In the matter between

NAPTOSA obo Mzwamadoda Applicant

And

Provincial Department of Basic Education: Eastern Cape 1st Respondent

MR Rebe 2nd Respondent
____________________________________________________________

ARBITRATOR: JOHN CHEEERE ROBERTSON

HEARD: 05 August 2020

DELIVERED: 25 August 2020

AWARD

DETAILS OF HEARING AND REPRESENTATION
1 This matter was set down for arbitration in terms of section 191(5)(a) of the Labour Relations Act (LRA) on 5 August 2020. The hearing was conducted via zoom. Ms N Mvolontshi (SADTU) represented Mr Mzwamadoda Honi (applicant). Mr A Buyana, an employee, represented the Provincial Department of Education Eastern Cape (1st respondent). Mr MR Rebe (2nd respondent) appeared in person. The hearing was recorded. The parties agreed to submit written closing arguments by 12 August 2020. I received the respondent’s written closing argument on 7 August and the applicant’s on 20 August 2018. I requested an extension within which to submit my award.

ISSUE TO BE DECIDED
2 The issue to be determined concerns whether the respondent acted unfairly towards the applicant in not short listing him for interviews for the post of Education Development Officer, Post No. ECDOE 14/01/19 advertised in the Sunday Times newspaper and dependent thereon appropriate relief.

BACKGROUND TO THE DISPUTE
3 The applicant along with others applied for the post of Education Development Officer, Post No. ECDOE 14/01/19. The minimum advertised requirements were as follows:
o 5 years minimum management experience as a Principal of a top performing school
o A recognized RVQ 13 qualification in the education profession, which includes a minimum of 8 years teaching experience
o Registration with SACE as professional educator
o Must be registered with SACE
o Good communication skills (written & verbal)
o Computer skills with excellent knowledge of Microsoft Packages
o A valid driver’s license
o Hands on experience and knowledge of teacher development and curriculum policy implementation practices
o A sound knowledge of the national Curriculum and Assessment Policy Statements and topical curriculum transformation issues
o Proven experience of leading and coordinating school’s improvement projects
o Ability to work independently as well as in a team

4 Mr MR Rebe, the 2nd respondent, was shortlisted, interviewed and subsequently appointed. The applicant was not shortlisted and subsequently referred a dispute relating to promotion to the Education Labour Relations Council (ELRC), the subject of this award.

5 The following was common cause between the parties:
o At the time of the advertisement in question, the applicant did not have 5 years minimum management experience as a Principal of a top performing school.
o That the applicant met 6 of the 11 minimum requirements listed in the advert, namely:
• A recognized RVQ 13 qualification in the education profession, which includes a minimum of 8 years experience
• Registration with SACE as professional educator
• Must be registered with SACE
• Good communication skills (written & verbal)
• Computer skills with excellent knowledge of Microsoft Packages
• A valid driver’s license

o The applicant acted for a period of 6 months (from January to end June 2019) in the post in an acting capacity

6 It was the applicant’s case that he met the remaining 4 requirements, the respondent was not in a position to confirm this, as the applicant had not been shortlisted on the basis of not having 5 years minimum management experience as a Principal of a top performing school

7 The applicant’s case was that he should have been shortlisted on the basis that he acted in the post for 6 months

8 The respondent disagreed and argued that the applicant was not entitled to be shortlisted on the basis of acting in the post for 6 months and further that he could not be shortlisted as he failed to meet the criteria of 5 years minimum management experience as a Principal of a top performing school.

9 As to relief, the applicant sought that the selection and appointment process be redone. The respondents sought that the status quo ante remain and that the applicant’s case be dismissed

10 Accordingly, the issue/s for determination are:
o Whether the respondent perpetrated an unfair labour practice in not shortlisting the applicant, and if so
o Appropriate relief

SURVEY OF EVIDENCE
The applicant’s submissions
11 The representative for the applicant argued to the effect that the respondent had gone beyond the prescription of PAM in requiring that the applicant must have 5 years management experience as principal in a top performing school and that on this basis it acted unfairly in not shortlisting the applicant. It was the applicant’s argument that one could not depart from the minimum requirements set out in PAM. She referred to the applicant’s employment history and positions he had held . She further argued that the applicant possessed the minimum requirements to be shortlisted. The applicant in his written argument did not rely on his 6 months acting in the post as a basis for being shortlisted.

The respondents’ submissions
12 The respondent argued to the following effect. Par. B5.4.9 of PAM did not assist the applicant as the requirement to be considered for shortlisting in a post, with regard to acting, was that the person must have acted for 12 months in the post, whereas the applicant had acted for 6 months. In the circumstances the respondent argued that the applicant did not qualify for shortlisting and that his claim be dismissed.

ANALYSIS OF EVIDENCE AND ARGUEMENT
13 I have considered all the evidence and argument, but because the Labour Relations Act 66 of 1995 requires brief reasons (Section 138(7)), I have only referred to the evidence and argument necessary to substantiate my findings and my award.

14 Section 186 (2) of the Labour Relations Act, 66 of 1995 (LRA) defines an unfair labour practice as meaning inter alia:
(2) “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;
…

15 The Labour Relations Act No 66 of 1995 requires employers to treat employees fairly when they apply for promotions . An employee who alleges that s/he is the victim of an unfair labour practice bears the onus of proving all of the elements of her claim on a balance of probabilities. The CCMA / Bargaining Council does not have a general unfairness jurisdiction and an employee referring an unfair labour practice dispute in terms of Section 186 must demonstrate that it falls within the section . The employee must prove not only the existence of the labour practice, but also that it is unfair.

16 Fairness requires that the position and interests of both the employee and employer are taken into account in order to make a balanced and equitable assessment. In judging fairness, a court applies a moral or value judgment to established facts and circumstances. In doing so, it must have proper regard to the objectives sought to be achieved by the Act .

17 The test or yardstick in unfair labour practice disputes, including disputes relating to promotion is fairness and:
o Where there is a rational basis for a decision, an arbitrator should afford an employer a margin of appreciation and should not easily interfere with the employer’s decision .
o Where the employer’s conduct has denied an employee a fair opportunity and thereby prejudiced him or her in presenting their candidature, the appropriate remedy, subject to there being a causal connection between the consequences of the procedural irregularity and its unfair effect on the promotion process, may be compensation alternatively to remit the matter back to the employer with or without instructions
o Where the employer’s decision to appoint the incumbent over the applicant was unfair , and but for the unfair or irregular appointment of the incumbent / conduct of the employer, the applicant would have been appointed, it may well be appropriate for an arbitrator to intervene on terms, which s/he deems reasonable (which may include instatement / promotion) based on fairness taking into account, amongst other things, the interests of the respective parties, subject in particular to:
• Proof by the applicant that s/he has the necessary qualifications, expertise and skills for the position and that the person promoted does not possess the same level of skills
• The applicant demonstrating that s/he was the most suitable (best) candidate of all candidates who applied for the post and would but for the conduct of the employer , have been appointed
• Whether the employer’s conduct in appointing the incumbent over the applicant is rationally justified (e.g. employment equity, service delivery, inherent requirements of the job)

18 The following examples from case law are instructive in respect of the case at hand:
o The process of selection inevitably results in a candidate being appointed and the unsuccessful candidates being disappointed. This is not unfair .
o Where an applicant did not meet the advertised requirements of the post at the closing date of the advertisement, s/he has no claim, see Khumalo & another v MEC Education KZN
o In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others ; it was held that the overall test is one of fairness, and 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 caused 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.
o Central to appointments or promotion of employees is the principle that courts and commissioner alike should be reluctant, in the absence of good cause, to interfere with the managerial prerogative of employers in making such decisions . In my view, good cause would entail a consideration of the factors set out in City of Cape Town v SA Municipal Workers Union on behalf of Sylvester and others as above .”
o Where an employer can rationally justify the promotion in question, arbitrators should be slow to interfere and conversely [e]ven though an employer has a prerogative to choose who to promote, its decision will be found to be irrational if it is not able to justify itl .
o 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 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.
o A selection panel may not unilaterally change the advertised requirements / criteria for a post to allow candidates who otherwise would not have been selected to participate in the selection process.

19 The references in PAM at Par. B5.2 read with Par. B5.4 / Par. B5.6 , set out the minimum requirements for appointment with regard to educational qualifications, statutory and experiential requirements as stipulated in Par. B3.2.1. These are minimum requirements and as such do not prohibit the respondent from setting higher criteria. The advertised post is a senior post and accordingly the requirement of 5 years management experience as a principal of a top performing school is not only rational but fair and reasonable.

20 In terms of PAM, Par. B5.4.4 and B5.6.4 , [all] applications that meet the minimum requirements and provisions of the advertisement must be handed to the SGB responsible for that specific institution / the responsible interview committee. It is clear from this that applications must meet the provisions of the advertisement, in casu, 5 years minimum management experience as a Principal of a top performing school. The applicant did not meet this criterion. Had the interview committee shortlisted and interviewed the applicant, they would, then have been unlawfully altering the advertised criteria and also would have been acting unfairly in respect of other candidates who did not apply on the basis of the advertised criteria .

21 It follows that the interview panel / respondent acted properly in not shortlisting the applicant in that he did not meet one of the minimum requirements as advertised for the post in question. The respondent’s conduct was in accord with the provisions of PAM and the advertisement. The reasons for excluding the applicant are rational and it cannot be said that the respondent acted unfairly towards him. I find that, the respondent did not act unfairly towards the applicant in not shortlisting him.

22 In the circumstances, I find that the applicant has failed to establish that he was treated unfairly in the selection process in question or that he has made out a claim for the relief sought. I make the following award.

AWARD
23 The conduct of the respondent, in setting as a requirement, 5 years minimum management experience as a Principal of a top performing school, for the post in question, and in not short listing the applicant, Mr Mzwamadoda Honi, does not constitute an unfair labour practice relating to promotion as envisaged in Section 186(2)(a) of the Labour Relations Act No. 66 of 1995 against the applicant.

24 The applicant, Mr M Honi, has failed to prove that the respondent, the Provincial Department of Education: Eastern Cape, committed an unfair labour practice relating to promotion against him.

25 The applicant’s (Mr M Honi’s) claim concerning an unfair labour practice relating to promotion, referred under Case No. PSES336-19/20EC is dismissed

Signature:
Panelist: John Cheere Robertson
ELRC
Sector: Public: Education