In the matter between: –

Mr R.M. MATHEBULA APPLICANT
and
DEPARTMENT OF EDUCATION- MPUMALANGA RESPONDENT
Mr. B. Nkosi SECOND RESPONDENDT

ARBITRATOR: Piet Shai
HEARD: 29 June 2021

CLOSING ARGUMENTS: 05 July 2021
DATE OF AWARD: 19 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 matter was heard on the 29th June 2021, at the Department of Education, Mpumalanga, Nelspruit. Both parties were present. Mr AK Khoza, of AK Khoza Attorneys, Hazyview, represented the employee, whereas the employer was represented by Mr Lucky Khoza, and Mr Nicholas Nkosi represented the 2nd respondent, Mr Bongani Malaza. The proceedings were digitally recorded. At the end of the proceedings, parties agreed to file the closing arguments on or before the 5th July 2021 and they have since filed the same and they were taken into consideration in arriving at conclusions herein.
ISSUE TO BE DECIDED
2. Whether the 1st Respondent, the department of education – Mpumalanga committed unfair labour practice against the Applicant Mr R.M. Mathebula. In the event I find that to be the case, I will determine an appropriate relief for him.
BACKGROUND TO THE ISSUE
3. The 1st Respondent employed the Applicant as a teacher. The 1st Respondent advertised post REF 62032-7177, HOD, intermediate and senior phase, English, Social Science Grade 4-7, for which the applicant duly applied. The 2nd Respondent was appointed to the post. The Applicant was not shortlisted and hence not appointed to the post. The Applicant alleges that his non- short listing and non-appointment amounts to unfair labour practice as he was qualified for the appointment.
SURVEY OF EVIDENCE FOR THE APPLICANT:
MR ROBERT MLUMGISI MATHEBULA TESTIFIED ON HIS BEHALF UNDER OATH AS FOLLOWS:
4. He is a fifty seven (57) year old level 1 teacher attached to Prince Nkosi Primary School. During 2015 he applied for a post at Sibuyile Primary School, a Head of Department position. He was not shortlisted and no reasons were given to him. On his Application he attached all his qualifications. The following were attached:
• Matric Certificate
• SACE Certificate
• Primary Teachers Diploma
• Results for his Specialization
• Advanced Certificate in Education
• Bachelor of education in Education Management, Law and Policy
• Specialization Honors Degree in Education
• Merit Certificate in raising R 800.00 for Sanitary
• Merit Certificate for service in school governing body
• Attendance Certificate in revised national curriculum statement
• Attendance certificate at a visual Disability workshop
• Testimonial for being a teacher in the Department of Education 16th July 2001 graduating in a Supervisory teacher in 10 April 2002
• Merit Certificate for outstanding Performance at Mount Sinai (AFM)
• Attendance Certificate at a Teacher union Collaboration workshop
• Training Certificate on Teacher Development workshop: development on curriculum Assessment policy statement
• Merit award on outreach and projects (Library project)
• A letter from the doctor certifying that he lives with Albinism
• Curriculum vitae
Based on the above he is of the opinion that he should have been short-listed. According to him, he is more qualified than the 2nd Respondent that is so because he has managerial skills, he supervised educators and has a testimonial to that effect. Further that, he is a chairperson of church council, and was a chairperson of ANC branch of Kamosogwaba.
5. The requirements of the position were as follows:
• Two (2) years’ service
• Specialization in English and social sciences
6. His highest qualification is Honors degree in education. According to him, he has twenty three (23) years of service. However, when he was shown that the 2nd Respondent has twenty three (23) years’ service in contract to his 14 years according to schedule, he admitted the 2nd Respondent was superior to him. He further admitted that he and the 2nd Respondent have RQV 14 according to the schedule at page 16 of the bundle. He however said he was at RQV 15. He further admitted that both of them met the requirements.
7. He explained that he was appointed a teacher at adult education, although he is not sure if it was at level 1. He further regards his position at his church as a leadership position.
SURVEY OF EVIDENCE FOR THE 1ST and 2nd RESPONDENTS
MR FANIE PHIRI TESTIFIED UNDER OATH AS FOLLOWS
8. He is an educator attached to Sibuyile Primary School. On the day of the shortlisting he was a scribe and his signature that is attached to the minutes at page 21 of the bundle. What is contained therein are what happened in the meeting. He can’t however recall if issues relating to the women or disability where discussed but if they were he would have recorded them. He does not know the Applicant, Mr Mathebula
MR JOEL HELAM MAHINDI TESTIFIED UNDER OATH AS FOLLOWS:
9. He is employed by the 1st Respondent as a Principal of Sibuile Primary School since 2015. He participated in the shortlisting as a resource person, his duty being to guide the panel including providing resources. The chairperson of the panel was one Mr Mkhatshwa who has now passed on.
10. The shortlisted candidates appear at page 22 of the bundle. They are:
 Nkosi JN (15) male
 Nkosi BN (14) male
 Godi AB (12) male
 Tlou PM (12) male
 Masilela LH (12) female

11. The criteria used during short listing where:
 Specialization
 Qualification
 Experience
 Extra curriculum activities
 Leadership and management
 Core curriculum activities
12. The panel was looking for someone who could head the department of English and Science. The points were allocated as follows:
 Major in specialization subjects at the college was given two (2) points
 RGV 13- given one (1) point
 RGV 14 – given two (2) points
 RG 15 – given three (3) points
 RG 16 – given four (4) points
Experience rated as follows:
 3-5 years given one (1) point
 5-10 years given two (2) points
 10 and above years given three (3) points
In allocating the scores, the panel relied on official schedule issued by the department of education for this purpose.
Extra curriculum awards rated as follows:
 Certificate of participation in extra curriculum activities granted one (1) point
 Certificate of best performance granted two (2) points
 No certificate granted zero (0) point.
Core- curriculum activities
Best performance in core- curriculum:
 None – zero (0) point
 1 – one (1) point
 More than one (1) – two (2) points
Leadership and managerial activities as follows:
 Leadership outside school – one (1) point
 Leadership in the school – one (1) point
 Two (2) or more- two (2) points
13. Applying the above criteria, the applicant and the 2nd respondent fared as follows:
Specialization
The 2nd Respondent was given four (4) whereas the Applicant was allocated two (2). That is so because the 2nd Respondent did specialization at both college and university (at university he did advanced certificate in English, whereas the Applicant did specialization only at the college level.
Qualifications / RGV
Both candidates have RGV 14 and were given two (2) points each.
Experience
The 2nd Respondent has twenty three (23) years of service and was given three points. On the other hand the Applicant did not indicate as it appears in the schedule but was given three (3) points using the curriculum vitae

Extra-curriculum Awards
The 2nd Respondent had two (2) awards and was given two (2) points, whereas the Applicant had one (1) and was given one (1) point therefore.
Core- curriculum activities
The 2nd Respondent was awarded a certificate for producing the best learner with 70% in 2010 grade 6 mathematics examinations, a best educator in social sciences (2015). Best educator in English (2015), best educator in mathematics (2015). For his efforts he was allocated two (2) points, whereas the Applicant had none and was not allocated any point therefore.
Leadership/management
The 2nd Respondent was awarded the best coach by SAFA and was given one (1) point. The Applicant on the other hand was given a certificate for outreach and projects (2014) and was also given one (1) point therefore. The panel further needed someone who was the best performer in management awarded by the district or school and both had none and received nil.
14. The total score was as follows:
 2nd respondent had fourteen (14) points
 The applicant had nine (9) points
There were however, those who were below the 2nd respondent but above the Applicant as listed in paragraph 15. This is the reason why he was not shortlisted.
15. The schedule received from the circuit office does not indicate that any of the candidates had a disability, as such no criteria in relation thereto was developed. If there was such indication they would have looked at it. He is however, not sure that the Applicant had disclosed that he lives with albinism.
16. The shortlisting was done on the 19th February 2018. Page 103 bundle A shows that the Applicant declared his disability on the 15th November 2018, which is after shortlisting.
17. Even if the Applicant were given extra point for RQV15, he would still have performed lower than the ones who were shortlisted.
UNDER CROSS EXAMINATION HE TESTIFIED AS FOLLOWS:
18. The doctor’s letter that certifies that he lives with albinism is dated the 17th October 2017, which is before the shortlisting.
19. Disability criterion as contained on page 13 of the bundle was not considered as it did not appear on the schedule. They were not alerted thereto on the date of the shortlisting.
20. The doctor’s letter at page 88 of the bundle is not a declaration. The declaration must be on a form as contained at page 103 of the bundle. He does not know how is processed but when they did selection they relied on the information from the department.
21. The Applicant did not disclose his disability at page 95, which is on application form but did so on the current application form.
22. From what he knows is that people with disability are given are added advantage.
23. It is not possible to declare the Applicant a person living with disability if he himself does not do so.
ANALYSIS OF EVIDENCE AND ARGUMENTS
24. The Applicant referred an Unfair Labour Practice matter to the ELRC, hence bears the onus to prove that the 1st Respondent in not selecting him for shortlisting and in the end not appointing him amounted to unfair labour practice.
25. With regard to the test in promotion disputes, Grogan John, Work Place Law, Eleventh Edition, Juta, Grahamstown, 2014, at page 82 says the following, “In short, it is generally held that, to succeed in an unfair labour practice claim relating to promotion, the employer must have shown to have exercised its discretion capriciously, for unsubstantiated reasons, or that the decision was taken on a wrong principle or in a biased manner. However, the Labour Courts has warned the commissioners that they should not regard themselves as reviewing courts. The main consideration remains whether the employer acted fairly or otherwise”.
26. The Applicant testified that he was a better candidate than the 2nd Respondent and by implication, all those that the 2nd respondent surpassed. That is so by virtue of qualifications and experience.
27. The Applicant further led evidence that as a person living with albinism, this aspect was not taken into account. He regarded this also amounting to unfair labour practice.
28. The 1st Respondent led evidence to show that the panel used a schedule provided by the department itself and the curriculum vitae which contained the details of the candidates. Further that the 1st Respondent showed that the panel had developed a set of criteria in terms of which the candidates were measured or tested. These criteria included the following:
Specialization, qualifications, experience, extra curriculum activities, core curriculum activities and leadership/ management. The 2nd Respondent scored fourteen (14) points whereas the Applicant scored nine (9) points. This meant that the Applicant couldn’t claim to be a better candidate to the 2nd respondent.
29. The Applicant further alleged unfair labour practice on the basis that the panel failed to take into account the fact that he lives with albinism. The Applicant testified to the doctor’s letter, which certified that he lives with albinism.
30. Page 13 of the bundle of documents contains a policy provision of the report which reads as follows:
“6.6.3. The department should furthermore adhere to the national target that 2% of all staff should consist of people with disabilities in this regard all offices and levels are not even close to compliance with said national target and every opportunity, to employ or promote a person with disability, should be utilized to ensure that people who were discriminated against in the workplace in terms of disability, are empowered to enable them to gain access to and compete for posts including those at the highest level.”
31. The witness for the 1st and 2nd Respondents testified that the panel was not alerted to the fact that the Applicant lived with albinism. The witness further testified that the doctor’s letter did not amount to declaration. The Applicant’s declaration was received by the 1st Respondent on the 5th November 2018, which date was after the shortlisting was done. He further testified that had they been alerted thereto would have developed a criterion therefore and considered his situation.
32. I accept the witness’s evidence that they relied on the information contained in the schedule as provided by the 1st Respondent. I am on the view that had the Applicant declared all along, the schedule would contain such information and, same would have been considered like all other information taken into account. Further that, it is not clear for what purpose the doctor’s letter related to, nor there is evidence that such was received by the 1st Respondent and when. I therefore do not regard it as a declaration of disability.
AWARD
33. I find that the 1st Respondent, Department of Education, Mpumalanga did not committed Unfair Labour Practice relating to promotion when they did not shortlist the applicant, Mr R.M. Mathebula.
34. The Applicant’s referral stands to be dismissed.

M.P. Shai
Arbitrator