In the matter between

NAPTOSA obo MNGINI, Y. & XELANI, N. Applicant

and

DEPARTMENT OF EDUCATION – EASTERN CAPE Respondent

SADTU obo N. NKUNGWANA 2nd Respondent

SADTU obo N. LUZIPHO 3rd Respondent

SADTU obo L. SIBAWU 4th Respondent

PANNELIST: Mr. C. Van Der Berg
ARBITRATION: 19 May 2015, 03 & 04 June 2015, 09 July 2015 &
19 August 2015

ARBITRATION AWARD

1.The arbitration proceeding concerned the alleged Unfair Labour Practice by the respondent as it relates to the non promotion of the applicant/s to the advertised position of Learning Support Facilitators at Special Needs Schools in the District of Cofimvaba as per circular 6 of 2013.

2. Details of hearing and representation

3. The arbitration hearing took place at the Eastern Cape Department of Education District Office in Cofimvaba on 19 May 2015, 03 & 04 June 2015, 09 July 2015 & 19 August 2015. Mr. K. Dalasile, from NAPTOSA, represented the applicant/s, Y. Mngini and N. Xelani. Mr. S. Nyalambisa and Mr. A.L. Duda represented the Respondent the Department of Education in the Eastern Cape. The 2nd, 3rd and 4th Respondents were represented by Mrs. N.Y.Y. Mboniswa from SADTU.

4. Issue to be decided

5. I am required to determine whether or not the first respondent committed an Unfair Labour Practice by appointing other candidate/s in preference to the applicant/s. In the event that I find that the respondent committed an Unfair Labour Practice against the employee(s), I will be required to determine appropriate relief.

6. The parties agreed that the following facts and issues are in dispute and must be decided by the arbitrator. Firstly the applicant’s representative must prove that the 2nd 3rd and 4th respondents did not meet the requirements for the abovementioned position and that, was it not for this irregularity, the applicant(s) would have been successful in their application for the abovementioned position i.e. they were better candidates for the position than the 2nd 3rd and 4th respondents who were successful in their applications. Secondly I am to determine whether or not the panel conducting the interviews was properly constituted. In terms of appropriate relief, the applicants want compensation in the event that I find that the Respondent committed an Unfair Labour Practice.

7. Background to the Dispute

8.The Department of Education in the Eastern Cape advertised non-teaching staff vacancies at Public Special Need Schools, internally and externally, through circular number 6 of 2013. Cofimvaba Education District had four (4) newly created posts. Four (4) of the 20 interviewed applicants were employed. The applicants in this matter were not successful in their application/s for the abovementioned positions and an Unfair Labour Practice dispute in terms of section 186(2)(a) of the LRA relating to promotion was lodged with the ELRC.

9. Applicant’s Case

10. This is a summary of the relevant evidence and does not reflect all of the evidence heard in this matter.

11. Both applicants were called as witnesses during the arbitration proceedings.

12. Both applicants confirmed that they were of the opinion that neither the 2nd 3rd or 4th respondents met the requirements of the positions advertised. They both testified that in addition to the minimum requirements the advert stated that “ a further qualification in Learning Support or Inclusive Education or Special Education or Psychological or Counseling or Remedial will be an advantage”. Both applicants once again stated that their understanding was that this was a requirement for the positions advertised and that none of the 3 respondents in this matter met these requirements.

13. Under cross examination both applicants testified that in their understanding, they should have had an advantage over applicants who did not meet this requirement and that they should therefore have been appointed instead of the respondents because of this advantage. Both applicants confirmed that they were indeed shortlisted and interviewed for the positions and that their union was present during the interviews as observers of the process.

14. Under cross examination Ms. N Xelani did not agree with a statement put to her that in the interview process, the interview panel enquires and looks at all the knowledge and skills required for the position and whether the applicants interviewed could in fact implement this knowledge and skills in the workplace. She insisted that because she had the added advantage, she should have been appointed instead of the respondents in this matter. Both applicants however could not explain and/or answer whether the fact that in the event that they failed to perhaps impress the interview panel during the interview should have any bearing on the scoring and/or outcome of the interview process.

15. Both applicants however could not dispute whether or not the other respondents in this matter also had this added advantage in terms of further qualifications but proceeded to not agree with the questions and/or statements put to them under cross examination. In this regard Ms. Y. Mngini especially disagreed stating that the profile submitted by the respondents in this matter did not clearly indicate and/or indicate at all that they had any further qualifications that would have given them an added advantage.

16. Both applicants testified that the Interview Committee should have been appointed by the Chief Director HRM & D or delegated authority and that this was not done in this matter. They could however not dispute the argument of the respondents’ representatives that in this matter the District Director, who appointed the interview panel, was the delegated authority.

17. Respondent’s Case

18. The Respondent’s representative called two witnesses to testify.

19. Mr. G.M. Plaatjie, chairperson of the interview panel, testified that it was his understanding that the interview panel was properly constituted. This was in terms of the fact that the Acting District Director was the delegated authority in terms of Circular 6 of 2007. Mr. G.M. Plaatjie confirmed that 20 candidates were shortlisted from 138 applications who passed the sifting process and that 4 candidates were appointed to the advertised positions. He confirmed that none of the unions that were present during these processes, including the interviews, objected to any aspect of the process.

20. Mr. G.M. Plaatjie further testified that the interview panel asked questions in order to determine whether the candidates could in fact do the work of the position they applied for as indicated in their applications. He explained that the interview process was there for the candidate to sell him or herself as the best candidate for the position. At the interview stage they didn’t look at the paperwork, they looked at the candidates and their ability to do the work for the position they applied for. They would only look at the application documentation and/or profiles and make comparisons in the event that there was nothing or little to choose from between candidates. At this point something such as further qualifications could be seen as an added advantage in addition to when shortlisting was done.

21. Ms. N. Nkungwana, the 2nd respondent, testified that she did indeed meet the additional requirements, which would give her an added advantage. She also explained the concept of basic requirements versus further or additional requirements, which may give an added advantage and stated that she met all of these requirements. Under cross-examination this factor was however disputed.

22.Analysis of Evidence and argument

23. This is a summary of the relevant evidence and does not reflect all of the evidence and arguments heard and considered in reaching my decision on this matter.

24. In an Unfair Labour Practice dispute the employee bears the onus to prove the Unfair Labour Practice complained of and in order to do that he must examine the reasons as to why he was not promoted and demonstrate the defect in the employer’s reasoning (see SAMWU obo Damon v Cape Metropolitan Council (1999) 20 IU 714 (CCMA) at 718 A).

25. Expressed somewhat differently, the employee must demonstrate that he was overlooked for promotion on the basis of some unacceptable, irrelevant or invidious comparison. He must show that on the criteria used to select another person above him, he stood head and shoulders above that person (see Grogan, J. Workplace Law, 6th Ed. Juta, Cape Town. 2001 at 235 and Ndlovu v CCMA and Others(2000) 21 ILl 1653 (LC) at 1653H). An employee who refers a promotion dispute must do more than just demonstrate that he has the minimum advertised qualifications and experience. He must allege and prove that the decision not to appoint him was unfair (see Ndlovu v CCMA (2000) 21 ILJ 1653 (LC)). Mere unhappiness or a perception of unfairness does not establish unfair conduct. What is fair depends upon the circumstances of a particular case and essentially involves a value judgment (see National Education Health & Allied Workers Union v UCT (2003) 24 ILJ 95 (CC) par 33).

26.In this matter the applicant’s case was that besides other generic requirements, the advert stated that “ a further qualification in Learning Support or Inclusive Education or Special Education or Psychological or Counseling or Remedial will be an advantage” and that even though both applicants met this requirement, they were overlooked in spite of the fact that some of the respondents did not meet these requirements. The applicant’s representative argued that in employing the respondents, the employer disregarded the advantage that the applicants had. It was further argued that the respondent had failed to substantiate on why the advantage that the applicants had, failed to have them appointed and that this advantage could not have been said to have ended at the shortlisting stage. The applicants’ representative argued that the applicants should have had something extra, to offset the advantage that the applicants had, other than just performance at the interviews or alternatively, the applicants must have been so poor that their advantage was obliterated.

27. The respondents in this matter however argued that they met the basic requirements of the post as advertised just like the applicants did. They were all expected to present their cases in the interview, which they did by answering five set questions, which were the same to all the candidates. It would be impossible for the ELRC and even the Employer to determine as to how the properly constituted panel awarded marks to each individual candidate. Further to that, they argued that it is the subjective nature of an interview process, which makes it impossible for the Employer to determine how the panelist awarded the marks. The process is and was observed by the Unions registered with the Council and they must raise any objection on any irregularity during the process. In this matter however the Unions unanimously accepted the interview process but agreed that it was very tight. For anyone who was not in the process, to claim unfairness, omission, irrationality, bias, interference, capriciousness, wrong principle, arbitrariness, unacceptability, irrelevance, invidiousness and failure to apply the mind by the employer is in fact misleading. All parties present accepted the result of the selection process without any duress from the Employer and all was done in good faith. The Employer as a practice, would have halted the process at any stage including employment if there were any objections raised by any persons and an investigation would ensue to address such, before any employment is done.

28. The fairness required in the determination of an Unfair Labour Practice must be fairness towards both employer and employee. In Provincial Administration Western Cape (Department of Health & Social Services) v Bikwani & others (2002) 23 ILJ 761 (LC) at paragraph [29]–[32] the Labour Court held that:

29. “There is considerable judicial authority supporting the principle that courts and adjudicators will be reluctant, in the absence of good cause clearly shown, to interfere with the managerial prerogative of employers in the employment selection and appointment process. Courts should be careful not to intervene too readily in disputes regarding promotion and should regard this area where managerial prerogatives should be respected unless bad faith or improper motive such as discrimination is present.

30. The arbitration of a promotion dispute does not entail a hearing de novo, but a review of the employer’s decision. In applying the Sidumo test to promotion disputes, it has been held that the arbitrator is not given the power to consider afresh what he would do but to decide whether what the employer did was fair (see Minister of Home Affairs v GPSSBC (JR 1128/07) [2008] ZALC 35 (26/03/2008, Labour Court) par 14).

31. In deciding whether conduct relating to a promotion was unfair, an arbitrator in a promotion dispute has a very limited function and 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 (see PAWC (Department of Health & Social Services) v Bikwani & others (2002) 23 ILJ 761 (LC) 771). There are three basic requirements for a fair appointment or promotion. The procedure must have been fair, there must have been no unfair discrimination, and the decision must not have been grossly unreasonable (see Arries v CCMA and Others (2006) 27 ILJ 2324 (LC) AND Minister of Home Affairs v GPSBC (JR 1128/07) ZALC 35 (26 March 2008) par 12). In order to prove that the decision was grossly unreasonable, it needs to be demonstrated that the employer has acted irrationally, capriciously or arbitrarily, was actuated by bias, malice or fraud, failed to apply its mind or had exercised his discretion for insubstantial reasons, or based it on any wrong principle. The conduct of the employer may be substantively and/or procedurally unfair (see Arries v CCMA and Others (2006) 27 ILJ 2324 (LC); Minister of Home Affairs v GPSBC (JR 1128/07) ZALC 35 (26 March 2008) par 12; Ndlovu v CCMA & others (2000) 21 ILJ 1653 (LC); Benjamin v University of Cape Town [2003] 12 BLLR 1209 (LC) at 1223-1224 AND Van Jaarsveld et al Principles and Practice of Labour Law (LexisNexis) para 778).

32. In light of the basic requirements for a fair appointment or promotion, I believe that the procedure was fair, there was no unfair discrimination, and the decision is not grossly unreasonable. I am not in agreement with the applicant’s representative’s argument that the interview panel was not appointed appropriately. I regard the delegation of authority to appoint an interview panel appropriate in light of the evidence presented to me.

33. In terms of substantive fairness the emphasis is not on the correctness of the employer’s decision, but on the reasonableness of the decision. Provided that a decision by the employer to appoint one candidate instead of another is rational, no question of unfairness can arise (see Ndlovu v CCMA & others [2000] 12 BLLR 1462 (LC) at 1464). This principle was expressed by our Courts in the following terms:
34. “It is quite possible that the assessment made of the candidates [by the employer during the promotion process] and the resultant appointment will not always be the correct one. However, in the absence of gross unreasonableness which leads the court to draw an inference of mala fides, this court should be hesitant to interfere with the exercise of management’s discretion” (see Goliath v Medscheme (Pty) Ltd (1996) 17 ILJ 760 (IC) at 768 referred to with approval in PAWC (Department of Health & Social Services) v Bikwani & others (2002) 23 ILJ 761 (LC) 771).

35. “The Promotion Committee was tasked with assessing all the applications and had to exercise discretion in selecting the best candidate. A court of review has no jurisdiction to enquire into the correctness of the conclusion arrived at by a body or functionary lawfully vested with a discretion. It will only be entitled to interfere with the decision taken by such a body or functionary if it is shown that it failed to properly apply its mind to the relevant issues and such failure may be shown by proof, inter alia, that the decision was arrived at arbitrarily or capriciously or mala fide, or as a result of unwarranted adherence to a fixed principle, or in order to further an ulterior or improper purpose, or that it misconceived the nature of the discretion conferred, or that the decision was so grossly unreasonable as to warrant the inference that it failed to properly apply its mind to the matter… or if there is such a material misdirection of fact that it is clear that it failed to exercise its discretion (see Jwajwa v Minister of Safety & Security & others, Case No 817 / 01 [2005] JOL 15727 (Tk)).

36. The Supreme Court of Appeal recently confirmed that a court or tribunal must not determine whether an education department could have arrived at a better decision in selecting a suitable educator for appointment to a teaching position, but whether its decision was a reasonable decision (see Head, Western Cape Education Department and others v Governing Body, Point High School and others 2008 (5) SA 18 (SCA)).

37. One has to understand that a causal connection is required in a promotion dispute before any finding of substantive unfairness can be made and before any form of substantive relief can be granted. Even if there was unfair conduct by an employer during a promotion process, this does not mean that substantive unfairness was proved. As a legal concept substantive unfairness cannot exist in abstraction. Therefore in order to prove substantive unfairness that would entitle the applicant to substantive relief such as appointment to the post, an applicant in a promotion dispute also needs to establish a causal connection between the irregularity or unfairness and the failure to promote. To do that one needs to show that, but for the irregularity or unfairness, one would have been appointed to the post (see National Commissioner of the SA Police Service v Safety & Security Bargaining Council & others (2005) 26 ILJ 903 (LC); Woolworths (Pty) Ltd v Whitehead (2000) 21 ILJ 571 (LAC) para 24 per Zondo AJP; University of Cape Town v Auf der Heyde (2001) 22 ILJ 2647 (LAC) para 35; Minister of Safety and Security & others v Jansen NO (2004) 25 ILJ 708 (LC) para 27). This in any event needs to be proved in order to prove substantive unfairness and before any form of substantive relief such as appointment or protective promotion can be awarded (see KwaDukuza Municipality v SALGBC [2008] 11 BLLR 1057 (LC). Where it is merely compensation that is awarded for a procedural irregularity, it would appear that it would be sufficient for the applicant to prove that he stood a realistic chance of being appointed. This necessarily means that she must show that not only was he better qualified and suited for the post than the successful candidate who was appointed, but also that he was the best of all the candidates who applied for the position (see National Commissioner of the SA Police Service v Safety & Security Bargaining Council & others (2005) 26 ILJ 903 (LC) para 10-12).

38. An applicant, who alleges that the employer committed an Unfair Labour Practice by not appointing him, must prove that the employer’s reasoning was defective. As already indicated above, the mere fact that the employee was qualified for appointment is insufficient in itself to prove that the employer acted unfairly. In Perils v South African Police Services [2004] 2 BALR 161 (SSSBC) it was held that an arbitrator will not interfere with the employer’s decision unless the employer has failed to apply his mind to the material consideration or has acted in bath faith. On the evidence before me there is nothing to suggest that the respondents in this matter was not an appropriate appointment.

39. In terms of procedural fairness there is a tendency to find in favour of applicants in promotion disputes on the basis of the most trifling procedural irregularities. This is not the correct approach. Even in unfair dismissal disputes, the Labour Court has rejected a checklist approach to procedural fairness and has held that substantial compliance with procedural fairness is all that is required (see Avril Elizabeth Home for the Mentally Handicapped v CCMA (2006) 27 ILJ 1644 (LC)).

40. Although PAM sets out the procedures to be followed in selecting suitable candidates for teaching positions the High Court has held, with reference to paragraph 3 of Chapter B of PAM, which is a replica of Resolution 5 of 1998, that strict compliance with PAM is not necessary, that form must not be elevated above substance and that: “One does not go digging to find points to stymie the process of appointing suitable candidates to teaching positions…” (see Observatory Girls Primary School & another v Head of Dept: Dept of Education, Province of Gauteng, Case No 02 / 15349, [2006] JOL 17802 (W); also see Douglas Hoërskool & ‘n ander v Premier, Noord-Kaap & andere 1999 (4) SA 1131 (NC) at 1144I–1145I). One should therefore be careful not to make findings too easily that an Unfair Labour Practice was committed when there was some sort of procedural irregularity. Provided that there was substantial, as opposed to strict, compliance with PAM, it cannot be said that an Unfair Labour Practice has necessarily been committed merely because PAM has not been followed to the letter.

41. In light of the above I would like to point out that the term “an added advantage” does not mean that this is the only aspect that needs to be considered in making an appointment neither can it be said to be a minimum requirement for the psotion. The process requires a sifting process, a shortlisting process and an interview process. The fact that the applicants were shortlisted and interviewed already indicates that they were duly considered for the position. All of the applicants met the minimum requirements for the position. The purpose of interviewing candidates’ are to determine whether they can apply the knowledge and skills, as stated in their profiles, as well as whether they indeed fit the profile of what the position requires in terms of KPA’s. This is purely at the discretion of the interview panel and no matter how impressive a profile, CV or qualifications may be, the interview ultimately determines the best fit for the position. The process of selection inevitably results in a candidate(s) being appointed and the unsuccessful candidate(s) being disappointed. This in itself is not unfair and as indicated above is not sufficient grounds to interfere.

42. In light of the above I make the following award.

43. AWARD

44. The Respondent did not commit an Unfair Labour Practice in not appointing the applicant(s) to the position of Learning Support Facilitators at Special Needs Schools in the District of Cofimvaba as per circular 6 of 2013.

45. There is no order as to costs

Mr. C. VD Berg
ELRC Commissioner
Port Elizabeth