IN THE ELRC ARBITRATION
BETWEEN:
NAPTOSA obo NISHA SEWPERSADH the Applicant”
and
DEPARTMENT OF EDUCATION – KWAZULU-NATAL 1st “Respondent”
NATU obo MSOMI Z 2nd “Respondent”
ARBITRATION AWARD
Last date of arbitration: 21 MAY 2024
Closing arguments: 03 JUNE 2024
Date of award: 12 JUNE 2024
Arbitrator: NTOMBIZONKE MBILI
Education Labour Relations Council
ELRC Building, 261 West Avenue
Private Bag X126
Centurion
0046
Gauteng
RSA
Tel: 012 663 7446
Fax: 012 643 1601
E-mail: cindyfoca@elrc.org.za
Website: www.elrc.org.za
DETAILS OF HEARING AND REPRESENTATION
1. The arbitration commenced on 26 October 2023, proceeded on 30 January 2024, 27 February 2024, 04 April 2024, and the presentation of evidence was finalized on 21 May 2024. Both parties thereafter requested and were granted permission to submit written closing arguments by no later than 03 June 2024.
2. The arbitration was held at the Pietermaritzburg offices of the KwaZulu-Natal Department of Education.
3. NAPTOSA, a trade union, referred this dispute on behalf of its member, Nisha Sewpersadh (hereinafter referred to as the Applicant.). The Applicant was represented by Mr Rishal Juguth, a Union Official from NAPTOSA.
4. The Respondent, the Head of the KwaZulu-Natal Department of Education (the Department,) was represented by Mr ST Daniso, employed by the Department as an Assistant Director for Labour Relations and the second Respondent was represented by Mr Njabulo Mtolo, a Union Official from NATU.
5. Bundles of documents were submitted on behalf of the Respondent and the Applicant respectively. The proceedings were digitally and manually recorded. The services of an interpreter were utilized.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
6. The arbitration is in respect of a referral by the Applicant of an alleged unfair labour practice as provided for in section 186 (2) of the Labour Relations Act 66 of 1995 (LRA) related to Appointment/Promotion.
7. I am required to decide whether the second respondent misrepresented herself in her application for the post of Principal, and if so, whether such misrepresentation renders her appointment an unfair labour practice. The Applicant seeks the post to be set aside and the process to be started afresh from the shortlisting stage.
BACKGROUND
8. Post number 1480 was advertised in HRM 35 OF 2021. The post description pertains to the Principal position at Rosefern Primary School. Both the Applicant and second Respondent were shortlisted and interviewed for the position. The second Respondent was appointed to the post on 01 September 2022. The Applicant alleges that the second Respondent misrepresented the information provided on her application pertaining to the period she acted as an Acting Principal and this put her at a disadvantage from being appointed as the successful candidate.
SUMMARY OF EVIDENCE AND ARGUMENTS
The Applicant’s case
1ST WITNESS
9. The Applicant gave evidence and stated that she was employed by the Department on 01 January 1990, was initially employed as an Educator and later appointed as a Departmental Head Post Level 2.
10. The Applicant stated that in both the Z83 form (application form) and EHR7 curriculum vitae the second Respondent (Ms Msomi) recorded that her work experience at Rosefern Primary School as Departmental Head/Acting Principal was from June 2018 to the time of the application, which was incorrect.
11. The Applicant argued that the second Respondent was placed as an Acting Principal on 01 September 2020 up until the time of application. She stated that the false information supplied by the second respondent on the application form strengthened the second Respondent’s opportunity to be shortlisted and interviewed and put her at a disadvantage. She said that she had 13 years of experience as a Departmental Head, which is a managerial position and stated that if the second respondent did not misrepresent the period she acted as an Acting Principal, it would have placed her in a better position to be the successful candidate.
12. She added that the second Respondent signed the application form, declared, and accepted that the information she supplied was true and correct, which was far from the truth.
13. The Applicant confirmed that the second Respondent was shortlisted on merit, but it was also possible that she could have been shortlisted because of the misrepresentation recorded on her application form.
14. The Applicant was referred to the second Respondent’s curriculum vitae and she confirmed that the second respondent recorded “no” when questioned if she had acted as a Principal for two years or more.
15. The Applicant further confirmed that she was ranked third by the interviewing committee and that even if the second Respondent was not appointed as Principal, she would not have been the successful candidate.
2ND WITNESS
16. Mr Rajith Ramjathan testified as the Applicant’s second witness. He stated that he was part of the shortlisting committee and played a role of Resource Person. He said that his role entailed ensuring that the process was fair, narrow the candidates to five and to guide the Governing Body.
17. He submitted that employees that had acted in a post for 12 months or more were automatically shortlisted once that post was vacant and advertised. He added that the second Respondent was however shortlisted on merit by the shortlisting committee.
18. He stated that during the shortlisting process a SADTU representative objected to the second Respondent’s application form and stated that it was incorrect that she had acted as Principal from June 2018. The witness contacted Ms Ngidi, the Circuit Manager, to seek clarity and guidance and Ms Ngidi advised the committee to continue with the process and that the Department would verify the information. He went on to state that the Shortlisting Committee agreed to continue with the process and that the process was done fairly.
The Respondent’s case
1st Witness
19. The Respondent called Ms Zizile Msomi, the second Respondent, as its first witness. Ms Msomi stated that she was promoted in 2017 as a Departmental Head and was placed in June 2018 as the Departmental Head at Rosefern Primary School. She stated that she was placed as Acting Principal on 01 September 2020.
20. She went on to state that the information she supplied on the application form and curriculum vitae was true and correct and that Ms Ngidi, Circuit Manager, validated her application form.
21. She was referred to page 26 of Bundle A and questioned on the reasons why she recorded on the application form that she served as a Departmental Head/Acting Principal at Rosefern Primary School from “June 2018 to current”. She answered and said that at the time of application she provided services to the Department both as a Departmental Head and Acting Principal. She continued to state that she further clarified her respective work experience in detail under clause 1.15 of the application form, which stated as follows: “I am a visionary educator with 10 years’ experience. She went on to state that she had led as a DH for 4 years and currently an Acting Principal.” She submitted that she further indicated on the cover page of the application form that she had acted less than two years as an Acting Principal.
22. She denied that she had deliberately not separated the period of service as a Departmental Head and Acting Principal to place herself at an advantage.
2nd Witness
23. Ms Nokuthula Mchunu testified as the Respondent’s second witness. She stated that she was the Chairperson of the Shortlisting Committee. She continued to state that the shortlisting process commenced, candidates were scored and shortlisted. She went on to say that after the candidates were shortlisted the SADTU Official objected to the second Respondent’s application and said that she misrepresented the period of experience as an Acting Principal and insisted that the candidate be sifted. The witness stated that the second Respondent was shortlisted on merit and her application was considered holistically.
24. Under cross examination the witness stated that once a discrepancy or confusion is picked up on a candidate’s application, the first point of reference is to seek guidance and advise from Ms Ngidi as the Circuit Manager. She continued to state that the SADTU official attempted to influence the process and appeared as being too involved.
3rd Witness
25. The Respondent’s third witness was Ms Thulisile Carol Ngidi. She stated that she was employed by the Department as a Circuit Manager. She submitted that she validated the second Respondent’s application and that entailed checking the authenticity of the information provided in the application.
26. She stated that when she was contacted regarding the confusion pertaining to the second Respondent’s application, she enquired whether the second Respondent was shortlisted based on her Acting experience or on merits. The committee confirmed that she was shortlisted based on merit. She added that she further requested that the committee check the answer provided by the second Respondent when questioned as follows: “Have you been acting in the post for two years or more?”, the committee stated that the second Respondent replied “NO”. She denied that she influenced the process and stated that she does not get personally involved in the process.
27. She confirmed that a grievance was lodged in respect of the above post and stated that the outcome of the grievance hearing was that the process had to be started afresh from the interview process. She said that the Interviewing Committee was elected by the Governing Body.
ANALYSIS OF EVIDENCE AND ARGUMENT
28. This matter is a promotional post dispute related to post number 1480 as advertised in HRM 35 of 2021.
29. In a matter such as the present where an applicant is claiming that she has been subjected to an unfair labour practice, the applicant bears the onus to demonstrate that she has been subjected to an unfair labour practice by being overlooked for promotion in circumstances where she was the better candidate for appointment in the position. This determination will involve a comparison with the successful candidate for the position. In casu it would mean that the applicant ought to have presented evidence demonstrating that she was the better candidate of all the candidates that applied for the position. See in this regard the case of Buffalo City Public FET College v CCMA & Others (P372/12) [2016] ZALCPE 18. The applicant in this regard, did not quite make out a case that she was the best candidate but instead focused on alleged inflation of experience. This in my humble view does not necessarily make her entitled to be promoted or appointed in the promotional post or suggest that she was subjected to any unfair treatment by the employer.
30. In the present case, the applicant alleges that the second Respondent had misrepresented her period as Acting Principal in her application for the said post. She did so by failing to differentiate her period as an Acting Principal to that of her Departmental Head experience. In both the Z83 and EHR7 the second Respondent is alleged to have stated that her experience at Rosefern Primary School as “DH/Acting Principal” from “June 2018 to current”. The applicant alleges that this misrepresentation placed her at a disadvantage to be the successful candidate and strengthened the second Respondent’s application to the point of being appointed into the position.
31. The Respondent on the other hand disputed the submissions of the Applicant and stated, for a misrepresentation to be one which would justify the setting aside of the appointment it must have been a material misrepresentation. The Respondent argued that the Second respondent was shortlisted based on merit and not because she was an Acting Principal.
32. The Applicant appears to suggest that she was the better candidate compared to the second respondent and is convinced that if the second respondent did not misrepresent the period as Acting Principal, she would have been the successful candidate. The applicant confirmed that the second respondent based on her work experience, ought to have been shortlisted on merit. It lacks logic why the applicant believes that she would have been the successful candidate if the second respondent was not successful, I say this because the applicant ranked third in the interview process.
33. The question that then remains is whether the second respondent’s application should have been sifted based on the alleged misrepresentation. It is undisputed that the second respondent was placed as Acting Principal on 01 September 2020. The second respondent’s explanation for not differentiating the period as an Acting Principal to that of her Departmental Head experience was that at the time of application, she worked both as DH and Acting principal. I am inclined to accept the second Respondent’s explanation based on the following observations. The second Respondent on the first page of the application form stated that she had been acting for less than two years in post. This suggests that the second respondent had no intention to deceive or misrepresent her period as Acting Principal. If regard is had to the second Respondent’s detailed description of her work experience with the department, she clearly states that she has 10 years’ experience as an Educator, four years as a Departmental Head and was at the time of application the Acting Principal. On the application under “current permanent post” the second respondent recorded “Departmental Head.” It stands to reason that no person could reasonably believe that the second Respondent misrepresented herself to strengthen her application and to disadvantage the applicant. Put differently, there is not sufficient evidence before me to suggest that the second Respondent misrepresented herself in her application.
34. The witnesses called by the Respondent gave their evidence fluently and confidently. They were believable as they were not afraid to make concessions where called on to do so even where those concessions appeared to be against the Respondent’s case. This accordingly gave me the impression that their evidence was probable and credible.
35. The applicant was quite defensive in her approach, and I was most concerned about the way the applicant changed her approach from stating that the second Respondent was shortlisted because she deceived the shortlisting committee by suppling the incorrect information about the period she acted for, but on the other hand conceding that the second respondent ought to have been shortlisted based on merit.
36. In any event in promotional disputes there are limited grounds on which a Commissioner may interfere with a discretion which had been exercised by a competent party. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. An employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously or for insubstantial reasons or based upon any wrong principle or in a biased manner. See in this regard the case of Arries v CCMA & Others (2006) 27 ILJ 2324 (LC). I have not been presented with evidence to suggest that the exercise of the discretion by the employer not to appoint the applicant warrants any interference. I accordingly will not interfere with the discretion of the employer.
AWARD
I accordingly make the following award:-
1. The First Respondent, the Department of Education-KwaZulu-Natal, did not commit any unfair labour practice against the applicant, Nisha Sewpersadh.
2. The referral is dismissed.
NTOMBIZONKE MBILI
Arbitrator 12 JUNE 2024
ELRC1020-22/23KZN