Commissioner: VEESLA SONI
Date of Award: 23 MAY 2024
In the ARBITRATION between:
NAPTOSA OBO J H MAHARAJ APPLICANT
and
DEPARTMENT OF EDUCATION – KWAZULU NATAL 1ST RESPONDENT
LOGAN GOVENDER 2ND RESPONDENT
Union/Applicant’s representative: Mr Rishal Juguth
NAPTOSA
1st Respondent’s representative: Mr Imtumuleng Makhooe
1st Respondent Department of Education
2nd Respondent : Logan Govender
2nd Respondent representative SADTU : Nolan Pillay/ Bheki Khumalo
DETAILS OF HEARING AND REPRESENTATION
1. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as the “ELRC”) in terms of Section 186 (2) of the Labour Relations Act, No. 66 of 1995 (hereinafter referred to as “The Act”). The matter was scheduled for arbitration on 31 January, via zoom. The matter was part heard and was finalized on 3 May 2024.
2. The Applicant, Mr Maharaj was represented by NAPTOSA, Mr Rishal Juguth. The 1st Respondent was represented by Mr I Makhooe. The Appointee, Logan Govender , 2nd Respondent, was represented by SADTU, Nolan Pillay.
ISSUE TO BE DECIDED
3. The issue in dispute was whether the Respondent committed an unfair labour practice, in respect of promotion, when they failed to appoint the Applicant and appointed Mr Logan Govender.
BACKGROUND AND SURVEY OF EVIDENCE
4. The dispute relates to Post 198 as advertised in HRM 5 of 2022 at Trenance Manor Secondary School. The post was for a deputy principal position and both the Applicant and the 2nd Respondent were candidates to the post.
5. It was agreed that the Applicant had 36 years of service with the Department of Education and joined the school in July of 1994.
6. The Second Respondent had 14 years of teaching experience with the Department of Education and joined the school on 1 November 2017.
7. Applicant was appointed as Departmental Head – Humanities in 2021 and acted as Deputy Principal since January 2022 to September 2022. The appointee was a PL 1 Educator from Trenance Manor Secondary and served as acting Departmental Head for Maths and Science from July 2021 until end of 2021.
8. Both the Applicant and appointee were shortlisted and the appointment was made on 12 September 2022.
9. The selection process was conducted by the Interview Committee (hereinafter referred to as the (“IC”) of the of the School Governing Body (SGB). SADTU was represented at the interview process in an observer status. CTU-ATU was invited but were not present at either shortlisting or the interview process.
10. The facts that were in dispute are as follows:
• The Applicant claimed that he was the most suitable candidate for the position.
• Whether the 2nd Respondent fulfilled all the duties of the Skills Departmental Head from January 2022 until September 2022.
• Whether the 2nd Respondent fulfilled all the duties of the Maths and Science Departmental Head from July 2021 until January 2022.
11. It was agreed between the parties that the issue/s to be decided are:
• Whether the Applicant was the best candidate for the position.
• Whether the Applicant was better than all the other candidates who applied for the post and whether the Department committed an unfair labour practice by not appointing him.
• Whether the appointment of the 2nd Respondent was irregular and unfair.
12. The Applicant’s case was that he was the most suitable candidate and asked that the appointment of the 2nd Respondent be set aside and that the process be redone from the shortlisting stage.
13. The Respondent’s case was that the appointment was fair and that the application be dismissed.
APPLICANT’S CASE
14. Jashwin Heeramun Maharaj testified that he had a senior primary education diploma, higher education diploma and a sports management diploma. He started teaching in 1986. He was at Trenance Manor and started in 1994. He was at a post level 2, department head and was in the post for about a year at the time of the dispute. He fulfilled all the duties of a departmental head from 2002 but could only apply for it in 2021. There were four internal candidates that applied for post 198: deputy principal, namely the Applicant, L Govender, R Debba and A Haripersad. Three candidates were at level 2 and the 2nd Respondent was at level 1. He was the acting deputy principal at the time.
15. The Applicant, in his role as departmental head and acting deputy principal was involved in leadership skills. From 2002 he was involved in mentoring, organizing and assisted teachers. He believed that he should have been appointed as he had the skills and leadership duties. He acted in the post and was a departmental head. He confirmed that his experience and qualifications as per his curriculum vitae (CV) were all correct.
16. He said this was not the case for the 2nd Respondent, who was appointed to the post. He stated that the 2nd Respondent misrepresented his duties in his CV in that he stated he was actively involved in fundraising. This was untrue as he was not involved in fundraising. He also did not create and develop any policies. He was not part of the time table committee as this was undertaken by the departmental heads. He disputed the 2nd Respondent was the coordinator of the Debs Ball. The declaration by the 2nd Respondent that the contents of his CV was true and correct was misleading. Had the correct information been recorded the 2nd Respondent would not have been shortlisted and interviewed.
17. The Applicant stated that the incumbent Debba scored the highest, and he came 2nd whist the 2nd Respondent ranked fourth. At the interview stage the Applicant ranked second with scoring of 40, and the 2nd Respondent ranked first with scoring of 41.66.
18. He stated that he was the better candidate and would have ranked number 1 if the 2nd Respondent was not shortlisted. He asked that the process be set aside and be redone from the stage of shortlisting.
19. D Ramnarain: was the principal of Trenance Manor Secondary for the last three years. Prior to that he was the acting principal. He said the Applicant was appointed in a management position as departmental Head from the end of 2021 to date. Prior to his actual appointment he acted as a departmental head for about 10 years. The 2nd Respondent did not have the same management experience as he acted as the departmental head for under a year. The 2nd Respondent acted in the skills department up until his appointment.
20. He was the resource person for the appointment in the post. He explained that the names were not disclosed but the CV’s were presented. The SADTU union member was present and no there was no representation by NAPTOSA.
21. During the process the SADTU representative raised an objection on the basis that CV 3 was scored inappropriately and less than CV 1 and 2. Ramnarain as the resource person guided him. SADTU wanted CV 3 to be scored higher and left the process. The chairperson of the committee indicated to the SADTU representative that the issues be raised in the appropriate forum. He said CV 3 was that of the 2nd Respondent. The SADTU representative was informed to return to the shortlisting process, which he did, and they continued.
RESPONDENT’S CASE
22. The 1st Respondent closed their case without calling any witnesses.
23. The 2nd Respondent called one witness: Mrs K S Moideen: who was on the SGB for Trenance Manor from 2014 to 2023, in the capacity as treasurer, vice chair and chairperson. She was part of the HRM processes for six promotional posts and received the necessary training. She was part of the scoring committee in the last five years for the current principal, current deputy principal and departmental heads. She confirmed that SADTU was present for the current dispute. She explained that the SADTU representative had one concern being that one CV was scored low, but the issue was resolved.
24. The names of the candidates were not revealed during the reading of the CV’s. The SADTU representative queried the scores for some of the CV’s and clarified if they were comfortable with their score. Once this was affirmed the process continued. She declared that according to her knowledge there was no bias on the part of the union representative. The representative left for part of the proceedings and when he returned the atmosphere was more comfortable and amicable.
25. She categorically stated that she was not pressured by the union representative to raise or reduce the score for any CV.
26. She explained that an acting departmental head was a person who performed the duties of a HOD. This did not equate to the incumbent actually being in the position of a HOD, but rather performed the duties of a HOD. She explained that if an incumbent initially stated that they were an acting departmental head and later referred to themselves as an HOD, it was not misleading or untruthful. The resource person was present to address any such concerns. She said the process did not have any issues and proceeded smoothly. The shortlisting process was fair.
27. At the interview process the SADTU representative, Pravesh Singh, was present, and it was not the same person as the shortlisting process. Even at that stage the union member was not biased nor was she asked to raise the score of the 2nd Respondent. The union was not bias but was also not favorable to the 2nd Respondent. The interview process was declared free and fair.
28. There was no objection to the 2nd Respondent being recommended by the ratification committee. She stated that the 2nd Respondent was the right incumbent for the post as he was a visionary and that was a positive criterion.
CLOSING ARGUMENTS
29. It was agreed that all parties submit closing arguments by 7 May 2024, which was done. For the sake of brevity, I have not summarized their closing arguments as it is part of the record. I have analyzed their argument and evidence hereunder.
ANALYSIS OF EVIDENCE
30. The matter was referred as an unfair Labour Practice: In terms of section 186 (2) (a) of the Labour Relations Act:
‘ unfair labour practice means any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relation 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.’
31. In the case of Buffalo City Public Fet College / Commission For Conciliation, Mediation And Arbitration, Labour Court Port Elizabeth, Case Number: P372/12, the court found in unfair labour practice disputes, particularly in those relating to promotions, the onus is on the Employee to prove that he / she is a suitable and better candidate for the position. The Applicant herein therefore bore the onus to establish that the Respondent committed an unfair labour practice.
32. The test to be adopted in promotion disputes are set out hereunder. In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others (2013) 34 ILJ 1156 (LC), the municipality failed to promote one M to an advertised post in which he had been acting for five years. M met all the requirements for the post but was not short listed for an interview because he had failed an assessment test. Nobody was appointed to the post and M continued to act in the post. The arbitrator found that it constituted an unfair labour practice not to have promoted M and ordered the municipality to promote him. On review it was argued that there was no evidence that the municipality acted in breach of its own policies or that it acted bad faith, with an improper motive, malice or grossly unreasonably. It further argued by reference to SAPS v Safety & Security Sectoral Bargaining Council & others (2010) 31 ILJ 2711 (LC), [2010] 8 BLLR 892 (LC) that it is not the place of an arbitrator to instruct an employer to promote a candidate into a position.
33. In confirming the arbitrator’s award the Review Court re-evaluated the approach followed in a number of earlier judgments including Arries v CCMA & others (2006) 27 ILJ 2324 (LC) a decision which had been followed in a number of arbitration awards. Promotional disputes are therefore to be assessed against the following factors referred to in Arries:
• whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the employer or
• whether the employer’s decision was arbitrary, or capricious, or unfair; or
• whether the employer failed to apply its mind to the promotion of the employee; or
• whether the employer’s decision not to promote was motivated by bad faith;
• whether the employer’s decision not to promote it 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.
34. It is now confirmed in the case below that the overall test is one of fairness, Gcaba v Minister for Safety & Security & others (2010) 31 ILJ 296 (CC):
“The wholesale adoption of review tests, and notions of ‘setting aside’ an employer’s decision and sending it back to the employer for decision anew, thus appears misplaced. Rather the yardstick of fairness to both parties…is in fact apposite. This does not mean that when a selection process is unreasonable, it should not be identified as such, but that such irrationality goes to the issue of fairness. The clear wording of s 186 (2) of the LRA supports such an approach…
In this matter the fairness yardstick… has been used by the commissioner. He has found that in a situation where the applicant’s post (In which he had been acting for five years) remained vacant after his non-appointment, and where the city did not proffer any rationale for the pass mark in respect of the written assignment, nor explain the method of allocation of marks, it had been unfair not to appoint him.”
35. In applying the tests laid out in the above cases I now assess the evidence of the current matter to determine whether the decision of the employer measured the fairness yardstick. At the outset I find it prudent to note that the 1st Respondent closed their case without calling any witnesses. In this regard it was submitted that the Applicant bore the onus and he failed to discharge same. It is entirely within a party’s prerogative to call witnesses, and the fact that the 1st Respondent elected not to do so, does not draw a negative inference. It was their version that it was unnecessary to burden the proceedings and call witnesses, when they argued that the Applicant failed to establish that he was the most suitable candidate and further failed to demonstrate that the Respondent acted unfairly, capriciously or with bias.
36. It is necessary to assess the evidence of the Applicant. He was a sound witness but made unsubstantiated allegations, which I will touch on hereunder. He was a level 2 educator and stated that the 2nd Respondent was at level one, and was appointed to the post of deputy principal. I noted that he (2nd Respondent) acted as a deputy principal for 9 months at the time of the appointment.
37. The Applicant was aggrieved as he performed the administrative duties of the school coupled with his regular workload. He was an acting deputy principal and was a departmental head. His leadership roles went as far back as 2002. His dispute rests on the fact that he believed that he had far more experience and performed far more duties, compared to the 2nd Respondent. As much as I accept that he was a good candidate, an applicant in a promotion dispute, must prove that he was the best of all the candidates who applied for the job, or prove that the conduct that denied him a fair opportunity to compete for a post was arbitrary or motivated by an unacceptable reason, or that the successful candidate was dishonest and misled the interview panel or employer. The arbitration of a promotion dispute does not entail a hearing de novo, but a review of the employer’s decision. In applying the Sidumo test to promotion disputes, 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.
38. In this instance it is incumbent upon me, as the commissioner to make a determination as to whether the conduct of the 1st Respondent, in appointing the 2nd Respondent, was justified. In SAPS v SSSBC [2010] 8 BLLR 892 (LC); Provincial Administration Western Cape (Department of Health& Social Services) v Bikwani & others (2002) 23 ILJ 761 (LC) at paragraph [29]–[32], it was laid out that the decision to promote or not to promote falls within the managerial prerogative of the employer. In the absence of gross unreasonableness or bad faith or where the decision relating to promotion is seriously flawed, an arbitrator should not readily interfere with the exercise of the discretion. The Applicant in the matter before me stated that the 2nd Respondent misrepresented his duties in his CV. The Applicant disputed the duties listed by the 2nd Respondent. He said that 2nd Respondent stated he was actively involved in fundraising, which was untrue. This was challenged under cross examination wherein the Applicant conceded that the 2nd Respondent participated in a golf day and attended to class collections. This was aimed at raising funds. I therefore reject the assertion that the 2nd Respondent was not involved in fund raising.
39. The Applicant stated that the 2nd Respondent also did not create and develop any policies. He then stated that the 2nd Respondent adapted a policy, which was in contradiction of his initial statement. I find that the Applicant made bond allegations which he could not substantiate. He retracted and corrected himself under cross examination. In this regard his credibility became questionable.
40. The Applicant contended that the 2nd Respondent was also not part of the time table committee as this was undertaken by the departmental heads. This was refuted as evidence was produced where the 2nd Respondent played a role in it.
41. It was challenged that the 2nd Respondent was not a coordinator for the Debs Ball nor was he the coordinator for soccer and volley ball events. The Applicant said that he, on the other hand, was actively involved in both. Under cross examination it was established that the 2nd Respondent played an organisational role in the Debbs Ball. This was not refuted. The Applicant’s only response was that a participant to a committee did not equate to an organiser. I find this response feeble. I am satisfied that the 2nd Respondent was indeed involved in the Debbs Ball and Volley Ball activities. I find that the examples mentioned by the Applicant were not aspects that created dishonesty or misleading information.
42. The Applicant stated that the 2nd Respondent misrepresented that he was an HOD, as page 24 of the bundle indicated that he was an “acting HOD”. The Applicant became argumentative during cross examination and referred to a paragraph wherein the 2nd Respondent referred to himself as an HOD, which was part of his HER 7. This was an explanatory note to his duties and not to exhibit his role. I am not convinced that any other notations referring to him as an HOD, was deceiving. He was candid and clear from the outset that he was only acting. In this regard I turn to the testimony of Moideen who explained that an acting departmental head was a person who performed the duties of an HOD. This did not equate to the incumbent actually in the position of an HOD. She went on to state that if an incumbent initially stated that they were an acting departmental head and later referred to themselves as an HOD, it was not misleading. In this regard both the Applicant and the 2nd Respondent had the necessary experience. I have also considered that the resource person was present and did not raise any issues with the process.
43. I refer to University of Venda v Maluleke & Others (JR2125/2013) [2017] ZALCJHB (28 February 2017) The Court then highlighted the precedents which confirm that :
‘the complete lack of credibility findings by the [commissioner] is material failure on his part and constitutes an irregularity’, as one of a ‘commissioners prime functions’ is to ‘ascertain the truth as to the conflicting versions before him. The Commissioner was obliged at least to make an attempt to assess the credibility of each of the witnesses and to make some observation on their demeanour. He ought to have considered the prospects of any partiality, prejudice or self- interest on their part, and determine the credit to be given to the testimony of each witness by reason of its inherent probability or improbability.
44. In this instance the Applicant claimed that the 1st Respondent committed an unfair labour practice and attempted to persuade me into believing that it was done arbitrarily with male fides. This was dispelled under cross examination wherein he retracted his evidence in respect of time tables, and duties. In this regard the credibility of the Applicant was concerning and it affected the probability of his evidence. As such, I refer to the testimony of Ramnarian, who was called as a witness for the Applicant, and confirmed that he appended his signature to the form confirming that the 2nd Respondent met all the requirements and all the details on the form was correct.
45. Ramnarian confirmed that here were no objections at the interview committee. The recommendation of the 2nd Respondent was accepted by the ratification committee. There were no objections by the SGB. There were no objections by any other person aside from the Applicant. It was declared to be free and fair.
46. Experience: The Applicant contended that his experience outweighed the 2nd Respondent and based on this he should have been appointed. He said he did majority of the work unlike the 2nd Respondent. He had 14 years’ experience as an acting HOD and the 2nd Respondent only acted as a departmental head/HOD for three months. This was rebutted under cross examination whereby the Applicant conceded that he erred as there was evidence to substantiate that he was in such a position for a year.
47. I accept that the experience of the Applicant outweighed that of the 2nd Respondent in respect of acting HOD. A candidate with more experience cannot have the expectation of appointment or promotion. An array of factors was and must be considered in making the appointment. It is thus necessary to refer to the evidence of Moideen, once again. She pointed out that there was no objection to the 2nd Respondent being recommended by the ratification committee. She specifically stated that the 2nd Respondent was the right incumbent for the post who had a visionary for the school. This is what rendered him to be the preferred candidate.
48. An employee who refers a promotion dispute must do more than just demonstrate that he has the minimum advertised qualifications and experience. He must allege and prove that the decision not to appoint him was unfair. There was no doubt that the Applicant demonstrated unhappiness and his perception of unfairness but that did not establish unfair conduct. Moideen who was an SGB member for Trenance Manor from 2014 to 2023 (and part of the HRM processes for six promotional posts) confirmed that SADTU’s concern was the one CV that was scored low. The issue was resolved as it is common cause that the names of the candidates were not revealed during the reading of the CV’s. Clearly a specific person was not favoured as the names were not divulged.
49. Moideen elaborated that the SADTU representative queried the scores for some CV’s and but it was in the context of clarification rather than an objection. She stated specifically there was no bias on the part of the union representative. I accept that the SADTU representative left for part of the proceedings but upon his return the atmosphere was more comfortable. I am satisfied by her evidence in that she remained consistent and confirmed that she was not pressured by the union representative to raise or reduce the score for any CV. At the interview process the SADTU representative, Pravesh Singh, was present and even at that stage the union member was not biased. Moideen refuted that at any stage of the process she was asked to raise the score of the 2nd Respondent.
50. I now turn to the ranking of the candidates. During the shortlisting Debb scored the highest and ranked first. The Applicant in 2nd and the 2nd Respondent 4th. The 2nd Respondent scored 5 points less than the Applicant but was recommended as the first candidate. At the interview the 2nd Respondent scored 41.66 and the Applicant scored 40. This demonstrated that the 2nd Respondent was the better candidate and thus appointed.
FINDING
51. I find that the Applicant was unable to prove that he was the best of all the candidates who applied for the job. He was unable to demonstrate that there was conduct that denied him a fair opportunity to compete for a post, or conduct that was arbitrary or motivated by an unacceptable reason. I was also not convinced that the 2nd Respondent was dishonest and misled the interview panel or employer. The role of the arbitrator is to oversee that the employer did not act unfairly towards the candidate that was not promoted.
52. It is generally accepted that the manner in which candidates perform during interviews and other subjective impressions may be taken into consideration when making an appointment. There may be reasons for preferring one employee to another apart from formal qualifications and experience. Moideen stated that the 2nd Respondent had vision, and this was preferred over the Applicant. I can make no finding that the 1st Respondent acted in breach of its own policies or that it acted bad faith, with an improper motive, malice or grossly unreasonably.
Award
I make the following award:
53.The application is dismissed
ELRC Commissioner : VEESLA SONI
Date : 23 MAY 2024