Panellist: Khuduga Tlale
Date of award: 27 April 2024
In the matter between:
Nomawethu Gretta Ketsekile Applicant
And
Department of Education – Eastern Cape 1st Respondent
Nosipho Mdlalana 2nd Respondent
ARBITRATION AWARD
Details of hearing and representation
1. The arbitration hearing between Nomawethu Gretta Ketsekile (“the Applicant”) and Department of Education – Eastern Cape (“the 1st Respondent”) and Ms. Nosipho Mdlalana (“the 2nd Respondent”) was held on 11 March 2024, and concluded on 17 April 2024 at Aliwal North High School in Aliwal North. The Applicant appeared in person, and Mr. M Mokoena, SADTU member represented her. Mr. X Sam, Labour Relations Officer, represented the 1st Respondent and, Adv. GD Saayman, NAPTOSA official, represented the 2nd Respondent.
2. These proceedings were conducted in English, and were digitally, and manually recorded.
Issues to be decided
3. The issue in dispute is whether an unfair labour practice was committed against the Applicant when she was not promoted to the position of CESCM05/09/2023: Chief Education Specialist: Curriculum Management at Joe Gqabi District.
Background to the dispute
4. The 1st Respondent advertised the position of a Chief Education Specialist: Curriculum Management at Joe Gqabi District with post reference number CESCM05/09/2023 with the closing date of the 29th September 2023. The Applicant occupied the position of a Deputy Chief Education Specialist: Curriculum when she applied for the said position. The 2nd Respondent occupied the position of a Senior Education Specialist when she applied for the said position. The Applicant, and the 2nd Respondent were acting as Chief Education Specialist: Curriculum, and Circuit Manager respectively.
5. The Applicant, and the 2nd Respondent were shortlisted, and interviewed for the said position. After the interviews the 2nd Respondent was ranked number 1, and the Applicant was ranked number 4. The 1st Respondent after receiving the recommendation from the interview panel approved the promotion of the 2nd Respondent. The 2nd Respondent was promoted to the position of the Chief Education Specialist: Curriculum Management with effect from 01 December 2023.
6. The Applicant referred an unfair labour practice dispute relating to promotion to the Education Labour Relations Council (“ELRC”) alleging that her non-promotion was procedurally, and substantively unfair. She sought re-advertisement of the position. The dispute was not resolved at conciliation, and it was referred for an arbitration.
7. The parties submitted a bundles of documents, which were marked bundle “A”, “B”, “C”, and “R”.
Survey of Evidence
The Applicant’s Submissions
First Witness: Ms. Nomawethu Gretta Ketsekile
8. The witness testified under oath that she was the Applicant in this matter. She acted in the said position from April 2021 to 30 November 2023. She had an expertise to act in the said position. The district was underperforming, and she improved the performance. The district director commended her for the smooth running of her section. The 2nd Respondent was part of her team in the year 2021.
9. She was the suitable candidate for the said position because of her experience as a principal. She had a curriculum knowledge, and she was responsible for early childhood development. The composition of the interview panel lacked expertise in the field. The panel members were the only district directors, and there was no line function manager. She was not comfortable with the district directors. She did not raise her concern about the composition of the interview panel. She was also not satisfied with the formulation of the interview questions.
10. She asked the panel members why their questions were not in line with the position. The panel members replied by saying they did not want to disadvantage other candidates. She was asked about her age, and when she was not promoted, she felt that her age disadvantaged her. The district director, who was her supervisor disadvantaged her because they had a disagreement towards the interviews.
11. Under cross-examination by the 1st Respondent, she confirmed that she attended the interviews, and she was asked the questions as per “R30”. The interview questions were skewed because the standard was low. The interview questions could not start with “Can you”. She had no knowledge whether those questions were asked to other candidates. She maintained that the panel was not properly constituted because there was no line function manager. She maintained that the interview panel must have a line function manager. The district directors were educators, not curriculum specialists.
12. She confirmed that the district director, Dr. Mceleli, was her immediate supervisor, and he was part of the interview panel. She was not comfortable with Dr. Mceleli being part of the interview panel because they had a tension prior to the interview. She stated that there was no question asked about her age. She maintained that the interview was discriminatory.
13. Under cross-examination by the 2nd Respondent, she stated that the shortlisted deputy chief education specialists were not qualified to be promoted to the said position. She qualified for the position because of her experience, skills, and qualifications. Document “R23” was the ranking of candidates after the interviews, and she was ranked number 4. The total score she obtained during the interviews was not authentic. Each question supposed to consist of 100 marks, and they were asked five questions, therefore, the total marks was supposed to be 500. The promotion of the 2nd Respondent was not an affirmative action appointee. She confirmed that she was found not suitable for the position. She stated that the interview was not fair, because the process was not correct.
14. Under clarity questions, she stated that other employees who acted in the positions, were promoted, except herself. She was discriminated by the panel members, and they overlooked her. She maintained that this dispute was not about discrimination.
The 2nd Respondent’s Submissions
First Witness: Mr. Zwelidumile Ntlaganiso
15. The witness testified under oath that document “R19-R27” was the interview panel recommendation. He was part of the interview process as an observer. There was no issue raised of bias by the interview panel members. All the candidates were subjected to the same questions. The scores of the panel members were the true reflection as per “R23”.
16. The 1st Respondent representative indicated that he had no questions for the witness.
17. Under cross-examination Applicant, he confirmed that he was the observer during the interview. The composition of the interview panel was fair. The candidates were ranked as per “R23”. According to his knowledge, all the candidates were scored as per their abilities. The inclusion of Rakaibe was an error.
18. Under re-examination, he stated that the inclusion of Rakaibe instead of Rantsane was an error.
The 1st Respondent’s Submissions
First Witness: Dr. Bedshani Moses Mceleli
19. The witness testified under oath that the 1st Respondent employed him as Joe Gqabi District Director. Document “R19” was the memo for the approval of the selection panel members. Document “R12” was the appointment of the panel members by the Head of Department on 15 September 2023. He was the direct supervisor of all the managers at the district level, and he was the member of the interview panel.
20. The Applicant should have performed exceptionally well if the interview questions were below the standard. The questions were drafted from the advertisement. He denied the allegation to say he promised the Applicant the position. He encouraged everyone from the district office to apply for the position.
21. Under cross-examination by the Applicant, he stated that the acting period was six (6) months, but the Applicant acted for more than two (2) years. He was generally satisfied with the Applicant work performance while acting. To act in the position, or to encourage her to act, does not create any expectation. He maintained that he encouraged everybody to apply for the advertised position. The panel members were appointed by the Head of Department. He stated that the composition of the panel members should balance in terms of gender, and race.
22. He stated that the composition of the panel was balanced in terms of both gender. The female member who was appointed did not attend the interview. He regard himself as an expert in curriculum because he had PhD in curriculum. Dr. B Peyana was also an expert in curriculum. The interview panel used oral questions, and scored the candidates. The oral questions were assessing the candidates’ competency. The 2nd Respondent possessed a Master’s Degree, and the Applicant had more experience, and exposure to the position. The improvement of results at the district was a collective effort, not that of an individual. The Applicant scored 59% after the interviews.
Survey of Arguments
Applicant
23. The Applicant representative stated that the composition of the interview panel raised suspicion. The interview panel had no person with extensive experience in curriculum. The 1st Respondent recruitment, and selection policy was clear about the balancing of the interview panel. There was no raw score without variety of assessment. The scoring was not the only tool to assess the candidates. The Applicant was competent, and she acted in the position for more than two (2) years. The scoring of candidates was subjective.
24. The 2nd Respondent witness did not assist the proceedings about the issues in dispute. The Applicant was not given a fair chance when this position was filled. The selection process was not fair to her in order to show her competency. It was not fair to conclude that the Applicant was not a suitable candidate for the position. The Applicant sought the whole selection processes to be re-done.
1st Respondent
25. The 1st Respondent representative stated that the interview by its nature was subjective. The interview panel was properly constituted. There was a curriculum expert on the panel member by the name of Dr. Peyana. It was not a must to use other assessment tools except scoring. All the candidates were subjected to the same process.
2nd Respondent
26. The 2nd Respondent representative stated that the Applicant failed to provide the proceedings with sufficient evidence of an unfair labour practice. The mere dissatisfaction does not constitute unfairness. The Applicant scored 59%, and she was not the best suitable candidate to be promoted. The selection processes was fair, and all the candidates were treated fairly. The 2nd Respondent did not misrepresent herself during the interview.
Analysis of evidence and arguments
Introduction
What is the true dispute in this matter?
27. It is the Applicant version that she was asked about her age during the interview, and when she was not promoted, she felt that her age disadvantaged her. It is further the Applicant version that the interview was discriminatory, and the panel members overlooked her. In SAPS v Nkambule and others (P 103/10) (2013) ZALCPE 11 (LC) (handed down on 21 May 2013) it was held that it is the prerogative of the employee who has been overlooked for promotion to choose between referring an unfair labour practice related to promotion or a discrimination dispute. Even though the Applicant testified that she was discriminated during the selection process, she chose to lodge an unfair labour practice dispute. In this matter, the primary dispute is an unfair labour practice relating to promotion, not a discrimination dispute. I will be exceeding my powers if I entertain the discrimination dispute.
28. Section 186(2)(a) of the Labour Relations Act, 66 of 1995, as amended (“the Act”), states that an unfair labour practice is any unfair act or omission that arises between an employer and an employee involving-
• unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to benefits to an employee.
29. The dispute before me relates to an alleged unfair conduct by the 1st Respondent relating to promotion. In a case of promotion, the onus is on the Applicant to prove that she was a suitable, and better candidate for the position in question. In short, the Applicant has to demonstrate that the failure to promote her, was unfair. On the other hand, the 1st Respondent, is in the same token, obliged to defend challenges on the substantive, and procedural fairness, if it wishes to avoid a negative outcome.
30. The 2nd Respondent was joined as a party to the proceedings. Promotion is an area of managerial prerogative unless the Applicant can prove bad faith or improper motives were present which were neither alleged nor proved by the Applicant. The Applicant further did not dispute the suitability of the 2nd Respondent in this position, except to say the 2nd Respondent was part of her team when she was acting. It is not the commissioner’s function, or responsibility to choose the best candidate for promotion for the 1st Respondent, but simply to ensure that in selecting candidates for promotion, the 1st Respondent does not act unfairly. All that the 1st Respondent was required to do in these proceedings was to show that it had a rational basis for its decision.
31. It is clear from the testimony of the Applicant that her complaint is four-fold. Firstly, she takes issue with her being acting in the same position, but she was not promoted. Secondly, she indicated that she was a suitable candidate for the position. Thirdly, she takes issue with the composition of the interviews panel, and fourthly, she takes issue with the 1st Respondent using only scoring as the assessment tool. It is therefore important to analyse these issues separately.
Whether the 1st Respondent created an expectation?
32. It is the Applicant version that she acted in the position for more than two (2) years, and she was suitable to be promoted. She had experience, skills, qualifications, and exposure for the said position. In Eskom Holdings Ltd v Solidarity obo Govender and others (JR 265/20) (2023) ZALCJHB 302 (handed down on 2 November 2023), the question of whether an employer is legally obliged to appoint an employee merely because the employee has been acting in that position, does not create a legitimate expectation of permanent appointment to that position. Recruitment, and appointments are the exclusive preserves of the employer.
33. In this matter, the 1st Respondent had the discretion to advertise the post if it wished to do so, and in the circumstances the 1st Respondent was obliged to do so. No employee had the authority to override the provisions of the binding prescripts which requires the 1st Respondent to advertise the post, and to follow a competitive interview process. I, therefore, conclude that the 1st Respondent did not create any legitimate expectation to the Applicant when she was not promoted to the said position.
Whether the Applicant was a suitable candidate?
34. It is the Applicant’s version that she was a suitable candidate for the said position because of her experience as the principal. She had curriculum knowledge, and she was responsible for early childhood development. She stated that the shortlisted deputy chief education specialists were not qualified to be promoted. There is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. If the employee was not denied the opportunity of competing for a post, then the only justification for scrutinizing the selection process was to determine whether the appointment was arbitrary or motivated by an acceptable reason.
35. In this matter, the Applicant was given an opportunity to compete for a post, and she was ranked number 4 after the interview. The Applicant’s unfairness case has a significant difficulty from the outset in trying to convince me that indeed the 1st Respondent overlooked her when the position was filled. The Applicant had not laid any evidentiary basis during the proceedings to prove that she was overlooked. I have also considered the Applicant’s evidence during the arbitration proceedings so as to establish whether there was any undue interference, or influence by the 1st Respondent during the interview process. I could not find any undue interference, or influence by the 1st Respondent during the interview process.
Composition of the interviews panel
36. It is the Applicant’s version that the interview panel was not properly composed. There was no line function manager, and there was no curriculum expert in the panel. She further stated that she was not satisfied with the district directors being on the interview panel. It was incumbent on the Applicant to alert the interview panel members about any reservations she had on its composition, but she failed to do so. It is clear that the Applicant became aggrieved about the composition of the panel when she was not the successful candidate.
37. In National Commissioner of the SAPS v SSSBC and others (2005) 26 ILJ 903 (LC) the Court held that the complainant must prove that there is a causal connection between the unfairness complained of, and the prejudice suffered. The crux of the matter is that the Applicant has failed to substantiate her claims of how the composition of the interview panel prejudiced her.
Assessment of candidates
38. It is the Applicant’s version that she was not satisfied with the formulation of the interview questions. The interview panel used the scoring as the only assessment tool. The 1st Respondent recruitment and selection policy states that the department may implement work related assessments and/or legally compliant competency instruments where applicable. It is mandatory for candidates interviewed at MMS, and SMS levels to undergo a competency assessment.
39. It is worth noting that all the shortlisted candidates including the Applicant were subjected to one assessment tool of scoring. No evidence was led during the proceedings, how the Applicant was prejudiced by this assessment. Mistakes in the process of evaluation do not constitutes unfairness justifying an interference with the decision to appoint. Each shortlisted candidates during the interviews were scored differently by the interview panel. The Applicant, and 2nd Respondent obtained 59% and 83,3% respectively after the interview.
40. It is not enough to merely show that there is a breach of protocol, or procedures in the recruitment process. It is also necessary for an Applicant to show that the breach of the procedure had unfairly prejudiced her. The Applicant has failed to substantiate her claims that the panel scoring was not objective, and how this scoring prejudiced her.
Conclusion
41. The crux of the matter is that the Applicant has failed to substantiate her claims that she was subjected to unfair conduct by the 1st Respondent. In the circumstances, the Applicant has failed to prove that the 1st Respondent has committed an unfair labour practice in relation to the promotion against her.
Award
42. The Applicant, Ms. Nomawethu Gretta Ketsekile, has failed to prove that the 1st Respondent has committed an unfair labour practice in terms of Section 186(2)(a) of the Act, in relation to promotion against her.
43. The application is dismissed.
Signature:
Commissioner: Khuduga Tlale
Sector: Education