IN THE ELRC ARBITRATION BETWEEN:
M MOKURU “the Applicant”
and
DEPARTMENT OF HIGHER EDUCATION AND TRAINING “1st Respondent”
and
ZA MASHABA “2nd Respondent”
AWARD
Case Number: ELRC295 – 21/22GP
Last date of arbitration: 14 February 2022
Written arguments received on: 28 February 2022
Date of award: 22 March 2022 (extension granted)
COEN HAVENGA
ELRC Arbitrator
Details of hearing and representation
1. The arbitration hearing was held over several days, the last day being on 14 February 2021, at the Ekurhuleni West TVT College in Germiston.
2. The Applicant is Mr Mokuru, M, represented by Ms Ralawe, Y, an official of PSA. The 1st Respondent is the Department of Higher Education and Training (DHET), represented by Mr Mahlaba, M. The 2nd Respondent is Mr Mashaba, ZA, represented by Ms Visagie, R, an official of NAPTOSA.
Issue to be decided
3. The arbitration takes place in terms of the referral of the dispute by the Applicant. The parties concluded a pre-arbitration meeting, and the minutes thereof form part of the record of the arbitration hearing.
4. The parties agreed on the following common cause issues:
4.1 The Applicant is a PL1 Lecturer employed by Ekurhuleni West TVT College (EWC).
4.2 The Applicant earns around R310 000,00 per annum.
4.3 The vacant substantive post at EWC applied for by the Applicant appeared on Vacancy List 1 of 2020, advertised on 2 August 2020, Post Level 2, Educational Specialist Engineering Studies (Mathematics and Engineering Science) NC (V) Level 1 – 4, Ref: EWC19/2020, Closing 21 August 2020. (“the post”)
4.4 The Applicant is employed by the 1st Respondent at EWC.
4.5 The promotion was in relation to salary and status of the Applicant.
4.6 The Applicant was shortlisted for the post.
4.7 The Applicant was interviewed for the post.
4.8 The Applicant was one of the 3 recommended candidates.
4.9 The Applicant was ranked at no. 2 on the list of recommended candidates.
4.10 The 1st Respondent has already appointed another candidate with effect from 1 April 2021.
5. The following issues are in dispute:
5.1 Whether the appointment was irregular.
5.2 Whether the 1st Respondent committed an irregularity in the shortlisting, recommendation, and appointment of the 2nd Respondent.
5.3 Whether the 2nd Respondent qualified to be shortlisted for and appointed to the post of Educational Specialist Engineering Studies (Mathematics and Engineering Science) NC (V) Level 2 – 4, Ref: EWC19/2020.
5.4 Whether the Applicant was the best candidate for the post.
6. The parties agreed that the arbitrator is to determine whether the 1st Respondent committed an irregularity in the shortlisting, recommendation and appointment of the 2nd Respondent.
7. The relief sought by the Applicant is the setting aside of the appointment of the 2nd Respondent, the appointment of the Applicant into the post and/or protected compensation.
8. The parties agreed to the use of a common bundle of documents, marked as Bundle A.
Background to the dispute
9. The Applicant referred an unfair labour dispute relating to promotion at EWC to the Council. The Applicant applied for the post, was shortlisted, interviewed and recommended as the no. 2 candidate on the list of recommendations. The Applicant was not appointed, instead the 1st Respondent appointed the no. 1 recommended candidate on the list of recommendations, it being the 2nd Respondent. The Applicant alleges that he was the better candidate and should have been appointed.
10. The 1st Respondent argues that it followed all the processes to the letter of the law and appointed the best qualified and no. 1 recommended candidate. There was no irregularity in his appointment.
Summary of evidence
11. The proceedings have been recorded digitally, and a summary of the Respondent’s and Applicant’s witnesses’ evidence follows below. What follows is only a summary of evidence deduced at the arbitration and does not purport to be a verbatim transcription of all the testimony given. The digital record of the proceedings will reflect the complete testimony of the witnesses.
Applicant’s case
12. Manare Mokuru, the Applicant, testified under oath that he is a Physical Science and Mathematics lecturer. The dispute is based on his qualifications and experience. He believes he was the best candidate for the post. A62 is his score sheet for the interviews. He is not happy with the scores given to him, as it is not a true reflection of his qualifications and experience.
13. He waited a long time for the score sheet, and it might have been adjusted afterwards. A6 reflects his application for the post. A8 reflects his CV. The post was for Mathematics and Physical Science. The Applicant is one of the founders of Physical Science as subject at the College and has been involved since 2009. That makes him suitable to lead the Mathematics and Physical Science department. He is the only one with more that 10 years’ experience.
14. A31 reflects the CV of the 2nd Respondent. he did not do Mathematics in Matric. Therefore he should not have been shortlisted. His application was also not complete. He had only five subjects in Matric, as reflected on A42. One has to pass six subjects in Matric.
15. A13 reflects the Applicant’s senior certificate. He passed Mathematics and Physical Science. He passed all six Matric subjects. He was better qualified than the 2nd Respondent.
16. He did send a grievance letter to head office. His grievance was rejected. It was a promotional post. He was the no. 2 recommended candidate. He was the better qualified that the 2nd Respondent, who was the no. 1 recommended candidate. It will be difficult to work under the 2nd Respondent because he never taught those subjects.
17. Note: At this stage of the proceedings the Applicant’s representative applied to introduce additional documents as bundle B. The Respondents did not oppose, and it was allowed by the commissioner.
18. B1 is the Applicant’s Certificate of Evaluation of Qualifications. The final evaluation is REQV 14, professionally qualified. B2 shows the subjects the 2nd Respondent put him in charge of. The 2nd Respondent ran away from Physical Science. He gave himself comfortable subjects as reflected in B3. B4 reflects the results for 2021. The Applicant’s results were better, and he has been robbed of this post.
19. A43 is the 2nd Respondent’s National Diploma. There is no transcript with results for the certificate, and it is not known whether he passed those subjects. A19/20 is the transcript for the Applicant’s National Diploma. He did the required subjects, and it makes him the suitable candidate for the post. A14, 15, 16, 17 reflect his further qualifications. A44 reflects an unfinished qualification of the 2nd Respondent, which cannot be used. The post-graduate certificate of the 2nd Respondent reflected on A45 is not relevant to the post requirements.
20. During cross-examination the Applicant testified that he is qualified in Engineering Physics, not Engineering Science. Engineering Science does not appear on his transcript of qualifications reflected in A19.
21. The 2nd Respondent’s National Diploma reflected on A43 shows that he is qualified in Engineering Science. The 2nd Respondent did meet the minimum requirements for the advertised post. The Applicant scored 12 on the shortlisting score sheet, compared to the 2nd Respondent’s score of 10. The Applicant agrees that it shows his qualifications were considered for the process of shortlisting.
22. There was PSA observer, the Applicant’s union, present during the interview process. The Applicant agreed that it is for the purpose of overseeing fairness of the process. The Applicants conceded that he was well represented at the interview process.
23. The 2nd Respondent scored a total of 188 in the interviews, compared to the Applicant’s 148. There was a 40-point difference in favour of the 2nd Respondent. The 2nd Respondent therefore became the no.1 recommended candidate. The Applicant conceded that it is probably fair that the highest scoring candidate became the no.1 recommended candidate.
24. The Applicant agreed that the post did not require Physical Science. He complained because he knew the 2nd Respondent did not have Physical Science. The Applicant still maintained he was the best candidate, despite the 40-point difference in interview scores. However, he now understood that it is the scoring that caused him not to be appointed. He still felt that his qualifications were disregarded.
25. The Applicant agreed that the post was for a candidate who could oversee the department. He does not trust the 2nd Respondent’s CV. The Applicant agreed that he is not a curriculum expert.
1st Respondent’s case
26. The 1st Respondent called the 2nd Respondent as its only witness.
27. Zakhile Amon Mashaba, the 2nd Respondent, testified under oath that from 2021 until currently he taught Physical Science L2 AND L4, and Mathematics L2 and L3. The post was correctly advertised with Engineering Science as requirement. He has a National Diploma, and he met the minimum requirements of the post that was advertised.
28. The Education Specialist has to manage the Mathematics and Science department. One must have wider experience to be able to do that. One must also manage subjects one might not necessarily be qualified to teach in.
29. He does have an Assessor certificate. He did attach it to his application. A41 reflects his SACE certificate. A42 reflects his matric statement of results. He did pass Physical Science when it was converted to lower grade. He had five subjects and had to do a N3 diploma. A43 reflects his N3 National Diploma. He did meet the minimum requirements of the post.
30. He has more that 20 years teaching experience and did a Post Graduate Certificate in Higher Education at the University of Pretoria to formalise his training, as reflected in A45.
31. During cross-examination the 2nd Respondent testified that he was appointed in the disputed post on 1 April 2021. He oversees national examinations, manages the department, takes charge with registration, assists lecturers, and also lectures in Physical Science. There was a resignation, and he had to take over that subject.
32. The post requirements reflected in A3 does not include Physical Science, but Engineering Science. His national diploma with Mathematics and Science trumps his matric certificate. He met all the post requirements to be shortlisted for the post as reflected in A3.
2nd Respondent’s case
33. The 2nd Respondent did not present any further evidence and closed his case.
Analysis of evidence and argument
34. The Applicant and Respondents submitted extensive written closing arguments which form part of the record and will not be repeated here. I have considered all the arguments, legal principles and case law referred to by the parties, together with the other evidence, oral and documentary, presented by the parties during the arbitration hearing.
35. The parties agreed that the arbitrator is to determine whether the 1st Respondent committed an irregularity in the shortlisting, recommendation and appointment of the 2nd Respondent, and whether the 1st Respondent’s conduct constitutes an unfair labour practice related to the promotion of the Applicant as provided for in section 186(2)(a) of the LRA, and if so, what relief is to be awarded. It is not in dispute that the appointment would have constituted a promotion for the Applicant.
36. The relevant statutory provision to this matter is section 186(2)(a) of the LRA, which reads as follows:
“’Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving –
(a) 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 the provision of benefits to an employee;”.
37. The Applicant alleges an unfair labour practice and must show that it falls within the provisions of the definition contained in section 186(2)(a) of the LRA above. The onus in an unfair labour practice disputes falls on the Applicant. The standard of proof applicable in hearings of this nature is identical to the civil standard – “the (applicant) must prove the case ……………on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1. The employee must prove not only the existence of the labour practice, if it is disputed, but also that it is unfair. The employer must actually have done something or refused to do something. Whether the employer has committed an unfair labour practice is an objective, factual enquiry.
38. Mere unhappiness or a perception of unfairness does not establish unfair conduct – see Du Toit et al Labour Relations Law (5th ed) 488, as well as South African Municipal Workers Union obo Damon v Cape Metropolitan Council (1998) 20 ILJ 714 (CCMA). What is fair depends upon the circumstances of a particular case and essentially involves a value judgement. The fairness required in the determination of an unfair labour practice must be fairness toward both employee and employer (see National Union of Metalworkers of SA v Vetsak Co-Operative Ltd & others 1996 (4) SA 577 (SCA)1 589C–D; National Education Health & Allied Workers Union v University of Cape Town & others (2003) 24 ILJ 95 (CC)2 paragraph 38).
39. The arbitration of the promotion dispute in casu entails a review of the employer’s actions. The Constitutional Court’s examination of the concept of fairness where it has been held that the arbitrator is not given the power to consider afresh what he would do but to decide whether what the employer did was fair, is relevant – see Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) JOL 20811 (CC). As a general rule employers may appoint or promote employees whom the employer deems the most appropriate. The decision to promote is the employer’s decision. The arbitrator’s decision is whether the employer came to that decision in a fair manner. The focus in unfair promotion disputes falls much more on the procedure followed by the employer – see Arries v CCMA & others (2006) 27 ILJ 2324 (LC); City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others (2013) 34 ILJ 1156 (LC).
40. I firstly have to decide whether there was unfair action by the 1st Respondent that resulted in the Applicant not being appointed in the post of Education Specialist, and if so, whether the action falls within the definition of an unfair labour practice as defined in section 186(2) of the LRA.
41. It is common cause that the Applicant was the no. 2 recommended candidate on the preference list. The Applicant argues that he was the better qualified candidate, and that the 2nd Respondent did not meet the minimum requirements of the post, and should not have been shortlisted, interviewed and appointed. The Applicant therefore should have been appointed in the post.
42. The arbitration of a promotion dispute does not entail a hearing de novo, but rather a review of the employer’s decision. In this respect I have regard to the Constitutional Court’s examination of the concept of fairness in the matter of Sidumo and Another v Rustenburg Platinum Mines and others (2007), where it has been held that the arbitrator is not given the power to consider afresh what he would do but to decide whether what the employer did was fair.
43. The Applicant believes that he was the best candidate for the post based on the believe that the post required Mathematics and Physical Science, and that he was better qualified than the 2nd Respondent in that respect.
44. The Applicant’s arguments are based on a mistaken belief and interpretation of the minimum requirements for the post. In cross-examination the Applicant conceded that Physical Science was not a requirement of the post. A3 indeed clearly reflects that the Mathematics and Engineering Science are the requirements, and not Physical Science as the Applicant alleges. The evidence shows abundantly clear that the 2nd Respondent met all of the minimum requirements of the post that was advertised in the Vacancy List 1 of 2020, advertised on 2 August 2020, Post Level 2, Educational Specialist Engineering Studies (Mathematics and Engineering Science) NC (V) Level 1 – 4, Ref: EWC19/2020.
45. I find no irregularity in the shortlisting of the 2nd Respondent. A42 reflects his matric statement of results. He did pass Physical Science when it was converted to lower grade. He had five subjects and had to do a N3 diploma. A43 reflects his N3 National Diploma, which cured any lack of qualifications that might have emanated from his matric results. The 2nd Respondent has a SACE certificate. The undisputed evidence shows that he has more than 20 years teaching experience, and that he did a Post Graduate Certificate in Higher Education at the University of Pretoria to formalise his training, as reflected in A45.
46. The Applicant is in fact not in possession of an Engineering Science qualification, one of the requirements of the post, which the 2nd Respondent does have. The Applicant’s argument that his better qualifications were ignored, is not valid, as he received a higher shortlisting point that the 2nd Respondent, i.e. 12 points versus 10 points. This is probable proof that the 1st Respondent did consider the full basket of his qualifications.
47. I find no proof of any irregularity during the interview process, during which the Applicant scored 40 points lower than the 2nd Respondent. I find no substance in the Applicant’s argument that the interview score sheets might have been adjusted merely because he waited for it for a long time. He presented no substantive, credible evidence that would support such allegation on a balance of probabilities. An official of PSA, the Applicant’s union, was present during the interview and scoring process, and would surely have cried foul, and would surely have been called as witness if anything untoward happened. The fact that the Applicant did not call such a witness, justifies the inference to be drawn that the representative was satisfied with the interview and scoring process.
48. The 2nd Respondent outscored the Applicant and it justified his recommendation as the no. 1 candidate for appointment.
49. As a legal concept substantive unfairness cannot exist in abstraction. Therefore in order to prove substantive unfairness that would entitle the Applicant to substantive relief the Applicant also needs to establish a causal connection between the irregularity or unfairness and the failure to promote. To do that he needs to show that, but for the irregularity or unfairness, he would have been appointed to the post – see National Commissioner of the SA Police Service v Safety & Security Bargaining Council & others (2005) 26 ILJ 903 (LC); Woolworths (Pty) Ltd v Whitehead (2000) 21 ILJ 571 (LAC) para 24 per Zondo AJP; University of Cape Town v Auf der Heyde (2001) 22 ILJ 2647 (LAC) para 35; Minister of Safety and Security & others v Jansen NO (2004) 25 ILJ 708 (LC) para 27. This in any event needs to be proved in order to prove substantive unfairness and before any form of substantive relief such as appointment can be awarded – see KwaDukuza Municipality v SALGBC [2008] 11 BLLR 1057 (LC). This necessarily means that he must show that not only was he better qualified and suited for the post than a successful candidate who was appointed, but also that he was the best candidate for the position. I find that the Applicant did not show this.
50. The Applicant must prove that the decision not to appoint him was unfair – see Ndlovu v CCMA (2000) 21 ILJ 1653 (LC). What is fair depends on the circumstances of a particular case and essentially involves a value judgement – see National Education Health & Allied Workers Union v UCT (2003) 24 ILJ 95 (CC) par 33. The fairness required in the determination of an unfair labour practice must be fairness towards both employer and employee – see National Union of Metalworkers of SA v Vetsak Co-Operative Ltd & others 1996 (4) SA 577 (A) 589C-D; National Education Health & Allied Workers Union v UCT supra para 38. In Provincial Administration Western Cape (Department of Health & Social Services) v Bikwani & others (2002) 23 ILJ 761 (LC) at paragraph [29]–[32] the Labour Court held that: “There is considerable judicial authority supporting the principle that courts and adjudicators will be reluctant, in the absence of good cause clearly shown, to interfere with the managerial prerogative of employers in the employment selection and appointment process. Courts should be careful not to intervene too readily in disputes regarding promotion and should regard this an area where managerial prerogatives should be respected unless bad faith or improper motive such as discrimination are present.”.
51. I find the decision by the 1st Respondent to appoint the 2nd Respondent to be justified in law. It is indeed so that the 1st Respondent retains the managerial prerogative to appoint or not. In the matter of Herbert and the Department of Home Affairs CCMA (1998) it was held that Goliath v Medscheme (Pty) Ltd (1996) 5 BLLR 603 (IC) provides the correct answer when dealing with decisions to promote where discrimination on prohibited grounds is not alleged, as in this case. It was stated there that “in the absence of gross unreasonableness which leads the court to draw an inference of mala fides, this court should be hesitant to interfere with the exercise of management’s discretion”. Le Roux, in his article entitled “Developments in individual labour law” in Current Labour Law 1996 page 46, reinforces this view.
52. I am of the opinion that the 1st Respondent had reasonable and fair grounds for not appointing the Applicant, and it could not be classified as defective reasoning on the part of the 1st Respondent.
53. Dissatisfaction or a general perception of unfairness is not sufficient. In casu where there is no obvious or glaring deviation from the prescribed process, I find no substance in the argument that the Applicant was treated unfairly. The 1st Respondent did not act irrationally, capriciously or arbitrarily.
54. The onus is on the Applicant to prove an unfair labour practice relating to promotion, and I am of the opinion that the Applicant did not discharge that onus. I am satisfied that the 1st Respondent did not commit a practice that would constitute unfair action that would fall within the definition of an unfair labour practice as provided for in section 186(2)(a) of the LRA. Accordingly the Applicant’s claim must be dismissed.
55. The Applicant is not entitled to relief.
Award
56. The application is dismissed.
SIGNED AT KEMPTON PARK ON THIS 22nd DAY OF MARCH 2022.
Coen Havenga