21 July 2021 – ELRC 747-19/20 GP

In the matter between: –
TSHEPO OSCAR KHABELE APPLICANT

and

DEPARTMENT OF EDUCATION- GAUTENG RESPONDENT

ARBITRATOR: MMAMAHLOLA GLORIA RABYANYANA
HEARD: 04 and 22 June 2021

CLOSING ARGUMENTS: 07 July 2021
DATE OF AWARD: 21 July 2021

SUMMARY: Labour Relations Act 66 of 1995 –Section 186(2)(b) – Unfair Labour Practice by employer relating to promotion.

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

1. The arbitration was held on 04 and 22 June 2021, at the Department of Education Head offices in Johannesburg. The applicant, Tshepo Oscar Khabele was represented by Advocate W. Van der Heever briefed by Du Bruyne Attorneys. The respondent, Department of Education: Gauteng were represented by Mr. A. Chabalala from the department. The proceedings were recorded digitally. The parties were given until 29 June 2021 to submit their closing arguments. The applicant requested an extension till 06th July due to Covid related challenges.
BACKGROUND TO THE ISSUE
2. The Applicant had referred the dispute of unfair labour practice relating to promotion to the Council for Conciliation. The dispute could not be resolved and a certificate of outcome of conciliation to that effect was issued. The applicant then requested that the dispute be arbitrated.
ISSUE TO BE DECIDED
3. I am required to decide whether the respondent’s failure to appoint the applicant to the position of Head of Department – Managerial Tasks, amounts to an unfair labour practice. I must also determine the appropriate relief, should I find in favour of the applicant. The Applicant seeks protective promotion from the 10th of October 2018.
AGREED FACTORS
4. The parties agreed to the following factors as being common course: –
4.1 The applicant started working for the respondent as an educator on 01 February 2015. At the time of the alleged unfair labour practice, he was working at Phahamang Primary School.
4.2 He met the minimum requirements for the advertised position. He was shortlisted and interviewed for the position.

SURVEY OF ARGUMENTS AND EVIDENCE
5. Tshepo Oscar Khabele testified that there was SADTU strike during 2016 at their school. The applicant was not a member of SADTU. He did not take part in the strike. The Applicant was denied access to the school resulting in him and secretary of SADTU having a verbal altercation.
6. During April 2018, the applicant and his colleagues, were dissatisfied with the conduct of a clerk of the school and they raised a grievance to the Respondent. The Respondent sent union officials from SADTU to the school, to resolve the issue. The Applicant dismissed the relevance of the SADTU officials to the dispute, as it was an internal matter.
7. The applicant was not shortlisted when he applied for the position in dispute during July 2018.This was despite him meeting the minimum requirements. He lodged a grievance. His grievance was upheld on 04 of September 2018 and he was shortlisted. He was invited for the interview scheduled for 10 October 2018.
8. Thereafter, he was invited for a second interview scheduled for 6 November 2018. During November 2018, the Applicant was informed that he was unsuccessful. Mr. Khaha was appointed to the position.
9. During a year function of the school on 14 December 2018, Mr. Tshepo Mbele, a union official from SADTU confronted the applicant. He told the applicant that he was disrespectful and that he will not get anything in the area. The Applicant was convinced from the conversation with the Mr. Mbele, that SADTU or Mbele, interfered with his application for the position and influenced the Respondent not to appoint him.
10. In the first interview he was recommended for the position by the interview panel and he had the best scores. Mr. Khaha had scored second best in the first interview. This was despite Khaha having answers to the questionnaire.

11. According to the minutes of the interview process, SADTU observer was made
aware of the incident relating to the questionnaire of Mr. Khaha. The observer phoned the union representative and reported the matter to SADTU, after the interview of Mr. Khaha. The interviews continued despite SADTU being made aware of the incident of the questionnaire incident.

12. R 44 is a grievance lodged by SADTU on 16 October 2018, about the interview
process. R 45 is the respondent’s response issued to the School on 18 October 2018.The response, was issued only two days after the grievance was lodged. R 46 is the response directed to SADTU dated 19 October 2018.The response came only three days after the grievance was lodged.
14. The response referred to the Collective Agreement number 2 of 2005,the grievance procedure. He was not aware that a District Grievance Committee “the DGM” was established in terms of the grievance lodged by SADTU. He was not aware that all steps were followed in compliance with this grievance procedure. He was not aware that a discussion took place to reach consensus about the upholding or not of the grievance. He was never furnished with a copy of the record of the grievance process.
15. During cross examination he conceded that in terms of clause 1.8 of ELRC Collective Agreement no 2 of 2005 on bundle R66, it was not compulsory for the establishment of the District Grievance Committee “DGC” to resolve SADTU grievance. He did not site authority that he was entitled to have been provided with the grievance documents lodged by SADTU. He conceded that it was his opinion. Yet he conceded that he was not a participant in that grievance.
16. He said he did not know how the DGC is formed, how its chairperson is elected and how discussions to resolve a grievance are taken. He was not a party to the decision of his grievance when he was added candidate no 6. He conceded that SADTU was not aware prior to the interview that he had been added to the list of the candidates. If SADTU was not satisfied with his addition to the list, they should have objected but failed to do. It was wrong to object after the interview.
17. He conceded that in terms of R46, complaint about a candidate given notes in the interview, someone had investigated the grievance and established the irregularity. The re-interview is justified only if the candidate having notes was the one scoring the highest. Yet he conceded that that it was fair to re-convene the interview.

19. He conceded that R63 clause 3.10 does not indicate that scoring no 1 amount to automatic appointment and that final decision is taken by the District manager. He did not have a problem in being rated number 2 in the second interview. He said that he was not claiming that he was the best candidate amongst all candidates. He was not the best.
20. He conceded that none of the SADTU members, he allegedly had altercation with were observers in both interview processes. However, it is his opinion that they might have discussed this amongst themselves in the SADTU branch. He conceded that it was not a valid reason to have excluded SADTU in the interviews because he had altercation with its other officials. He conceded that in the interviews he was ranked number 1and 2 respectively despite SADTU observers being present. SADTU influenced the decision because they were stake holders and were the only observers. Respondent’s officials were not involved in his altercation with SADTU.
21. He said Mr Mbele told him that he will not get anything and that he did not have evidence to prove that Mbele uttered those words as he was not calling him to testify. In the interviews, the observers did not take part in asking him questions. Khaha was not the first person to be interviewed. He was given blank page to take notes during the interview.
22. M.B. Mutle, testified for the respondent that he is the Principal of the Phahamang Primary School. He was the chairperson of the interview committee for both interviews. The second interview was on 10 October 2018. The second interview was due to a grievance lodged by the Applicant and directive given by the District Manager, as a result of the grievance. R40 is the minutes of the second interview. For the purposes of this proceedings, 10 October 2018 interview will be referred to as first interview because is the first interview that the applicant attended.
22. The applicant was an additional candidate, who was added to be number 6 (six) on the candidate list. They deliberated on what was planned in terms of the process. All members of the panel were present and there was only one observer, Mr. Sehume from the labour movement, SADTU. The other observers were invited but did not show up. The Applicant was recommended as the first preference at the end of the interview process.
23. He is aware of three incidents which occurred between the Applicant and SADTU. The first incident was during an organized strike by SADTU. SADTU secretary phoned him that they were at the gate of the school to check who came to work or not. She told him that Khabele had insulted her, using vulgar language. SADTU Everton branch did not influence him in order not to appoint the Applicant. The observer in the interview process was not the SADTU secretary regarding the incident.
24. After the interview, they held a ratification meeting with the SGB and recommended the applicant. They submitted their file with top 3 candidates to the District Office for appointment. It was the District manager’s prerogative to appoint the applicant.
25. On the 6th day after the interviews, they were visited by the District Officials and they were informed that a grievance was lodged, and they will have to redo the interview process. He did not receive any documents regarding the grievance of SADTU. The interview was on the 6 November 2021, and he was the chairperson of the interview committee. There was a SADTU observer present in that process who was not the same person as the secretary regarding the altercation.
26. Mr. Khaha was recommended as the preferred and best candidate for the position and he scored highest. The SADTU observer played no role in the recommendation of the preferred candidate. Their status is just to observe, and they do not decide on candidates.
27. During cross examination he testified that he heard about the incident of the year end function, and that a discussion between the Applicant and the SADTU official took place. He was informed by the applicant and Ms Msibi. Their version was similar. They told him that the incident took place at a Tavern in Vanderbijl Park. He was not there when the incident occurred. He was informed that Applicant and the SADTU official nearly fought with each other and there death threats. Both of them never mentioned to him that Mbele told the applicant that he would not get anything in the area unless he behaved.
28. The incident occurred long after the interview processes. The applicant and Mr Mbele were friends and had a good relationship prior to the tavern incident. They attended the same university and Mbele would come to their school to meet the applicant. The third incident was when the applicant and his colleague, Telane insulted SADTU on face book.
29. He read the interview minutes of the first interview to the record. During the interview, Mr. Khaha ‘s eyes were glued to the candidates’ table. The secretary through eye contact communicated with him(witness) in this regard. They proceeded as if nothing had happened and after Mr. Khaha left the interview room, the secretary raised the issue. They suspected that there were answers on the table and they discussed that this was the reason why Mr. Khaha’s eye contact was bad.
30. They instructed the secretary check on the table and they found handwritten notes with some questions and possible answers. The observer was made aware of this. The observer was allowed to make a call. They decided and agreed to proceed with their process and note the incident in their minutes.
31. When the candidates came in, they gave them instructions to follow. The candidates were told not to write anything on the questionnaire sheet as they were provided with a blank sheet to make their own notes on. They were told that when they leave the interview room, they must take their notes with and not the questionnaire sheet. The candidate who came before Mr. Khaha left his notes on the table.
32. He anticipated that the issue of irregularity would be raised. He did not expect it to come from SADTU though. He wanted the respondent to rule over it, hence he did not hide in the minutes. He does not believe that SADTU raised the grievance because the applicant was recommended. It was because the process was flawed.
33. Ms. M. Mahlaba testified that she was the of secretary and transcriber in the interviews. During the interview when Khaha answered questions, he looked at those papers. She made the panel aware of that as she thought there were answers on the sheet. They looked at the notes and it seemed to be answers left by the previous candidate. The observer went out to notify SADTU members. When he returned, they continued with the process. He did not object.
34. During cross examination she said the meeting after the interview adjourned at 18:30 because they were waiting for food delivery. There was delay from the service provider for the delivery of food.
CLOSING ARGUMENTS
35. The applicant’s representative argued that in City of Cape Town v SA Municipal Workers Union on behalf of Sylvester and others (2013) 34 ILJ 1156 (LC), it was held that in deciding whether or not the employer had acted unfairly in failing or refusing to promote the employee, relevant factors to consider include whether the failure or refusal to promote was motivated by unacceptable, irrelevant or invidious considerations on the part of the employer; or whether the employer’s decision was motivated by bad faith, was arbitrary, capricious, unfair or discriminatory; whether there were insubstantial reasons for the employer’s decision not to promote; whether the employer’s decision not to promote was based upon a wrong principle or was taken in a biased manner; whether the employer failed to apply its mind to the promotion of the employee; or whether the employer failed to comply with applicable procedural requirements related to promotions. The list is not exhaustive.
36. It is common cause that the Applicant had a bad relationship with SADTU and several of their officials. The Applicant’s initial application was ignored and had to lodge a grievance. Only as a result of the grievance was the Applicant short listed and invited for an interview.
37. The interview committee elected to proceed with the interview process despite the irregularity. SADTU observer did not object to the decision to proceed with the interview process. It was only after the Applicant was nominated as the preferred candidate, that SADTU lodged a grievance.
38. Mr. Mbele informed the applicant at the yearend function of the school that he will not get anything (better positions) in the area until he changes his attitude. This is evident that Mr. Mbele and SADTU, had influence on decisions to the appointment and promotions of positions within the area. SADTU interfered with the decision of the Respondent to promote the Applicant to the position. The respondent’s decision not to promote the Applicant was made in bad faith.
39. SADTU lodged a grievance on the 16 October 2018. On the 18 October 2018 a decision was made to uphold the grievance of SADTU. The Respondent produced no evidence in terms of their compliance with Annexure B of Collective Agreement number 2 of 2005.
40. SADTU’s grievance was based on the selection and appointment processes based on PAM and relevant policies, more specifically Annexure A of Collective Agreement number 2 of 2005. Therefore, Annexure B of Collective Agreement number 2 of 2005 was applicable in terms of SADTU’s grievance lodged.
41. Failure to promote the Applicant was substantially unfair based on the fact that he was the best candidate in the first interview process. It is highly unfair that Mr. Khaha benefited from his dishonest conduct, when he was clearly not the best candidate for the position. This specifically considering the fact that he could not score better than the Applicant, even when he had the answers available to him.
42. Failure to promote the Applicant was procedurally unfair because interview committee was aware of the irregularity in relation to Mr. Khaha but elected to proceed with the interview process notwithstanding the irregularity.
43. The Applicant prays for an order declaring that: The Respondent’s failure to appoint the Applicant in the position of Head of Department – Managerial Tasks, was an unfair labour practice. The Applicant prays that he be awarded protective promotion from the 10th of October 2018.
44. The respondent ‘s representative argued that the Court in NATIONAL COMMISSION OF THE SA POLICE SERVICE V SAFERY AND SECURITY SECTORAL BARGAINING AND OTHERS (2005) 26 ILJ 903 (LC) held that in short, the employee who raises an unfair labour practice dispute relating to promotion, in order to be successful, must show that he or she met the inherent requirement of the post in question and that he or she was the best candidate for the post, as well as that the decision to appoint another individual in preference over the said employee was unfair.
45. The applicant during cross examination conceded that he is not claiming that he is the best candidate of all the candidate who applied for the post. including as compared to Mr Khaha. He did not raise any procedural and substantive fairness over the second process of interview which was held on 6 November 2018.
46. The second interview is the one that informed the employer’s decision to appoint Mr Khaha. If the applicant is not challenging this interview process, his case lacks merits and must be dismissed.
47. The applicant‘s alleged altercation with two SADTU officials on two separate occasions while he was at work has nothing to do with the Department. He admitted that the officials were not representing the respondent. There is no evidence that altercations took place. Mr Mutle was told about these incidents.
48. The observers of both processes of interviews were not the same officials alleged to have had altercations with the applicant They could not have influenced his potential appointment for the post when they were not part of the process.
49. It is his opinion that since they belong to the same SADTU branch, they may have spoken about it. He failed to make a causal connection between the alleged altercations and the influence on the process of interviews. The applicant was ranked as number 1 candidate in the first process of interviews, when SADTU observer was present. This shows that the panel was not influenced at all by the observer.
50. Since the applicant was not the one who lodged the grievance but SADTU, he was not a participant in the grievance procedure, therefore the department did not owe him any explanation. He was not aware that he was ranked number 1 at the time of the grievance. Ranking number one does not amount to automatic appointment. The SGB recommend three candidates in order of preference, while the Senior Manager has a final decision.
51. The grievance he lodged, when he was not shortlisted for the post, the department investigated and provided him in writing its findings and recommendation. He was added to the list of shortlisted candidates. He also accepted that it is not a valid reason that to exclude SADTU in the processes of appointment because he had alleged altercations with some of its officials.
52. The respondent after investigating the SADTU grievance found valid reasons to recommend for the process of interviews to be redone. The reasons were that it was confirmed that the panel and/or the department did not communicate its decision to add Mr Khabele to the list of shortlisted candidates to the observers in advance.
53. It was also about the irregularity that occurred during the interviews when one of the candidates left his or her notes on the table and the next candidate Mr Khaha was interviewed. It was not confirmed that the notes contained accurate answers to the questions or not. It was deemed necessary to redo the process of interviews. Mr Mutle testified that he expected the process to be challenged. Mr Khaha did nothing wrong. This was an honest omission by the panel by not noticing that a candidate had left some notes on the table.
54. The altercation happened long after the process of interviews were concluded. Issues that happened in taverns when they were drunk should not be entertained. Mr Khabele did not dispute when he was told by Mr Mutle that he told him that he fought with Mr Mbele in a tavern. They threatened to kill each other. This has no casual connection with the decision taken by the panel on 6 November 2018.
55. The applicant is challenging how the SADTU grievance was resolved by the Department. SADTU did not lodge an appeal on the way their grievance was investigated and resolved. The applicant was not the aggrieved therefore, he cannot appeal the decision that was taken by the respondent. Not all the grievances are resolved through District Grievance Committee.
56. The Senior Manager determine if the case requires DGC. In this case, the grievance was so simple that documents (minutes) confirmed that there was an irregularity. DGC is required if there are conflicting versions from the Panel, observers and the aggrieved. Part 1.8 of the of the Collective agreement no 2 of 2005, indicates that “ where a grievance is clearly procedurally out of line, the Senior Manager will not set up a District Grievance Committee (DGC), and will inform the structure lodging a grievance to this effect. Such a structure will have the right in terms of the grievance procedure to appeal to the Labour Relations Directorate at Hear Office.
57. The applicant failed to prove that he was unfairly treated during the process of interviews. He also failed to prove that he is the best candidate for the post. He did not dispute that Mr Khaha is the best candidate.
ANALYSIS OF EVIDENCE AND ARGUMENT
58. The applicant bears the onus to prove that the respondent committed an act of unfair labour practice when it did not appoint him to the promotional post.
59. In Sun International Management (Pty) Ltd v CCMA and others (JR 939/14) LC ,the court held that in promotion disputes, 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 employee to show that the breach of the procedure had unfairly prejudiced him. This means that the employee must not merely show that he was the suitable candidate for consideration, but that he was the best candidate.
60. The applicant conceded during cross examination that he is not claiming that he is the best candidate of all the candidates who applied for the post including Mr Khaha. He is not challenging the procedural and substantive fairness of the second process of interview, held on 6 November 2018. The decision to appoint the best candidate was informed by this final interview.
61. It is common cause by virtue of the applicant’s concession, that he is not the best candidate for the position. I must accept that indeed he is not the best candidate for position. Therefore, it is not required of me to determine if the applicant is the best candidate for the position. This is corroborated by the fact that correctly so, he did not provide evidence to that effect. Therefore, he had failed the requirement stated in Sun International Management case supra, that he is the best candidate for the situation.
62. I must now determine if the respondent had fairly complied with procedures and protocol in the recruitment process. It is common cause that the applicant scored highest and was recommended for the position in the first interview. It is also common cause that Mr Khaha scored highest in the second interview and the applicant ranked second and the names of the top 3 were sent to the District manager in order of preference.
63. The applicant’s claim that he was entitled to be have been appointed to the position is premised on the altercations he had with SADTU officials, that he scored highest in the first interview and was recommended and that SADTU grievance that resulted in the reconvening of the second interview was not dealt with in compliance with the ELRC Collective Agreement no 2 of 2005.
64. It is common cause that the two SADTU officials that he allegedly had an altercation with were observers during both interviews. It is pure speculation on the part of the applicant that SADTU observers were influenced by the ones he had altercation. He conceded during cross examination that it is not a valid reason to exclude SADTU from interviews because of these alleged altercations.
65. These altercations were not proven. He admitted during cross examination that the officials were not representing the Department. Even if they were proven, I do not find a causal connection between his non appointment, which is decision that was taken by respondent and the altercations.
66. There is no evidence that SADTU or its observers were the decision maker or had an input in the decision to appoint the incumbent. In fact, he conceded that the observers did not take part in asking him question. It is the unchallenged evidence that their status was that of observers. Further that the interview panel’s role was to recommend and a final decision to appoint lies with the District manager.
67. The applicant did not challenge the Mr Mutle when he testified that Ms Msibi and the applicant informed him that the altercation with Mr Mbele took place at a tarvern and that both informants did not mention that Mbele told the applicant that he would not get anything in the area if he did not behave. The tarvern incident is baseless, misdirected and unrelated to the process leading to a decision to appoint the best candidate.
68. I agree with the respondent’s argument that if indeed SADTU had influenced the process, the applicant could not have been ranked as number 1 candidate and recommended in the first process of interviews, in the presence of SADTU observer. He was also ranked number two in the second interview despite the presence of another SADTU observer. The applicant stood a chance of appointment by the District Manager during the second interview because it was his prerogative to select one of the top three.
69. It is common cause that SADTU lodged a grievance against the process of interviews held on 10 October 2018. The applicant’s contention is that it was unfair for the respondent for not communicate with him about the grievance. Further that it did not furnish him with the documentation relating to the resolution of the grievance. It is common cause that the applicant was not appointed to the position by the senior manager but only recommended by SGB. The applicant failed to provide authority that he was entitled to information and details of the grievance as he was not a party to the grievance.
70. He conceded that when he lodged a grievance, when he was not shortlisted for this position. The department investigated and provided him in writing its findings and recommendation. He was added to the list of shortlisted candidates. The applicant did not provide evidence that the other candidates were informed of his grievance and its details. I am of the view that the applicant could only be entitled to the grievance of SADTU if he was already appointed to the position.
71. It is common cause that an irregularity had occurred during the first interview held on 10 October 2018, when one of the candidates left his or her notes on the table and when the next candidate Mr Khaha looked at the notes during the interview. Mr Mutle‘s unchallenged testimony is that this was an irregularity. However, the panel took the decision to continue with the process and noted the irregularity in the minutes. He testified that he expected the process to be challenged because it was flawed. He did expect same coming from SADTU.
72. Gleaning from the interview minutes relating to events that took place during the first interview, the process was flawed and irregular. The recalling of the interview is justified, despite who lodged the grievance. Even if SADTU did not lodge a grievance, the respondent ought to have recalled the interviews for a fair process. It is common cause that the Senior Manager reserves the right to appoint any candidate out of the three recommended. Mr Khaha was recommended the second candidate, as top 3 candidate he also stood a chance for appointment from the flawed process. I am convinced that it was fair and proper to reconvene the interview.
73. Part 1.8 of the of the Collective agreement no 2 of 2005, indicates that “where a grievance is clearly procedurally out of line, the Senior Manager will not be set up a District Grievance Committee (DGC), and will inform the structure lodging a grievance to this effect. Such a structure will have the right in terms of the grievance procedure to appeal to the Labour Relations Directorate at Hear Office. I agree with respondent’s argument that in terms of this clause, not all the grievances are resolved through District Grievance Committee.
74. It is the Senior Manager‘s prerogative to determine if the case requires DGC in cases of procedural defect. In this case the grievance was a clear irregularity. The minutes confirmed that there was an irregularity. The applicant was not a party to such grievance and could not have any input as to what transpired when Khaha was interviewed. I am inclined to find no unfairness on the part of the respondent to recall the interview and how the grievance was handled.
75. The decision was taken by the respondent not to promote the applicant was not based on any of the negative aspects mentioned in Arries case mentioned by the applicant in the closing argument.
76. The applicant failed to prove that he was unfairly treated during the process of interviews. He also failed to prove that he is the best candidate for the position, in fact he submitted that he was not the best candidate. He did not challenge that Mr Khaha is the best candidate. In the premise the applicant failed to prove on the balance of probabilities that the applicant committed an act of unfair labour practice when it did not appoint him to the promotional position in dispute.

AWARD

77. The respondent, Department of Education: Gauteng did not commit an act of unfair labour practice relating to promotion when they did not promote the applicant, Tshepo Oscar Khabele to the position of Head of Department – Managerial Tasks.
78. The applicant is not entitled to any relief.

Signed and dated at Pretoria on this 21 July 2021.

MG Rabyanyana

M.G Rabyanyana
ELRC Panellist