22 August 2022 – ELRC34-22/23LP

IN THE EDUCATION LABOUR RELATIONS COUNCIL ARBITRATION MEETING HELD IN POLOKWANE ON 10 AUGUST 2022

Case Number: ELRC34-22/23LP

In the matter between: –

PSA obo Mabobo G.N Applicant

And

Capricorn TVET College (DHET) Respondent

ARBITRATION AWARD

Nature of the dispute: Section 186(2) of the LRA: unfair labour practice relating to promotion.

DETAILS OF THE HEARING AND REPRESENTATION

1. The hearing was held in Polokwane on the 10 August 2022. The Applicant was represented by Ms. Kate Mamabolo from the Public Servants Association (“PSA”) whereas the respondent was represented by Ms. M.J Makhubela, employed by respondent as the Labour Relations Practitioner
2. Both parties submitted bundles of documents which were admitted as evidence marked as “R1” and “A1” for the Respondent and the Applicant respectively. Bundle “R1” contained some 33 pages, while bundle “A1” contained 43 pages.
3. The proceedings were digitally recorded. At the end of the proceedings, parties requested an indulgence to file written closing arguments on the Wednesday, 17 August 2022. The parties filed written closing arguments, which have been taken into consideration in arriving at the conclusions herein, while the Applicant did not submit same.

THE ISSUE IN DISPUTE

4. The issue to be determined is whether the non-shortlisting of the applicant and subsequent non-appointment to the position of Education Specialist at Capricorn TVET College constituted an unfair labour practice for the purposes of section 186(2)(a) of the LRA. If so, I shall determine the appropriate relief.

BACKGROUND TO THE DISPUTE

5. The Respondent advertised several positions on its website and several newspapers calling for suitably qualified candidates to apply. The Applicant, Mr. Mabobo G.N, responded to the position of Education Specialist (Ref:18/09/2021), which was to be based in Polokwane campus. The Applicant was not shortlisted, and feeling aggrieved, then lodged an internal grievance which was not resolved to his satisfaction, and subsequently referred an unfair labour practice to the Council for conciliation. The dispute remained unresolved at conciliation, and the certificate of non-resolution was issued on the 11 May 2022. The arbitration was then set down for the 10 August 2022 before me.

PRELIMINARY ISSUES

6. At the commencement of the arbitration hearing, it was apparent that the second respondent, Mr. Tambani, the successful candidate and incumbent who was joined in the proceedings was not in attendance. I then enquired from the Respondent about his whereabouts, and he contacted by telephone, and a message was relayed to me to the effect that he was not aware of the proceedings. I then proceeded to do the arbitration minute, and enquired from the Applicant the nature of relief sought, which was protective promotion. I then proceeded with the arbitration in the absence of the second respondent on the basis that the relief sought does not and will not materially affect his interests.

SUMMARY OF EVIDENCE ON BEHALF OF THE APPLICANT

7. Mr. Mabobo G.N. testified under oath, and his evidence can be summarized as briefly as follows. He applied for the advertised position in dispute and was not shortlisted, and that such non-shortlisting constituted unfair labour practice relating to promotion. The Applicant testified that he met the minimum requirements that appeared on the advertisement except the requirement of Computer Literacy, and that he was the senior lecturer teaching English at the College since the year 2009. The Applicant further testified that he was computer literate, and was issued with a desktop for which he uses on a daily basis to execute his duties, and that as recent as last year 2021, he was issued with a laptop for which he uses to execute his duties. The Applicant testified further that, he was not shortlisted on the basis of the not having a computer literacy certificate and/or not attaching same when he applied, whereas the incumbent was shortlisted while he did not meet the minimum requirements in that he did not possess the necessary M+3 years’ degree or diploma with English as a major subject.

SUMMARY OF EVIDENCE ON BEHALF OF THE RESPONDENT

8. The Respondent’s first witness, Ms. Moja J.K, testified under oath, and her evidence can be summarized briefly as follows. She is employed by the Respondent as a Deputy Principal responsible for Corporate Services and her responsibilities includes recruitment of employees. She further testified that the Applicant, Mr. Mabobo G.N was “sifted out” because he did not possess the necessary requirement of computer literacy, and that was the reason for not shortlisting the Applicant. She testified that sifting process entails the screening of applications against the minimum requirements as per the advertisements, and that during that process, any application that does not meet the minimum requirements is disqualified. She further testified that the applications that are sifted out, are subjected to further assessment by social partners inclusive of unions to ensure fairness.
9. The Respondent’s second witness, Mr. Muleya N.T, testified under oath, and his evidence can be summarized briefly as follows. He is employed by the Respondent as the Campus Manager, and chaired the interviews. He was not involved in the shortlisting process itself. Mr. Muleya further testified that the Applicant fell out through a process of sifting, which is a stage before shortlisting because he did not possess the certificate in computer literacy. He further testified that in the TVET sector, in particular at Capricorn College, the qualification of a degree or diploma in English is comparable to that of a degree or diploma in communication, and as a result, the incumbent possessed a qualification in communication, and met the requirements, was shortlisted and appointed.

ANALYSIS OF EVIDENCE AND ARGUMENT

10. It is common cause between the parties that the position in dispute had the following minimum requirements, namely, M+ 3 years’ degree or diploma which includes education as a qualification with english as a major subject, plus three years teaching experience in english, in the TVET sector and computer literacy. Other requirements were a valid drivers’ license, moderator and assessor certificates plus registration with the South African Council of Educators (“SACE”).
11. It is now trite that in unfair labour practice disputes relating to promotion, the onus is on the Applicant to first show that the conduct of the employer that constituted an unfair labour practice, and then proceed to show how such the conduct was unfair.
12. In Ndlovu v Commission for Conciliation, Mediation and Arbitration the court per the pen of Wallis AJ, as he then was, held that:-
“In my view, the questions which the Commissioner asked in the first paragraph of that quotation were wholly justifiable questions in relation to a dispute over a matter of promotion. It can never suffice in relation to any such question for the complainant to say that he or she is qualified by experience, ability and technical qualifications such as university degrees and the like, for the post. That is merely the first hurdle. Obviously a person who is not so qualified cannot complain if they are not appointed.
The next hurdle is of equal if not greater importance. It is to show that the decision to appoint someone else was unfair. That will almost invariably involve comparing the qualities of two candidates. Provided the decision by the employer to appoint one in preference to the other is rational it seems to me that no question of unfairness can arise”.
13. The Applicant’s case is succinctly that he was not shortlisted, and therefore denied promotion on one hand, while on the other hand, the incumbent who did not meet the requirements was appointed.
14. I first deal with what Wallis AJ in Ndlovu supra refers to as a first hurdle, that is, the act and/or omission that the Applicant complains of as conduct constituting an unfair conduct.
15. At the outset, I must mention that the Applicant did not testify to any specific conduct that he complains of, suffice to point out that the incumbent was not comparably qualified and suitable for appointment than he was, in that the incumbent did not possess a qualification with english as a major subject and prior teaching experience in english. This submission by the Applicant, in the main deals with what Wallis AJ supra refers to as the second hurdle, which I will address later in this award.
16. The first hurdle for the Applicant was to show conduct that constituted an unfair conduct, that without which the Applicant would have succeed in his quest for promotion. The Applicant could not identify any conduct. On the contrary, the Respondent’s two witnesses testified that the Applicant was not shortlisted for the sole reason that he did not have the computer literacy certificate, which was one of the minimum requirements required for the position.
17. The Applicant’s conceded to the fact that at the time of applying for the position, he did not affix the computer literacy certificate as he did not possess any, although he would later receive the certificate post the appointment. The Respondent testified that as part of the recruitment process, prior to shortlisting, there is a process called sifting. It is in that process where the Applicant’s curriculum vitae and profile was sifted out as it did not comply with the minimum requirements, hence the justification for not shortlisting him. On page 13 of bundle “R1”, the Respondent attached a sifting standard form, and on the column about computer literacy, the Applicant was marked as a person not having same. The Applicant did not dispute or challenge the process of sifting as a fair process prior to shortlisting, and conceded under cross-examination that candidates not meeting the minimum requirements should not be shortlisted, despite his protestations that the incumbent too, did not meet the minimum requirements as per the advertisement. In my view, the Applicant failed to establish an act and/or omission constituting an unfair conduct by the Respondent.
18. Despite my finding in respect of what the court in Ndlovu termed first hurdle, I now deal with the second hurdle as per the Ndlovu judgment for completeness. In this respect, the Applicant testified that he is more suitably qualified than the successful candidate. The difficulty with this submission, is that the Applicant did not have the incumbent’s curriculum vitae and profile, and gave oral evidence based on the knowledge of the incumbent. The Applicant bitterly complained of the fact that the Applicant did not possess the degree or diploma with english as a major subject and neither had three (3) years prior teaching experience in english.
19. The Respondent, to the contrary, submitted that Mr. Tambani , the incumbent was just as suitably qualified in that he possessed a qualification in communication, and that such a qualification was comparable to qualification in English. I have reservations about this submission from the Respondent, more so in respect of what the court in Letsogo v Department of Economy and Enterprise Development and Others said in a dispute relating to promotion. In Letsogo supra, a candidate who was initially not shortlisted, was later shortlisted by the selection panel after amending the minimum requirements to accommodate her. The candidate who was initially not shortlisted was subsequently appointed to the exclusion of other candidates who were suitably qualified than her. The court then took issue with the fact that in such instances, the amended advertisement should be re-advertised so that other candidates who may have had an interest to apply but put off by the minimum requirements in the advert, may now too apply if they met the amended advertisement. In my view, in this case, the Respondent should have re-advertised the position to make it explicitly clear that other candidates who possessed a qualification in communication may apply for the position of education specialists, as it was the case in the position in dispute.
20. In this respect, the court in Letsogo supra quoted with approval a passage from Kwaduza Municipality v Rajamoney and Others which held that:
“For the requirements of an advertised post to be met therefore, cognisance must be taken of the objective of the policy to ensure that the candidate who best meets the selection criteria is appointed. The short listing of a candidate who least meets the set selection criteria will ordinarily fly on the clear face of the objective of the policy. Such short listing would then be arbitrary as contrary to the selection criteria. The applicant set out requirements to be met for the contested post. The fairness of the selection process lay in the screening of all candidates against the set requirements supra in a similar approach. It has to be borne in mind that there would be people who desired to apply for the contested post but did not submit their applications merely because they did not meet the set requirements. It would also be unfair to set all candidates who met all requirements against any candidates who lack any of the requirements”.
21. When Ndlovu is juxtaposed with Letsogo supra, clear principles emerge. In respect of Ndlovu, in the event that a candidate fails to meet the minimum requirements, such candidate does not qualify and the enquiry ends there, and such candidate should not complain of non-appointment. In Letsogo, a different principle to that enunciated in Ndlovu emerges in respect of what should be done in the event that that the selection panel at their own discretion amend the requirements for consideration of the candidates who had applied to an advertised position. The crux of the Letsogo case is that even if the Respondent’s witnesses were correct in that the degree or diploma with english as a major is equivalent to a degree or diploma with communication as a major, when such selection panel exercises such discretion, the position should then be re-advertised to give other candidates an opportunity to apply as well.
22. The question is whether that conduct of the employer is enough to warrant interference with the prerogative of the employer to appoint a candidate of their choice? In my view, not in this. The LAC in the Ncane v Lyster NO and Others held that an arbitrator may only interfere with an employer’s substantive decision to promote a certain person where the decision is irrational, grossly unreasonable or mala fides. The Applicants could not establish any conduct that could be said to be unfair or irrational. Notwithstanding my reservations with processes that led to incumbent being appointed, in my view, there is no evidence that the Respondent acted irrational or mala fides or that the decision to appoint was unreasonable. The Applicant’s non-shortlisting is justified on the basis that the computer literacy certificate was a minimum requirement for consideration. The Applicant did not possess such a certificate.
23. I therefore find that the Respondent did not commit an unfair labour practice towards the Applicant.

AWARD
24. The Applicant’s unfair labour practice claim in terms of Section 186 of the Labour Relations Act 66 of 1995 is dismissed.

Thapelo Mathekga

(ELRC PANELIST)