In the ARBITRATION between:

SADTU obo G.P. ZUMA Applicant

and

KZN DEPARTMENT OF EDUCATION 1ST Respondent)

B . MBAMBO 2nd Respondent)

Union/Applicant’s representative : Mr V. Naidoo

Union/Applicant’s address : P.O. Box 48461

Qualbert

4078

Union/Applicant’s Telephone No’s : 084 272 9994

Union/Applicant’s Fax No’s : 033 3871872

Respondent’s representative : Mr I. Pillay

Respondent’s address : Private Bag X 9137

Pietermaritzburg

3200

Respondent’s Telephone No’s : 033 8465411

Respondent’s Fax No’s : 033 8465208

DETAILS OF HEARING AND REPRESENTATION

This arbitration was held on 12 May 2009 in Pietermaritzburg. The applicant was represented by Mr V. Naidoo of SADTU and the first respondent by Mr I. Pillay, a departmental representative. The second respondent elected to stand by the first respondent’s case.

ISSUE IN DISPUTE

The issue in dispute is whether the respondent committed an unfair labour practice by failing to short list the applicant for the post in dispute.

APPLICANT’S OPENING STATEMENT

Applicant submitted that the process followed was flawed as not all procedures were followed and not all curricula vitae were read and would call a member of the selection panel to attest thereto.

RESPONDENT’S OPENING STATEMENT

Respondent submitted that the short-listing process for the post DOE 75/07 HRM 6/2007 was fair. The panel was duly appointed and all prescripts were followed.

SURVEY OF EVIDENCE AND ARGUMENT

APPLICANT’S CASE

The first witness for the applicant was NTUBEKO ZUMA who testified that :

She was a member of the panel for the post in question. There were 209 application’s for the post.

Not all the CV’s were read on the day but only those that the chairperson of the panel said were relevant were read. If the CV was too long or too short or the qualifications were not correct the CV was excluded. In other panels she had been involved on, they had read all the CV’s. This was a short listing process and not a sifting process. She did not know why the panel did not read all the CV’s.

Short listing criteria were developed, the chairperson read out the CV and the panel scored it using the consensus method. At the beginning of the first day she was not aware of how the process would work as the consensus method was never explained to him.

The panel was correctly reflected in the minutes but for the fact that De Klerk had not completed the process. The criteria for short listing were recorded in paragraph 4 of the minutes. The CV’s that were not read were signed and put one side. She was not sure how many CV’s were read and believed the short listing process would take five days, but it had taken only two.

The short list was drawn from the CV’s that were read. The balance were placed in a box.

They were excluded for reasons such as being too thick, the applicant was from a high school or leadership was too long. The chairperson had said some of them were too long but they had not counted the words.

She confirmed that she had signed FORM 2, the list of short listed candidates. At times she had raised objections as to the manner in which the shortlisting was being done but unfortunately she was the only one in the foundation phase and the only one that had a problem and was outvoted. This was on issues like the candidate being in a high school. Even if they had primary school experience they would be excluded. She did not know if the reasons for exclusion were minuted.

Under cross examination she testified that :

She conceded that the applicant’s CV was scored. She did not know the applicant and did not know why she was called as a witness, other than the applicant’s representative had asked her to testify.

She was currently in the rank of Deputy Chief Education Specialist. AT the time, the chairperson of the panel was a Deputy Chief Education Specialist in FET for English at Empangeni.

She was the chairperson on other panels and believed she should have chaired this panel as she was the foundation phase DCES. She conceded that she was upset and bitter at not being appointed as chairperson as she felt her status had been undermined. She had even written to the Minister about it.

She confirmed that the applicant’s CV had been read and conceded that she did not know how the applicant had then been prejudiced. She agreed that the applicant could not have been prejudiced but felt that some candidates were prejudiced.

She confirmed that the post in question was from the foundation phase. She had been the only one on the panel from the foundation phase and thus knew all the schools. Foundation phase should not have been used as a criteria as they were shortlisting and not sifting.

As panelists they do not see the names of the applicants. The secretary reads out the CV. She disagreed that she was upset because she scored the applicant lower than the encumbent because it was in order to do so as she did not know the identities attached to the CV.

She conceded that she had not asked for any of her objections to be noted and agreed that the short listing criteria had been accepted by the panel and applied but she had kept quiet in this regard.

She stood by the panel’s rating of Mbambo’s CV higher than the CV of the applicant.

Besides the issue she raised of CV’s being excluded, she contended that the process was not fair but could not say why, save for the fact that not all the CV’s were read. She could not say what prescript required each CV to be read irrespective.

She conceded that qualifications and experience were a fair criteria to use and they could be used as a cut off to determine which CV’s were read, which is what the panel did do.

She did not complain about the fact that the chairperson read the CV’s as that was neither here nor there.

All panelists had scored the CV’s that were read and a final score was computed by the chairperson. No discrepancies had been raised and no one raised any objections.

She conceded that it was better that the chairperson was not from the area and did not know any of the candidates.

She did not comment when it was put to her that the applicant’s CV was scored and she suffered no prejudice.

Under re-examination she testified that :

She found it odd that the CV’s were in the hands of the chairperson and not the secretary because it is that’s person’s role and responsibility. The CV’s that were not read were rejected.

She was not sure that as a panel they were allowed to change the criteria. Not reading all the CV’s made the process unfair.

RESPONDENT’S CASE

The first witness for the respondent was BEHEKA MAKHATHINI who testified that :

He was Chief Education Specialist with TLS GT in Vryheid and was the chairperson for the post in question.

During the short listing, after the initial formalities, the panel sat and worked on criteria for short listing. There was a large number of applications, 209 in total. Consequently they had to adopt an approach to get a manageable number of applications without unfairly discriminating . The panel agreed on the criteria and emerged thereafter with a short list.

None of the panelists had objected to the criteria and no issued were raised. As a panel, they had done a number of interviews before and they knew that it took a day to read about twenty five CV’s and thus they had to get a manageable number to work with. All the panelists had agreed on this. The criteria agreed on were designed to minimize the number of CV’s to be dealt with. From experience, they had established that some of the CV’s would be incomplete in terms of certificates being attached, lacking substance and such. These applicants were usually not short-listable and they were put aside. Usually the unions are present and those applications put aside are checked by the unions to ensure that they were correctly put aside. The unions however did not arrive, despite being invited, but the panel were satisfied that they had been correct in their dealings with the applications. No panelist had raised an issue with any of the CV’s that were set aside.

The criteria had been consistently applied across the board. The panelists never knew who the candidates were and just had the numbers on the CV to work with. They all saw the CV’s and worked together.

The process of minimizing the applications did not affect the applicant as her CV was read and scored. However, at that point he would not have known. Even if the process was flawed, it did not affect the applicant negatively.

The Form 1 on page 69 was a consolidation of individual scores of the panel. The secretary filled in the scores and the panelists all signed their agreement. The scoring was consensus based. He disagreed with the applicant’s version that he wrote the scores down. What he had done was to indicate to the secretary what the consensus score was. No one had objected to any of his consensus scores, except for on the odd occasion were there was a large difference in the range of scores, that would then be discussed until there was agreement. He explained the respective scores for the applicant and Mbambo and how they were attained through consensus.

A comparison of the appointee’s CV, Mbambo, and that of the applicant clearly shows Mbambo,s has a bias toward the foundation phase, which was the panel’s criteria. Mbambo’s reflected being an HOD in foundation phase and many bullet points referring to the phase. The applicant’s CV on the other hand reflected no such clear bias, having only a reference to “phase planning”, from which it could not be ascertained whether the person operates in the foundation phase or not.

Mbambo had also trumped the applicant insofar as leadership roles were concerned. The CV was also lacking in terms of comparative qualifications. It was evident to the panel that Mbambo’s CV was clearly supreme. Mbambo went on and was interviewed and is the successful candidate. No one from the panel had expressed any doubt about Mbambo’s candidature.

Regarding the claim that he had kept the CV’s, the CV’s were in the secretary’s car most of the time. On the occasions when the secretary did not have a car, he had kept the them and there is nothing wrong with that unless there is a claim that he tampered with them, which claim had not been made. There was also nothing in the collective agreement precluding this.

That certain CV’s were not read did not effect the applicant as hers was read. That they were read or not is irrelevant for the purposes of this arbitration. The unions had been invited and did not avail themselves of the opportunity.

He denied that CV’s that were too long were discarded as being far from the truth. In any event, applicant had never raised such an issue at the time. He also denied the claim that CV’s were put aside based on the picture of the candidate as being ridiculous.

Prior to the shortlisting, he had approached the witness, Zuma, to advise her she is on the panel and he had potential days to discuss with her. She had told him that she would not participate because she did not understand why she was not the chairperson because the encumbent would report directly top her. She would have no part of it and she had claimed to have written to senior HR managers of the department as well as the MEC indicating her displeasure. He had told her that he had not appointed himself and on the day, Zuma had appeared and was duly welcomed onto the panel. After her arrival, the matter proceeded smoothly and there were no issues or complaints. It is the chairperson’s role to guide the process to its conclusion.

There were distinct similarities between the criteria in the minutes and clause 2/2005. They were not ‘rejecting’ CV’s but were but reducing the number to a manageable amount that could be short listed. Sifting is done at head office. Some CV’s do slip through the cracks but are accommodated in terms of the short listing criteria. The purpose of the shortlisting criteria as in the minutes was to get to a manageable number. They are consistent with the requirements of the post. The advert for the post informed the criteria.

Pg 103 – 105 was the bulletin involved and described the requirements for a Senior Education Specialist and informed the requirement for the candidates to have a strong foundation phase bias which was most definitely consistent with the inherent requirements of the post.

No evidence was led to support the claim that the Form 1 was not properly drawn up but it was as he had described in his testimony. The numbering was correct – Mbambo and the applicant were numberered 8 and 42 respectively which is consistent with the schedule.

Under cross examination he testified that :

The panel did not have a schedule of rejected candidates as sifting takes place at another time and venue. The criteria the panel used was to eliminate applications, not to reject them. They had created their own criteria for this purpose but he disagreed that this amounted to changing the collective agreement. The collective agreement gives broad guidelines, for example, “appropriate experience”. It is up to the panel to determine what is appropriate. The panel had not used the criteria at para 4 of the agreement to eliminate CV’s. That referred to sifting. They short listed and used the criteria para 8.

He denied that the panel was confused between short listing and sifting. They had used factors beyond the criteria in the collective agreement to reduce the numbers of the 209 applications but did not do anything contrary to the collective agreement. Using foundation phase as a criteria was discriminatory but it was fair discrimination. The panel had powers to decide what fair criteria was. The Constitution allowed for fair discrimination.

Because the applicant was involved in junior primary, her CV had been read.

All leadership roles were considered, but it was given more weight if it was in the foundation phase.

The short list can only comprise five spaces, so one way or another, the panel has to come up with criteria to reduce the numbers. The criteria were not crafted to suit the CV’s.

All CV’s had been gone through and had had the criteria applied. That it had been concluded in two days was not a directive imposed by him on the pane, it was just how long it took.

He denied that because he had the CV’s in his car he had access to read them and influence the panel. It was not possible to read all the CV’s nad then still influence the panel.

He had not found it odd that he had chaired the panel without having experience in foundation phase. Anybody could chair.

Under re-examination he testified that :

A mechanic, not working in education and not teaching in foundation phase would not have had his CV read. A specialist and most relevant candidate in foundation phase was being sought. Candidates trying to get into the profession at specialist level were eliminated.

Applicant had not pointed to any prescript precluding them developing criteria or where the panel was precluded from reducing the number of CV’s or why CV’s could not be kept in his possession.

_______________

The second witness for the respondent was PATRICIA MBAMBO who testified that :

She was currently in the position of SES : Foundation Phase. She had a Diploma in Junior Primary (First Class), a BA degree, ABET and is currently studying towards B.Ed (Hons). She had taught in the foundation phase at different grades for nineteen years. In 1998 she had been appointed as HOD in foundation phase. There was no criteria used which precluded her appointment by her not complying with it.

Under cross examination she testified that :

She applied for the position because she believed her qualifications were adequate. She expected a fair process but not all candidates could be short listed.

ANALYSIS OF EVIDENCE AND ARGUMENT

Both parties submitted oral closing arguments which I have taken into consideration. It is common cause that the applicant was not short listed or interviewed for the post in question and was not recommended for the position.

Applicant has argued that she was unfairly treated in that the interviewing committee developed its own criteria as opposed to using those in Collective Agreement 2/2005 and consequently violated the procedure. Respondent has argued that the applicant was not successful in being shortlisted as she did not meet the selection criteria, which were developed by the selection committee.

Be that as it may, the net result is that the applicant was not short listed and was not successful in her application. To my mind, the question of why she was not short listed and the actions of the respondent in excluding her candidature are what this dispute turns on.

The evidence in the form of the shortlisting minutes indicates that the selection panel adopted the following criteria to ‘eliminate’ CV’s:

1. No CV attached;

2. No comprehensive CV;

3. CV without sub-topics according to the Collective Agreement No.2

4. No mention of foundation phase;

5. Very slight mention of foundation phase”

6.

Makhatini’s evidence on behalf of the respondent was that the criteria discussed for short listing was based on the guidelines in 2/2005. This is supported by the minutes of the short listing process.

Collective Agreement 2/2005 provides that the selection committee :

“…shall conduct short listing according to:-

§ The guidelines contained in Annexure A of this document;

§ The criteria used must be fair, non-discriminatory and in keeping with the Constitutionof thecountry;

§ The list ofshortlisted candidates forintyerview purposes should not exceed five [5] per post unless…;

§ The responsibility and requirements of the post must be considered.”

Applicant’s dispute is premised on the fact that certain CV’s were eliminated on this basis without being read and this she claims is unfair. Applicant also contends in her referral form that the committee “did not develop sort listing guidelines taking into account the inherent requirements of the post and used unfair discriminatory criteria to short list applicants” and also that the scores of the CV’s were not substantiated and each application was not numbered according to the schedule. Applicant subsequently abandoned this claim.

It is common cause that the applicant’s CV was read and scored. Applicant cannot then claim to have been prejudiced by the procedure used by the committee. Applicant has not led any evidence to the effect that she has the qualifications and experience that is superior to the second respondent, Mbambo. At issue here is whether an unfair labour practice has been perpetuated by the respondent against the applicant. The applicant has lodged the dispute and it must be considered in that context. It is not a dispute raised on behalf of all or any of the other candidates. In this regard, the applicant’s CV was read and it was scored. That is not in dispute. On respondent’s version, she did not meet the score thereshhold to be short listed.

That being the case, applicant has attacked the criteria used to eliminate the number of scheduled applications. The evidence has shown that there were 209 such applications after the sifting process was concluded. The selection panel adopted as one of their criteria to short list that of having experience in foundation phase. Applicant has merely made the bald allegation that no all CV’s were read and thus the process was unfair. It is not in dispute that all CV’s were not read. It would appear though, that the applicant has misconstrued the difference between sifting and eliminating applications at short listing. In the former, CV’s are sifted out and excluded from further consideration on the basis of reasons such as incomplete applications, not candidates not following directions, insufficient qualifications etc. The reasons why a an application can be excluded for consideration at sifting are detailed din paragraph 4.3 of 2/2005. Seemingly, the panel’s incorporation of some of these reasons into the elimination of CV’s at short listing has led to some confusion on the part of the applicant. Applicant has not led evidence of any prescript requiring all CV’s to be read. So too, has applicant failed to dispute or provide evidence that any of the CV’s not read at short listing were rejected because of criteria other than that identified by the short listing panel.

Applicant argues against the developing of additional criteria to reduce the number of applications at short listing. This is disingenuous. It is trite that a short list cannot exceed five applications. Applicant loses sight of the fact that the schedule of applications considered at short listing will contain applications where all candidates would have met the minimum requirement for appointment. If not, they would have been excluded at sifting. In casu then, respondent had some 209 applications to narrow down to five. It cannot be held that it was not entitled to adopt criteria to do so, as long as it did so in accordance with clause 8 of the relevant collective agreement. Respondent’s witness testified that the primary criteria was that of experience in foundation phase. The criteria invoked related to an inherent requirement of the job and on the face of it I cannot see that it was unfair. Certainly it might be discriminatory but then ultimately the entire process of choosing one successful candidate out of a number of hopefuls is by nature discriminatory in practice. There is nothing inherently wrong with that if it amounts to fair discrimination as it undoubtedly was in this instance, the selected criteria being based on the inherent requirements of the job.

Makhatini testified, correctly so, that the collective agreement provides only general guidelines for selection criteria. The specifics are decided on upon by the selection panel. In this case the panel exercised its discretion in using a criteria based on experiential requirements in foundation phase to reduce the number of applications. In essence, the panel has simply implemented a tool to determine which CV’s are most relevant. Makhatini testified that the bulletin advertising the post described the requirements for a Senior Education Specialist and further informed the need for the candidates to have a strong foundation phase bias.

Respondent argued that it was ludicrous to expect that each CV that reflected no experience in the foundation phase should be read just for the sake of it, knowing it had no relevance. It is this that the applicant objects to. I cannot disagree with the respondent’s argument in this regard. Applicant seemingly does not understand the subtleties between sifting and eliminating at short listing. In essence, eliminationat short listing is a further round of sifting, that is, once more stringent criteria are established, those that then do not meet them are eliminated. It was at this point that the applicant’s candidature came to an end.

The witness, Zuma for the applicant did not impress me and it was clear that she had an axe to grind as she was not the chairperson of the panel. Clearly she was upset and felt slighted by this and I am inclined to believe that this is what prompted her testimony, rather than the need to support the claim of the applicant. I was left with the uneasy perception that Zuma was using her testimony as a conduit for her grievance at not being appointed a s chairperson. That being said, no evidence was led that the appointment of Makhatini as chairperson was improper and the claim of Zuma that she should have been was adequately rebuffed by the respondent. There is simply no prescript that compelled Zuma to be appointed. Either way, her disquiet, justified or not, takes the applicant’s case no further.

Zuma ultimately conceded that the applicant’s CV was duly read and scored, she had not objected to the criteria being used at the time, there was no flaw in the scoring system used and that experience in foundation phase was a valid criteria to eliminate applications and that the selection committee was correct in applying it. These concessions in essence, is why the applicant’s claim to unfairness must fail. She cannot claim and has simply not shown where she was prejudiced by the process used. I get the distinct impression she is clutching at the issue of CV’s not read to gain a second bite at the cherry.

When pressed under cross examination as to why the process was unfair, she could not respond. On her own version, Zuma scored the applicant less than the second respondent. At the time, she did not know who she was scoring, and this evidence to me is indicative that the procedure utilized worked and was fair. It was never the contention either, of this witness that the applicant should have been short listed.

Applicant has not contested the fact that the second respondent was suitable for appointment. Her dispute then must stem from her disappointment at not being short listed and can be no more than that. No evidential basis has been laid to show that she oughtto have been short listed or that the process was in any other way fatally flawed to the extent that it justified being redone.

To my mind, the net result of any short listing process is that an interview panel is mandated to identify a number of candidates who, in their opinion, they predict would best be able to meet the demands of the post. Their burden thus would be then to identify the five most suitable potential candidates out of a number of suitable candidates. It follows that if a candidate was not thought to be as suitable, their task would also be to so identify such candidates.

An employer is guilty of an unfair labour practice if it commits any form of unfair conduct relating to the promotion, demotion or training of any employee or relating to the provision of benefits. The word unfair implies a failure to meet an objective standard, which includes conduct that is inconsistent, arbitrary or capricious, whether negligent or intended. The allegation would be that the failure to promote was unfair for a reason other than discrimination. Such a reason could be that the employer acted in conflict with its own policies or did not follow correct procedures. In this regard, I take the point of the respondent who has argued that the applicant, by virtue of her candidature being considered when her CV was scored, has validated the process which lead to their short list.

When evaluating the fairness of the failure to promote or appoint, it must be borne in mind that fairness thereof will always depend on the particular circumstances of the matter at hand. To my mind, for the applicant to establish unfairness on the part of the respondent, it is not sufficient to simply state that she believed the process was unfair simply because some CV’s were not read. Respondent, through its witness, Makhatini, gave an proper explanation for that. That the applicant had some experience and was qualified is not in dispute. The panel, through it s application of the process and selecet criteria, simply concluded that she was not sufficiently experienced to be short listed. Whist the applicant may have demonstrated an impressive CV and exposure to the functions of the post, she was not able to show why this placed her ahead of the pack and the basis for the entitlement to be short listed.

The Applicant bares the onus and it must be shown by her that the decision to short list others over her was unfair in that the employee’s actions were frivolous and arbitrary. She has not done so and the concessions of the applicant’s witness reinforce this.

Understandably the applicant must have been greatly disappointed at this turn of events. However as was stated that in the case of George versus Liberty Life Association of Africa Limited (1996) 17ILJ571(LC), Landman JP held that “an employer, will in the exercise of a prerogative which can be described as a managerial prerogative. i.e. the totality of the capacity of the employer, decide whether its activities require or make desirable the employment of an employee or the promotion of an employee … inherent in the exercise of a managerial prerogative regarding the process of selection of a candidate or recruit for a vacant post is the exercise of a discretion. In the exercise of this wide discretion, it maybe necessary for the employer to discriminate, in a sense of making a choice where a selection, between available candidates and indeed the employer may decide to defer the appointment or not to make any appointment at all”.

I have also had sight of the case of Van Rensburgh versus Northern Cape Provincial Administration (1997) 18 – ILJb1421CCMA. It was submitted that the arbitrator said the following: “as a CCMA arbitrator I have to see that justice is done between the parties in this regard, but in the present case I do not see my way open to make the order requested by Mr Van Rensburgh, namely that he be appointed for the post for which he was interviewed. Furthermore I cannot detect any aspect of the interview or the treatment of Mr Van Rensburgh at the hands of the panel that was so glaring or grossly unreasonable so as to warrant the rescission of the recommendation that the panel made and its replacement with recommendation or decisions of my own. The administration has in this case not acted mala fide, or so grossly unreasonable as to warrant an interference that they failed to apply their minds to the matter concerned.” (my emphasis)

For myself to make such a decision on behalf of the selection panel regarding re-doing the short listing process, I would require a detailed knowledge of the post, as well as the opportunity to question the panelists regarding the application of their minds to the criteria they chose. I cannot substitute myself for the selection panel and applicant did call any of the others to testify or corroborate the claims of Zuma.

Applicant has argued that Makhathini had the CV’s in his position which could lead to the perception that he tampered with them or read them and influenced the panel. Applicant has led no evidence to substantiate this claim. She did not call any other members of the panel to testify that they had been influenced and nor did they illicit this evidence from their own witness, who was a panelist. It seems no more than an act of desperation to make weight to a failed case and consequently her claim in this regard must also fail.

AWARD

1. No unfair labour practice was committed by the respondent in failing to short list the applicant for the post of SES : Numeracy : Foundation Phase : Post No. DOE / 75 /07.

2. There is no order as to costs.

S. MCGLADDERY

E.L.R.C. Panelist

02 June 2009.