IN THE ELRC ARBITRATION
BETWEEN: ELRC 526-24-25GP

THENDANI NEMATHAGA “the Applicant”
and

CENTRAL JOHANNESBURG TVET COLLEGE “the Respondent”

ARBITRATION AWARD

Case Number: ELRC526-24/25GP

Date of award: 20 January 2025
Gcina Mafani
ELRC Arbitrator

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

1. DETAILS OF HEARING AND REPRESENTATION

1.1. The arbitration was scheduled for the 30th of October 2024 however the Applicant was not represented due to non-availability of his Union Representative, the Applicant applied for a postponement which was granted.
1.2. The arbitration was then rescheduled for the 18th of November 2024 and proceeded as such. Both parties were present, the applicant, Tendani Nemathaga represented himself, the First Respondent, Central JHB TVET College together with Patience Shibane were represented by Mr. Thokozani Nkambule the Employee of the Respondent and the Second Respondent Ms. Noxolo Mbonisweni was represented by Mr. Sizwe Dlamini the Union Official of NEHAWU.
1.3. The proceedings were held virtually.
1.4. The arbitration was concluded on the 18th of November 2024
1.5. Before the start of the arbitration process, all the parties submitted their bundle of documents by email.
1.6. The parties agreed to file their closing arguments by close of business on the 29th of November 2024.
1.7. The submissions of the parties were carefully considered but will not be repeated herein as contents basically mirror what was put to the parties during the leading of evidence and cross examination in the arbitration.

2. PRELIMINARY ISSUES

2.1. Before the start of the arbitration process, the Applicant raised an objection stating that the second and the third respondent did not have to be present at arbitration as this case was not about them. Both the first Respondent and Second Respondent argued that their members had an interest in the matter and therefore had to be present. A ruling was made to proceed with all the parties present citing City of Johannesburg & Others v SA Local Authorities Pension Fund as well as Amalgamated v Department of Health KZN for the decision.

3. BACKGROUND

3.1. The Applicant Tendani Nemathaga is an employee of the Respondent. He is currently holding an HOD position PL3 since 2010.
3.2. He testified that he joined the College in 2004 on a contract, in 2006 he was appointed permanently at PL1, in 2008 he was promoted to a Senior Lecturer position PL2. In 2010 he was again promoted to an HOD PL3 position which is the position he is currently holding.
3.3. He testified that whilst holding the HOD position one of the Managers approached him, recommended that he should register at WITS for a Certificate in Education (ICT in Education) which he did successfully.
3.4. When the posts were advertised he knew that he was qualified for the PL5 Campus Manager Posts.
3.5. Dissatisfied with his non shortlisting the Applicant referred a dispute to the ELRC for unfair labour practice.
3.6. The arbitration is in respect of a referral by the Applicant of an alleged unfair labour practice as provided for in section 186(2)(a) of the Labor Relations Act 66 of 1995 (LRA.)
3.7. Given the above, the Commissioner is required to determine whether the first Respondent committed an unfair labour practice relating to promotion in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 when it failed to shortlist the Applicant for an interview to a post of (Campus Manager) and if so the appropriate relief including six (6) months compensation.

4. APPLICANT’S EVIDENCE AND ARGUMENTS

4.1. The Applicant testified under oath and stated that the minimum requirements for the two Campus Manager posts were: The National Senior Certificate / Grade 12/ plus a recognised three (3) or four (4) year qualification (Degree or Diploma) which includes professional teacher qualification. A minimum of seven (7) years working experience in the TVET sector education institution of which at least three (3) years should be at a Managerial level. Must be registered with SACE, Computer literacy (MS Word, Excel, PowerPoint, Access to Outlook) and must also be in position of an unendorsed valid driver’s licence.
4.2. He testified that he qualified for the posts and therefore applied. He was shocked when he learnt that he had not been shortlisted because he did not have the requisite qualification.
4.3. He testified that he knew that all the people that were shortlisted did not have the three (3) or four (4) year teacher’s qualification.
4.4. He enquired with the HR Manager Mr Plaatje who responded by indicating that all the individuals who were shortlisted had a B, ed degree.
4.5. On the 8th of September 2023, he wrote a letter to Head of Corporate Services to dispute the appointment calling upon him to halt the process and attend to his dispute. He later received a response from Ms Mashele who stated that he did not possess the required qualification, he only had an ICT in Education Implementation which is a six (6) months course.
4.6. The Applicant was adamant that he qualified for the positions and that all the candidates that were shortlisted did not meet the requirements.
4.7. He testified that he was subjected to another criteria, not the same criteria everyone was subjected to.
4.8. When he referred the matter to the ELRC he was informed that his referral was premature then advised to wait till the appointment, which he did.
4.9. The Respondent submitted under cross examination that both the second (2) and the third (3) Respondents were qualified, in-fact that they are the most suitable and preferred candidates.

5. Witness for the Applicant
   THEMBI MASHELE (The Deputy Principal Academic Services)
   5.1. This witness testified under oath and stated that she is the Deputy Principal Academic Services. She was aware of the Applicant’s complaint regarding his non shortlisting. She confirmed that she was the author of the response sent to the Applicant on page A6 of the Applicant’s bundle.
   5.2. She testified that all the candidates shortlisted possessed a three (3) or four (4) years degree or Diploma. She testified that the Applicant’s application was checked against the requirements on the advert, she continued to explain that the Applicant had an ICT certificate in Education Implementation.
   5.3. She denied that all the qualifications were verified, only the applicants’ qualifications had to be taken through that process because they wanted to make sure that their understanding of the Applicant’s certificate was confirmed and indeed it was confirmed to be a six (6) months course.
6. The First Witness for the Respondent
   SABELO PLAATJIE (The Acting Deputy Principal Corporate Services)
   6.1. He testified under oath and stated that pages 12 to 14 are an advert for the Campus Manager posts that were vacant. He testified that the process was long, and the College was happy to finally have 2 successful candidates in the name of Shibane and Mbonisweni.
   6.2. He testified that both the incumbents were qualified for the posts.
   6.3. He added that when a candidate has a B A degree, the degree becomes educational once the individual includes education in his training.
   6.4. He testified that the B ed degree is not the only professional teacher’s qualification. He continued to make examples including Higher certificate in education, Advanced Certificate in Education, Post Grad, Diploma in Education, Advanced Diploma in Education, Bachelors
   6.5. He testified that if you get a SACE certificate it means you have met the qualifications and if you are not qualified you get a provisional certificate whilst you work towards obtaining your qualification.
   6.6. He denied that the Applicant has a professional Teachers qualification and stated that all certificates have a minimum of 1 year with a minimum credit of 120 credits, he stated that the Applicant’s certificate does not have 12 months or 120 credits.
   6.7. He testified that page 16 is a response of their enquiry with the South African qualification Authority, this is an organisation which authorises qualifications, they confirm if the qualification meets the requirements. He testified that for a diploma you should have at least 360 credits, for a degree you should have at least 480 credits. He reiterated that the Applicant was not shortlisted because he failed to meet the minimum requirements
   6.8. He testified that pages 24 to 29 are certificates belonging to Shibane has a Secondary Teachers Diploma, Diploma in Education, (this qualifies her on its own) Bachelor of Tech in Education, B Tech, Master’s degree in education and her SACE certificate. He stated that this person met the minimum requirements.
   6.9. Pages 21 to 23 are certificates belonging to Noxolo Mbonisweni, she has Bachelor of Arts in Music education, Bachelor of Arts Honours, SACE certificate. He confirmed that Mbonisweni also met the Minimum requirements for the advertised positions.
   6.10. He denied that they acted arbitrarily in appointing the two incumbents. He denied further that the Applicant was discriminated against, the Respondent had no reason to discriminate against the Applicant.
   6.11. Under cross examination the witness confirmed that Mbonisweni’s BA in Music Education is equivalent to Professional Qualification in Education.
7. The Second Witness for the Respondent
   NOXOLO MBONISWENI: (The Campus Manager for Smith Campus – CJC)
   7.1. She testified under oath and stated that: She joined the Department of Higher Education in 2001 as a Lecturer, she was appointed permanently after two (2) years later. In 2008 she was promoted to HOD in Music. In 2011 she was appointed Site manager at the campus where she was. In 2019 she acted in the Campus Manager position for 2 years, in 2022 the Campus Manager took his retirement, and she has been acting in that position until her appointment in 2024.
   7.2. She testified that in March 2023 she responded to an advertised post.
   7.3. She testified that she has a Senior Certificate obtained in 1989.
   7.4. Bachelor of Arts in Music Education four (4) year degree. She specialized in Music and majored in education. She testified that she did Education 1,2, and 3 comprising of Education Psychology, Classroom Management, and Teaching Methodology. Those modules are done in any qualification in education.
   7.5. She further did Teaching Practice, went to schools did teaching lessons and this is a requirement within the four (4) years of study.
   7.6. She testified that her degree meets the requirement. She is also registered with SACE because she is qualified to be a teacher.
8. ANALYSIS OF EVIDENCE

8.1. In Noonan v Safety and Sectorial Bargaining Council and Others [2012] 33 ILJ 2597 (LAC) it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labor practice. If the employee is not denied the opportunity of competing for a post then the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason. If the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.
8.2. It is trite that the employee bears an onus to prove an unfair labour practice as defined in section 186(2) of the Labour relations Act (the LRA) was committed by the Respondent. The Applicant has to convince the arbitrator that the conduct of the respondent amounted to an unfair labour practice as defined and distilled from the applicable jurisprudence and as envisaged in the law.
8.3. Section 186(2)(a) of the LRA reads as follows: Unfair labour practice any unfair act or that omission arises between an employer and the employee involving, unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about unfair dismissal for reasons relating to probation) or training of an employee or relating to the provision of benefits to an employee.
8.4. I am required to determine whether the First Respondent acted arbitrarily or unfairly or not in excluding the Applicant from the shortlisting.
8.5. In the present matter the Applicant applied for the position of Campus Manager which required a Senior Certificate / Grade 12/ plus a recognised three (3) or four (4) year qualification (Degree or Diploma) which includes professional teacher qualification. A minimum of seven (7) years working experience in the TVET sector education institution of which at-least three (3) years should be at a Managerial level. Must be registered with SACE, Computer literacy (MS Word, Excel, Power-point, Access to Outlook) and must also be in possession of an unendorsed valid driver’s licence.
8.6. On the side of the Applicant two witnesses were called. The first witness being the Applicant who argued that he is qualified for the post as per the advertisement. In his evidence he stated that the ICT Certificate is equivalent to the required three- or four-year Professional Education Qualification.
8.7. He argued that the two incumbents were not qualified, that they did not possess the B, ed degree which he was informed they did. The Applicant failed to clearly and concisely state material facts to disprove the Respondent’s evidence that the incumbents were in fact qualified save for the bare denial.
8.8. The second witness Thembi Mashele testified that all the candidates shortlisted possessed a three (3) or four (4) years degree or Diploma. She testified that the Applicant’s application was checked against the requirements on the advert, she continued to explain that the Applicant had an ICT certificate in Education Implementation, and this did not qualify him to meet the minimum qualification.
8.9. The Respondent demonstrated through its witness Mr Plaatje that the Second Respondent Ms Shibane has a Secondary Teachers Diploma, Diploma in Education, (this qualifies her on its own) Bachelor of Tech in Education, B Tech, Master’s degree in education and her SACE certificate. He stated that this person met the minimum requirements. And that Noxolo Mbonisweni, she has Bachelor of Arts in Music education, Bachelor of Arts Honours, SACE certificate. He confirmed that Mbonisweni also met the Minimum requirements for the advertised positions.
8.10. In the matter of Aries v CCMA and others (2006) 27 ILJ 2324 (LC) our Labour Court held that there are indeed limited grounds upon 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 be curtailed. It ought to be interfered with only to the extent that it can be further demonstrated that the discretion was not properly exercised. The court further held that an employee can only succeed in having the exercise of the discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for unsubstantial reasons, or based upon any wrong principle, or in a biased manner.
8.11. In this case I am satisfied that at the time the Applicant was not better qualified than the Second Respondent or the Third Respondent.
8.12. As a legal concept unfairness cannot exist in abstraction. Therefore, an applicant in the promotion dispute also needs to establish a causal connection between the alleged irregularity or unfairness and the failure to promote. To do so he needs to show that, but for the irregularity or unfairness he would have been appointed to the post. This necessarily means that he must show that he was the best of all the candidates who applied for the position.
8.13. Whether an employee also needs to prove that he was the best candidate for an arbitrator to order that the process must be repeated its unclear. In KwaDukuza Municipality vs. SALGBC where a post was filled without following the collectively agreed procedures for advertising, the Court did not order the process to be repeated but merely ordered R5000 compensation. The possibility of repeating the process was however never raised.
8.14. In the absence of any direct Labour Court authority on the point, I am however prepared to accept that in the event of a serious procedural irregularity, it is indeed possible for the arbitrator to order that the process must be repeated without it being necessary for the Applicant to show that he is indeed the best candidate or that he would necessarily have been appointed had it not been for the irregularity. This however does not mean that such orders should be made indiscriminately simply because there was some form of procedural irregularity.
8.15. The Applicant failed to demonstrate that he was the best candidate of all the candidates who were shortlisted. The only certificate spoken of was his ICT certificate in education implementation, yet both the incumbents had degrees in Education
8.16. Ordering that the process must be repeated is a drastic remedy that disrupts the lives of the learners and educators. It is therefore my view that in an unfair labour practice dispute relating to promotion, an arbitrator must order that the process must be repeated unless persuaded that the Applicant stood a realistic chance of being appointed. This is a sensible approach because it not only protects the rights and interests of the aggrieved educator, but also the educators who have gone through the selection process and have a realistic chance of being appointed.
8.17. It is trite law that the courts will only interfere with the employer’s decision if it is grossly unreasonable.
8.18. Therefore, I do not believe that there are any justifiable reasons to interfere with the decision to appoint Ms Patience Shibane and Ms Noxolo Mbonisweni
8.19. I accordingly make the following award

9. AWARD

9.1 The First Respondent, Central JHB TVET College did not committed an unfair labour practice relating to promotion in terms of section 186(2)(a) of the Labour Relations Act 66 of 1995 when it failed to shortlist the Applicant, Tendani Nemathaga for an interview to a post of (Campus Manager).

9.1. The appointment of Ms Patience Shibane and Noxolo Mbonisweni to the positions of Campus Manager is confirmed.

GCINA MAFANI
Arbitrator 20 January 2025
ELRC526-24/25GP