitment and selection policy.

UNDER CROSS EXAMINATION

34. It was her evidence that on Bundle A page 43, there were nominations submitted. All candidates that were put forward, were all suitable to be appointed. The policy dictates that more than one candidate should be recommended in case the successful candidate declines.

35. There is a difference between suitable and the most suitable candidate and that the panel should recommend the most suitable candidate. The panel did not recommend the second Respondent as the most suitable candidate.

36. Bundle A on page 45 is the route form, it is not a policy but an internal process. The Chief Financial Officer (CFO) does not approve or disapprove appointments to the HOD. The CFO only advises the HOD on financial matters. The applicant scored higher but there was no deviation. She supported the recommendation of the applicant because the recruitment selection process were done appropriately.

37. The appointment letter are generated with the submissions to the HOD. The HOD will sign the draft appointment letter after making a decision to appoint. The offer of appointment comes before the contract of employment. The HOD signed the contract of employment for the second Respondent on 29 July 2022. But the second Respondent signed the same contract of employment on 19 August 2022.

38. The selection panel declared that each of the nominated candidates were suitable for appointment.

Thomas Van Staden testified as follows:

39. He is the Chief Director responsible for Human Resources Management and Development in the Provincial Department of Education. His global experience was that he was appointed as a Chief Director since 2010 in the National Department of Corporate Governance and Traditional affairs in Pretoria.

40. He took a transfer to the Northern Cape Department of Education in 2015 to date. His overall responsibility is to provide strategic direction and guidance to the Chief Directorate, HR and to the Organisation as a whole. He also provides guidance in terms of recruitment, selection and conditions of service to both Educators and the Public Service Association (PSA) members and employees.

41. His further responsibility is to ensure that Schools are issued with staff establishment annually. Senior Managers are involved in recruitment and selection process because when the position is advertised, depending where the position was located. The Senior Managers would provide guidance and quality assurance to ensure that a post finds expression within the Department. To ensure that the duties and responsibilities of the advertised position are crafted properly. Senior Managers are responsible to do due diligence and quality assurance to assist the authorities in making recommendations prepared after the interview panel for approval.

42. He testified that the positions advertised must ultimately meet the Department’s goal and objectives. The HOD is not an expert in all areas of responsibility within the Organisation. He knows Mr. Kistoo for almost ten years since he joined the Organisation. He worked closely with Mr. Kistoo in 2016 when he was an Acting Chief Director and worked quite closely and knows each other professionally.

43. . Bundle A on page 50 is his recommendation to the HOD that the second respondent must be considered for appointment in the advertised position. Senior Managers would always not be in agreement on who should be appointed. It is strange that the applicant alleges that he HOD’s decision is a deviation.

44. The HOD cannot just rubber stamp any recommendation from the panel. The HOD in terms of the law, has no powers vested on him or her to deviate from any decision and there is no law that the HOD must endorse the recommendation of the panel. The HOD’s decision was not solely based on Mr. Kistoo’s recommendation.

45. The HOD was confronted or presented with the interview panel report and one of the test put as the recruitment process, in some instances, is to request the candidate to write a test to test the ability to do the work. What is sometimes a curse or blessing is sometimes candidates are known by the Senior Managers and the HOD through recruitment process participation.

46. The HOD will apply his or her mind and consider the documents in front of him or her. If the HOD is familiar with the work of the candidate worked previously, the recommendation will be that work done previously must also be taken into consideration as well.

47. His evidence was that if the HOD is confronted with multitude different Senior Managers recommendations, through supports or amendments, the HOD will consider the documents submitted and comments from all Senior Managers on the route form documents because there was not only one who supported the deviation as alleged.

48. The HOD decided fairly to appoint the second Respondent based on the recommendations on the route form. Bundle A on page 51 was Mr. Van Staden who recommended the second respondent to be appointed, apart from her being on an acting position, he also recommended that the second Respondent performed very well. He looked at the performance of the second Respondent and made a recommendation for her appointment.

49. There was only one point scoring difference between the second Respondent and the Applicant and it was clear that the two candidates performed neck to neck during the interview process. The multitudes of decisions are taken in any organizations such as the Department of Education in the Northern Cape.

50. There are decisions based on recruitment, School nutrition, School sports, curriculum and exams. The purpose of a route form is to ensure that only the relevant and necessary participants would have access to the documents and will be required to provide inputs and signatures.

51. The HOD signed the appointment letter on the same day together with the contract of employment because the documents goes to the HOD office as a bundle of documents. The Applicant made allegations that Mr. Kistoo and Mr. Van Staden used the acting position of the second Respondent to guarantee her appointment which was not true.

52. The Applicant’s allegations are false because the second Respondent’s acting position could not be pre-empted on when the permanent position would be advertised very soon to make a guaranteed appointment. There is no guarantees that when a person act in a position, there is a guaranteed appointment.

53. The same process when you appoint a candidate to act in a position, is the same way when a candidate is appointed in an advertised position. Due consideration is given by management of that particular unit to recommend the most competent and appropriate candidate because the idea is to ensure that the function of the Organisation is guaranteed at all material times and should not be inhibited by vacancies.

54. Job reservation is a serious indictment in his profession. And if the allegations are true, he will be not fit to occupy the office. He referred to acting on the second Respondent solely because there was a similar process that was followed and the second Respondent did very well and due consideration was given to the best suited to assume the responsibility of the position.

55. Circuit Managers responsibilities are to ensure that the Schools are functional and they perform well.

UNDER CROSS-EXAMNIATION

56. The route form is not guided by the policy but it is an administration function internally. The Applicant was not given an offer at no point because the HOD did not approve the appointment of the Applicant. Kistoo was formally appointed in an acting position by the MEC. The three candidates met the criteria to be appointed.

ANALYSIS OF EVIDENCE AND ARGUMENT

57. The Labour Relations Act No 66 of 19951 requires employers to treat employees fairly when they apply for promotions. The statutory provision, in terms of which this tribunal may arbitrate promotion disputes, is to be found in section 186(2)(a) of the LRA, which defines unfair labour practices with regard to promotion as follows:

58. “‘Unfair Labour Practice’ means any unfair act or omission that arises between and employer and an employee involving …unfair conduct by the employer relating to the promotion… of an employee”.

59. 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.

60. Fairness to both means the absence of bias in favour of either. In deciding whether conduct relating to a promotion was unfair, an arbitrator is in a similar position to that of an adjudicator called upon to review a decision made by a functionary or a body vested with a wide statutory discretion.

61. Therefore in order to show unfairness relating to promotion, an employee needs to show that the employer, in not appointing him or her and appointing another candidate, acted in a manner which would ordinarily allow a Court of law to interfere with the decisions of a functionary by proving for example that the employer had acted irrationally, capriciously or arbitrarily, was actuated by bias, malice or fraud.

62. 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 labour practice, if it is disputed, but also that it is unfair. Mere unhappiness or a perception of unfairness does not establish unfair conduct.

63. According to Professor 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

64. In order to determine whether a fair procedure was followed in promoting a certain candidate as opposed to another. Although these procedures need to be followed, they are merely procedural guidelines and not mandatory, and need only be substantially complied with and not strictly.

65. 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.

66. 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.

67. 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.

68. 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.

69. “The Commissioner should be careful not to intervene too readily in disputes regarding promotion, especially to senior management positions, and should regard this an area where managerial prerogative should be respected unless bad faith or improper motives such as discrimination are present.

70. The legislature did not intend to require arbitrating commissioners to assume the role of employment agencies. A commissioner’s function is not to ensure that employers choose the best or most worthy candidates for promotion, but to ensure that, when selecting employees for promotion, employers do not act unfairly towards candidates.

71. Arbitrators must bear in mind that they are not qualified as employment agencies and do not have practical experience as managers in a corporate environment or in the civil service. Accordingly arbitrators are loath to prescribe to employers how they should go about in selecting a candidate for promotion.

72. There may be reasons for preferring one employee to another apart from formal qualifications and experience. The employer may attach more weight to one reason than another, may take into account subjective considerations such as performance at an interview and life skills.

73. “Inevitably, in evaluating various potential candidates for a certain position, the management of an organization must exercise a discretion and form an impression of those candidates. Unavoidably this process is not a mechanical or a mathematical one where a given result automatically and objectively flows from the available pieces of information. It is quite possible that the assessment made of the candidates and the resultant appointment will not always be the correct one.

74. There is however nothing unusual or contentious about a Head of Department relying on the assistance and advice of qualified and experienced officials within the Department. It cannot be expected of the HOD to be involved in every single aspect of the Department’s affairs. As long as the HOD makes an informed and independent decision based on the facts an information before him or her, there can be no basis for complaint in this regard.

75. The Head of Department has the power to appoint which provides that an appointment may only be made on the recommendation of a panel. It is further regulated sets out the limited grounds upon which a head of department may decline a recommendation.

76. Indeed there was a recommendation from the panel that the Applicant was a highest scored by 4 panelists and two panelists did not recommend her to be appointed. Those were the recommendations made to the HOD. The HOD after taking those recommendation into consideration, made a decision not to appoint the Applicant, but appointed the second Respondent.

77. Except for the acting in a position as was mentioned by one of the panelists, she was also recommended for doing well. One of the prerogatives for the employers to consider when making appointments is the operational decision to advance service delivery, putting the interests of learners first in the best interest of the running of the School.

78. The allegation by the Applicant that one of the panelist had an interest in the matter was disputed by Mr. Kistoo in that there was no decision taken to advertise the position he acted on and therefore, it was not possible for him to occupy the position.

79. The Respondent witness, Mr. Van Staden also took an exception that they already secured a position for the second Respondent prior to the finalization of the interview and route form documents in that the appointment letter was issued before the route forms were dispatched to the HOD.

80. It was his further evidence that the HOD applied her mind to the documents received and made a decision to appoint the second Respondent. I see no reason to doubt his evidence more so that he was honest and able to show that there was nothing sinister against the Applicant as she alleged.

81. I conclude that there was no enough evidence from the Applicant to substantiate that the Respondent through the HOD committed an alleged unfair labour practice.

82. Even if I am wrong in my finding that the first Respondent did not commit an alleged Unfair Labour Practice as envisaged by Section 186 (2) (a) of the Labour Relations Act 66 of 1996, as amended, there was no reason to consider the relief sought by the Applicant, namely: promotion to the post and compensation of 12 months, must fail.

AWARD

83. The decision of first Respondent to appoint second Respondent to the aforementioned position is hereby confirmed.

84. Applicant’s claim is dismissed.

ELRC panelist: Mothusi Maje
12 February 2024