23 September 2021 – ELRC55-20/21KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT PORT SHEPSTONE
CASE NO.: ELRC55-20/21KZN
IN THE MATTER BETWEEN: –
NAPTOSA obo SIMA M APPLICANT

AND

DEPARTMENT OF EDUCATION – KZN 1ST RESPONDENT
MPANZA G 2ND RESPONDENT_

ARBITRATOR : P. JAIRAJH

DATE OF AWARD : 20 SEPTEMBER 2021

Applicant’s representative : MS L. ROOS
Telephone :
Fax :
Email : LEANNR@NAPTOSA.ORG.ZA

1st Respondent’s representative : MR M.E. MABASO
Telephone : (033) 846 5200
Fax :
Email :

2nd Respondent’s representative : MR L.L MANTSHO
Telephone :
Fax :
Email :

DETAILS OF HEARING AND REPRESENTATION
1. This matter was scheduled for arbitration on 15 April 2021, 2 June 2021 and 23 August 2021 at Ugu District Office, Port Shepstone.
2. Ms L. Roos from NAPTOSA represented the applicant (employee), Mr M.E. Mabaso represented the first respondent (employer) and Mr S.B. Mkhize from SADTU represented the second respondent.
3. The parties, at the conclusion of proceedings, elected to submit written closing arguments on or before 3 September 2021.
BACKGROUND TO THE DISPUTE
4. This is a promotion dispute involving Post Number 697 at Xhonywa Primary School, being the post of Deputy Principal which was advertised by the first respondent under HRM Circular No. 36 of 2019. The applicant together with the second respondent and other candidates applied for the post. At the conclusion of the interviews, the second respondent and applicant were ranked first and second respectively. The second respondent was the successful candidate and promoted to the post. The applicant referred an unfair labour practice dispute to the ELRC relating to promotion.
ISSUE TO BE DECIDED
5. I have to determine whether the non-appointment of the applicant to the post in question by the first respondent constituted an unfair labour practice in terms of section 186(2)(a) of the Labour Relations Act, 66 of 1995, and if so, make an appropriate relief.
SUMMARY OF EVIDENCE AND ARGUMENTS
APPLICANT’S SUBMISSIONS
MHLANGANYELWA EPHRAIM SIMA
The salient aspects of Mr Sima’s evidence are recorded below.
6. He has been employed at Xhonywa Primary School since 1996 and has been the Departmental Head in the Intermediate Phase for approximately 22 years.
7. He is the Coordinator of Curriculum meetings. Some of his management duties at school are policy implementation, operationalization of the school curriculum and attending to teachers and learners’ welfare. He plays a pivotal role when it comes to strategic planning. He works with the managers who deal with sport to find an amicable solution between the curriculum and different sporting codes to bring about a holistic development of the learners.
8. When he applied for the post in dispute, he was holding the position of Acting Deputy Principal for more than 12 months.
9. He believed that as the Acting Deputy Principal he had further developed his communication, analytical, interpersonal relations and listening skills. His psychology background also helped him to deal with interpersonal relations.
10. At the school, he started a reading program trying to redress shortfalls in learners’ reading abilities through innovative ways of reading and he has also been involved in mathematical literacy to assist learners who are struggling. He and another colleague initiated a Rugby club at the school, which went on for about 10 years until the community decided to get involved and they had to step aside. Around 2003, he initiated a school garden at the school but that stopped after about 5 years.
11. He is quite involved in the community, especially for the learners to be vigilant against abuse and gender abuse, as well as in the community policing forums.
Under cross-examination by first respondent, he testified that:
12. He thought that the requirements for the disputed post were five years’ experience and a 3-year diploma.
13. When it was put to him that the second respondent arrived at the school in 2013 and the post was advertised in 2019, he conceded that she had more than five years’ experience when the post was advertised and she qualified to apply for the said post.
14. He confirmed that the second respondent had a degree and agreed that in terms of her academic qualification, she qualified to apply for the disputed post.
15. He agreed that there was a sifting process and there were no mistakes on the second respondent’s CV.
16. He agreed that there was a shortlisting process whereby the CVs were read to determine the number of candidates to be interviewed.
17. He agreed that the Procedure Manual specified that there must be a minimum of five candidates to be interviewed but additional candidates can be added. He agreed that a candidate who had been acting in the post for more than 12 months was also considered. He did not dispute that because he had acted for 12 months, he would have been considered during the shortlisting process, if his score was below the candidates who were supposed to be interviewed.
18. He did not dispute that his CV was taken into consideration during the shortlisting and agreed that all his programs and projects were taken into consideration.
19. He agreed that he was interviewed together with the second respondent and other candidates. It was correct that the purpose of the interview was to find out more about each candidate, how each candidate presents himself or herself and how they answer the questions that are put to them other than what the candidate had written in their CV.
20. It was correct that he was called for an interview, asked questions and was scored, like all the other candidates that were interviewed. He did not know how the second respondent and the other candidates were scored.
21. He conceded that the Interview Committee (hereinafter referred to as “the IC”) looked at the scores and then ranked the candidates according to the scores. He agreed that according to the IC, the best candidate was the one that was scored higher than the others.
22. He agreed that the IC had submitted that the number one candidate was the second respondent, who was appointed and he was ranked second in the score sheet.
23. When it was put to him that the process was fair, he stated that he would not say that the process was fair because according to the information that he gathered, observers observed a composition and they rely on this collaboration with NATU, who were not present during the interviews. He conceded that he could not say whether the process was fair or not.
Under cross-examination by second respondent, he testified that:
24. He did not know what criteria were used during the interview process.
25. When questioned if he knew whether his performance or that of the second respondent was better at the interview, he stated that according to his knowledge, he had performed well but he would not know about the other candidates. He conceded that the second respondent could have performed better than him, but further stated that he thought that he was the best candidate.
Under re-examination, he testified that:
26. He did not believe that an interview score alone makes a person the best candidate for the post because he contemplated how one could become a deputy principal if one had no management skills or had never managed a department.
DAKHI HILSON NQOKO
The salient aspects of Mr Nqoko’s evidence are recorded below.
27. He is the Principal of Xhonywa Primary School and was a member of the IC. His role was to read the questions to the candidates.
28. Referring to the Minutes, he confirmed that he suggested that the applicant, who was the Acting Deputy Principal at that time, be given an opportunity because of his expertise and experience, since he had been the Department Head from 1998 and he had acted in the post.
29. Referring to Minutes, he agreed that the Union Observer, Mr Danca (hereinafter referred to as “Danca”) had said that they should do things procedurally and not entertain the interest of the principal but further stated that Danca was laughing so he took it as if he was joking, and he did not expect that this would be written down in the Minutes by the secretary.
30. As far as he knew, the Departmental Nominee, Mr Gagai (hereinafter referred to as “Gagai”), was reading the Procedure Manual and explaining, as summarized in the Minutes. Gagai confirmed with the IC that they understood what he was reading and everyone was satisfied because he also explained in IsiZulu to the SGB members.
31. Referring to the Personnel Administrative Measures (PAM) , he stated that while they were discussing the criteria to be followed in the interview, they agreed that the candidates must be listed according to the scores.
32. The Minutes did not indicate that it was a criterion that the candidates would be ranked according to the score. He reiterated that he was focusing on his portfolio. He did not write the Minutes and he did not have the right to change the Minutes; he had to submit them like that.
33. The criterion that candidates be ranked according to their scores was determined before the interviews took place. It was his suggestion to recommend the applicant but the other members opposed it and no one seconded him. He thought that he might have an influence, even though the panel had agreed on the candidate, and did not favour what he had suggested.
34. Referring to the second respondent’s score of 31 and the applicant’s score of 29, he believed that a two-point difference in the interviews was different and explained it as 12 being bigger than 10.
35. He confirmed that he signed the applicant’s score sheets. His signatures were not on the second respondent’s score sheets, and he thought that this was just a mistake because Gagai came with all the documents and gave him to sign. He was not against signing and his intention was to sign everything without hesitation.
36. If he had any intention of not signing he would have explained that he was not going to sign the second respondent’s score sheet. He reiterated that he suggested that they consider the applicant but no one seconded him because they were following the correct procedures as in the Procedure Manual and the criteria that the panel had agreed upon.
37. Referring to the Minutes wherein it was indicated that the SGB was not given an opportunity to meet alone and recommend the top three candidates, he stated that the secretary had written the Minutes. After his suggestion that the applicant be given an opportunity, he was not happy. He was given an opportunity to motivate to the whole SGB and he stated that he requested the chairperson to meet outside because he was actually trying to convince the chairperson to second him but after the discussion they resolved that the process must go on.
38. Gagai and Danca were part of the ratification meeting with the SGB. Since he was new, only six months in office after being appointed as a permanent Principal, he asked Danca certain things because of his knowledge and capacity.
39. Referring to the Role of Organised Labour as Observers , he stated that whatever Danca contributed, was because they as members had asked him to clarify certain things that they did not know.
Under cross-examination by first respondent, he testified that:
40. There was nothing wrong with the shortlisting and the interview process; everything was fair and straight forward. The highest scored candidate in the interviews was the second respondent and the second highest scored candidate was the applicant.
41. There was an SGB meeting for ratification purposes. He suggested that the applicant should supersede the second respondent during that particular meeting but no one supported him. The second respondent scored more than all the other candidates, therefore they recommended her.
42. He agreed that he was a member of the SGB by virtue of being the principal of the school, meaning that he was the ex-officio member of the SGB. As the SGB, they recommended that the second respondent should be appointed by the Department.
43. When referred to the Scheduled of Recommended Applicants (EHR 11), he agreed that this was the preference list of the SGB and agreed that they recommended that the second respondent should be number one candidate, and he averred that procedures were followed. After he had suggested that the applicant must be given an opportunity, they explained to him and he then accepted and agreed that the second respondent should be the candidate of the day.
44. He signed all the documents that he received from Gagai and he averred that those documents that were not signed was just a minor mistake on the side of Gagai because it means that he did not give it to him for signing and it was not that he resisted signing those documents.
45. He agreed that the EHR 11 was ratified by the SGB and according to his knowledge there was nothing wrong with the ratification process.
46. When questioned if the whole process was fair in recommending the second respondent as Deputy Principal at his school, he stated that it was 100% fair.
47. The second respondent was his immediate supervisee and he stated that she was excellent in her job.
Under cross-examination by second respondent, he testified that:
48. He agreed that it was his suggestion that the applicant should be the preferred candidate and he agreed that he was not part of the scoring team. When questioned if he considered the scoring of all candidates as being fair or unfair since he was not part of, he stated that it was fair.
FIRST RESPONDENT’S SUBMISSIONS
ZAKILE GAGAI
The salient aspects of Mr Gagai’s evidence are recorded below.
49. As the departmental nominee, he was involved in the shortlisting and interview section processes. There was nothing wrong with the shortlisting and interview processes. Everything went well and according to his knowledge the process was free and fair. They were able to follow all the procedures that they were supposed to follow.
50. Referring to the Interview Assessment (EHR 10), he stated that Mr J.B. Zenda, Ms B. Ndovela and Mrs B.K. Miya were the only scorers. Nqoko was a member of the IC who had asked the questions during the interviews.
51. Scores were summarized on the EHR 10; they would agree on a certain score and indicate it on the document as consensus. Referring to the second respondent’s EHR 10, he noted that these pages were not signed by Nqoko as well as the secretary, Ms N.C. Ngqobe.
52. Referring to the EHR 11, he confirmed that this document was signed by both Nqoko and Ngqobe. The EHR 11 was a schedule of recommended candidates, wherein the panel ranked the candidates in terms of their scores.
53. The first candidate to be recommended was the second respondent and the second candidate was the applicant. The second respondent scored 31 and the applicant scored 29.
54. He did not see anything tainting the process or sinister about Nqoko not signing EHR 10; he thought that this was just human error. Referring to EHR 10, he stated that the process was fair and he did not see anything tainting the process even though both Ngqobe and Nqoko did not sign these documents. According to him, if they had issues they could have raised it to say that they are not signing but nothing was raised, that is why he was saying that it was just human error.
55. There was a meeting for ratification. The purpose of ratification was to give a report to the SGB from the beginning to the end of the process and also to inform them about the recommended candidate. The IC members give a report to the SGB during the ratification. The IC members are all those who were part of the process, including the union observers because they are part of that IC. The Procedure Manual states clearly who is supposed to be there. The resource person is part of that process because he/she has a responsibility to make sure that what transpired during the process of shortlisting and interviews are reported as they are, and make it a point that when he/she goes back and reports to the Department, he/she reports what he/she knows.
56. When told that the applicant’s witness, Nqoko testified that he had made a suggestion that the applicant should supersede the second respondent, he stated that Nqoko had raised it and there were discussions around it. He gave them time to talk about it because the process was being chaired by the chairperson of the IC and while being deliberated, he explained the process.
57. What Nqoko had raised was possible but there was a process that should be followed and he read the Procedure Manual guiding them as to what they should do as the SGB, if they wanted to supersede. He explained that the process to supersede lies with the SGB and they should specify and give clear reasons why they want to supersede. There was no big discussion about this matter because Nqoko raised it but there was no seconder on the side of the IC. Danca had requested that they should just follow the procedure in doing whatever, but they did not pursue the superseding.
58. He also suggested that they take a break so that they could talk amongst themselves to decide, and they went for a break but when they came back they decided to continue.
59. The ratification went very well and the EHR 11 was signed and the SGB Chairperson signed the EHR 11 on 29 November 2019.
60. He reiterated that the process went very well, was free and fair. There was nothing that indicated that the process was somewhere somehow disturbed. In fact, if there was such kind of a problem, one would have detected it during the process and there was nothing except where Nqoko made a request which was explained and they moved on. According to him, the second respondent presented herself very well and she deserved to be put on top of the list.
Under cross-examination by the applicant, he testified that:
61. When questioned as to what procedure Danca had requested they follow, he stated that it was just a matter of Danca asking that they should just follow the procedure as per the Procedure Manual.
62. He confirmed that he read from the Procedure Manual, being HRM 36 of 2019. When referred to the Minutes and PAM and questioned if the Procedure Manual states that candidates must be ranked according to the scores, he stated that it did not, but in fact they had ranked the candidates according to the order of preference.
63. When referred to the Minutes where Danca had said that they should rank the candidates according to scores, and was questioned as to how he guided the IC after this statement, he stated that he told the IC that if they felt like superseding, it was the responsibility of the SGB and not the IC. The IC needed to agree on superseding and make a recommendation to the SGB who would then take a decision.
64. When told that the IC must rank the candidates in order of their preference, together with a brief motivation and submit to the SGB for their recommendation to the employing department, he disagreed when it was put to him that his statement of superseding being the responsibility of the SGB was incorrect.
65. When he gave the IC a break to discuss amongst themselves, that discussion took place without the presence of him and Danca. When questioned if that discussion should not have taken place in the presence of him and Danca to ensure correct guidance, he stated that when you supersede, it is not about changing the ranking order. Candidates are ranked according to their scores but you make a motivation to say that you want another candidate to be the number one candidate because of A, B and C. He did not see any reason for him to be in that discussion because they needed to discuss among themselves and decide what they want so that when the SGB converged they were able to take a decision.
66. When it was put to him that the process from shortlisting to the IC making the final recommendation must be done in the presence of union observers and the departmental resource person, he stated that that is what happened because they came back and reported to them as to what they want. He was present in all discussions from start to end.
67. It was put to him that that discussion was part of the recommendation they were going to make to the SGB therefore; he and Danca should have been present. He averred that they took a break and that was basically an opportunity for them to talk among themselves as the issue was raised by Nqoko but it was never seconded that is why he afforded them an opportunity to discuss amongst themselves.
Under re-examination, he testified that:
68. He gave the members an opportunity to discuss the suggestions by Nqoko during break time and he reiterated that the process was fair.
SECOND RESPONDENT’S CASE
The Second respondent did not present a case.
ANALYSIS OF EVIDENCE AND ARGUMENT
I have considered all the arguments of the parties as well as the documentary evidence and what follows is a brief summary relevant to the dispute at hand and does not reflect all the arguments considered in deciding this matter.
69. The Applicant claims that the first respondent committed an unfair labour practice relating to promotion by not appointing him to the post of Deputy Principal at Xhonywa Primary School. The onus is on the applicant to show that the employer’s conduct in not appointing him was unfair.
70. In terms of the Labour Relations Act, General provisions for arbitration proceedings, section 138(1) reads as follows:
“The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities”.
71. This matter was referred for arbitration in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 (“the LRA).
72. In terms of section 186(2)(a) of the Labour Relations Act 66 of 1995, 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 dismissal for a reason relating to probation] or training of an employee or relating to the provision of benefits to an employee.
73. It is apparent and was clear to all parties that ELRC Collective Agreement 3 of 2016 provides the Guidelines in Promotional Arbitration disputes.
74. It is common cause that the applicant applied for the post in question, was shortlisted and interviewed for the post together with other candidates, and he ranked second out of all the candidates. The relief sought by the applicant was the setting aside of the appointment of the second respondent and he sought to be promoted to the post in dispute, retrospectively from date of appointment of the second respondent.
75. It is not in dispute that the second respondent scored higher and was appointed to the post.
76. In Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) the court held at par [79] “A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.”
77. In Aries v CCMA & others (2006) 27 ILJ 2324 (LC) the Court held at [16] that “there are limited grounds on which an arbitrator, or a court, may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. The court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner”.
78. In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others (2013) 34 ILJ 1156 (LC); [2013] 3 BLLR 267 (LC) it was held that “in deciding whether the employer acted fairly in failing or refusing to promote the employee it is relevant to consider the following:
– whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the employer;
– whether the employer’s decision was arbitrary, or capricious, or unfair;
– whether the employer failed to apply its mind to the promotion of the employee;
– whether the employer’s decision not to promote was motivated by bad faith;
– whether the employer’s decision not to promote was 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;
– whether the employer’s decision not to promote was taken in a biased manner.”
79. It is common cause that the applicant had acted in the post in dispute. The applicant believed that he was the best candidate based on his experience and his management experience.
80. Section 10.13 of HRM 36 of 2019, which is similar to PAM, B.5.4.12 provides as follows:
“At the conclusion of the interviews, the Interview Committee must rank the candidates in order of preference utilizing the scores as a guide and complete form EHR 11 which must thereafter be submitted with a brief motivation to the School Governing Body for their recommendation.
81. In Observatory Girls Primary School & others v Head of Department: Department of Education, Province of Gauteng, Case no 02/15349 [2006] JOL 17802 (W) it was held that strict compliance with relevant guidelines and collective agreements is not necessary, substantial compliance is sufficient.
82. It was the applicant’s argument that Danca had influenced the IC and Gagai had failed to advise the IC that they did not have to rank the candidates according to their scores but in terms of preference.
83. Both the applicant’s witness, Nqoko and Gagai testified that the shortlisting and interview process was free and fair. Nqoko testified that the panel had determined before the interviews took place that the candidates would be ranked according to their scores.
84. Nqoko testified that he had suggested that the applicant be considered for the post however his suggestion was never seconded. It is not in dispute that there were discussions around his suggestion. It is therefore apparent that there was no consensus by the panel that the applicant should be the preferred candidate.
85. In the applicant’s closing arguments, they speculated that Nqoko had not signed the second respondent’s EHR 10 because he had not agreed with the scoring and therefore withheld his signature. Nqoko provided a plausible explanation as to why his signature was not on the documents and further testified that he had no objections to signing these documents. It is evident that both Nqoko and the secretary had not signed the second respondent’s EHR 10 however; this does not in itself prove bad faith or improper motives.
86. It is also noted that there was no challenge to the actual scoring of the candidates or the responses captured by each panellist.
87. The applicant agreed that his CV, all his programs and projects were taken into consideration during shortlisting and he agreed that according to the IC, the best candidate was the one that was scored higher than the others.
88. He conceded that the second respondent could have performed better than him and he conceded that he was unable to say whether the process was fair or not.
89. There is no evidence to suggest that the second respondent had an undue influence on the panel or was unduly favoured by the panel or that Danca had an undue influence on the panel.
90. The court provided in National Commissioner of the SA Police Service v Safety and Security Sectoral Bargaining Council and Others (2005) 26 ILJ 903 (LC), there must be a causal connection between the unfairness complained of and the prejudice suffered.
91. In Ndlovu v Commission for Conciliation, Mediation and Arbitration and Others (2000) 21 ILJ 1653 (LC) at 1655-6, the court stated: “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 to the post in preference to the complainant was unfair. That will almost invariably involve comparing the qualities of the 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”.
92. I accept that the first respondent has a prerogative in making a decision to appoint a candidate. I cannot find that the first respondent, in exercising its discretion, exercised it in an arbitrary manner, without applying its mind, unfairly or in a biased manner.
93. In Ncane v Lyster NO and Others [2017] 4 BLLR 350 (LAC), the court held at par [25] “When it comes to evaluating the suitability of a candidate for promotion, good labour relations expect an employer to act fairly but it also acknowledges that this is not a mechanical process and that there is a justifiable element of subjectivity or discretion involved. It is for this reason that the discretion of an arbitrator to interfere with an employer’s substantive decision to promote a certain person is limited and an arbitrator may only interfere where the decision is irrational, grossly unreasonable or mala fides.”
94. In Noonan v Safety & Security Sectorial Bargaining Council & others (2012) 33 ILJ 2597 (LAC), the court held at par 13(i): “It is insufficient for a complainant to say that he or she is qualified by experience, ability and technical qualifications; he or she must also show that the decision to appoint someone else in preference to him or her was unfair. If the employer’s decision to appoint another candidate is rational, no question of fairness can arise.”
95. The applicant did not present any evidence that he ought to have been preferred and appointed above the second respondent. The applicant has not proved that he was the best and most suitable candidate for the post.
96. I find that the applicant has failed to discharge the burden of proof on a balance of probabilities that the conduct of the employer constituted an unfair labour practice.
AWARD
97. The application is dismissed and the applicant is not entitled to any relief.
98. There is no order as to costs.