IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN KOMANI
IN THE ARBITRATION
BETWEEN
NAPTOSA obo MBONO THUMEKA APPLICANT
AND
DEPARTMENT OF EDUCATION – EC 1ST RESPONDENT
SADTU obo XUBA MKHANYISI 2ND RESPONDENT

ARBITRATION AWARD

DATE/S OF HEARING 27/02/2024, 20-21/05/2024 & 08-09/07/2024
DATE AWARD SUBMITTED 24/07/2024
NAME OF PANELIST SIZIWE GCAYI

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter was set down for arbitration in terms of section 191(5) of the Labour Relations Act 66 of 1995 (LRA) at the Department of Education offices in Komani on 27/02/2024, 20-21/05/2024 and 08-09/07/2024 at 09h00. Mr Aaron Mhlontlo an official from NAPTOSA represented the Applicant [Thumeka Mbono]. Mr Thobelani Mlahleni an official, represented the first Respondent, (Department of Education Eastern-Cape). Mr Siyabonga Gashi an official from SADTU represented the second Respondent, [Mkhanyisi Xuba].

2. The proceedings were electronically recorded and manually recorded. The parties handed in bundle of documents in support of their cases. The Applicants bundle was named bundle A, Respondent No1’s bundle named bundle B. The parties were given up until 22nd July 2024 to file their closing arguments with the Council.

ISSUES TO BE DECIDED

3. I am required to determine whether an unfair labour practice relating to promotion was committed by the 1st Respondent. Further, depending on my finding, l am required to determine the appropriate relief.

BACKGROUND OF THE DISPUTE
4. This is a promotion dispute involving post no 182- volume 1 of 2023 being the principal post for Lady Frere Full Service School.

5. After the post was advertised, the Applicant, the second Respondent and other candidates applied for the post. The second Respondent was appointed as the School principal at Lady Frere Full Service School.

6. The Applicant alleged that the application form of the 2nd Respondent was incomplete. It had defects. The 2nd Respondent did not attach his CV in his application for post no 182/1/2023. 1st Respondent was bias towards the 2nd Respondent. The relief sought by the Applicant, that the appointment of 2nd Respondent be reviewed and set-aside. The post be advertised again.

SURVEY OF EVIDENCE
Employee’s case
7. The Applicant testified herself and called no other witness in support of her case. In summary, the Applicant testified as follows: She was an educator, holding a position of school principal at Nonesi Senior Primary School, P2 principal. She also testified about her qualifications and work experience. She applied for the post of school principal at Lady Frere Full Service School [LFFSS] on two occasions when the post was advertised. It meant promotion to her. It was P3 compared to her current school [P2]. On the 1st occasion she was shortlisted, attended interviews. She was placed no 2. Nobaza was placed no 1. The 2nd Respondent was placed no 4. She communicated her dissatisfaction with her previous trade union with no success, however the post was re-advertised. She applied again but not shortlisted on the 2nd occasion. A dispute was declared with the Council as result on non-shortlisting whilst meeting the requirements as per the advert. Bundle A Pg 36 para B.5.3.1 [Sifting] read on record. It was her evidence that she did not receive any communication from the 1ST Respondent about her application. She also testified about the role of the resource person. Bundle A pg 40,41,48 & 49 read on record. Page 48 application form of 2nd Respondent, page 49 para 17,2 & 17,3 application form not completed fully. Page 56 & 57 qualifications of the 2nd Respondent. It was her evidence that the 2nd Respondent did not possess management qualification. She also stated that 2nd Respondent on his application form made no mention of post level 1 on his work experience, it was impossible for an educator not to start as a post level 1 educator [page 50 para 21].

8. She further mentioned that the people who looked at her application form did not pay attention. She had no other work experience except the one she provided. To disqualify her application on the basis that she scratched out, paragraphs that were not relevant to her, was unfair. Page 86-87 were read on record, application of the Applicant. It was her evidence that she attached academic record on her application. She also mentioned that the 1st Respondent was biased towards her.

Respondent’s Case
The first Respondent.
9. The first Respondent called two witnesses. Ms Nocawe Ndidi ( “Ndidi”) testified as follows: She was employed by the 1st Respondent, holding a position of circuit manager at Cacadu, Chris Hani district. She also testified about her duties as the circuit manager. It was her evidence that the 2nd Respondent was known to her. He was responsible for the LFFSS. During the recruitment process of LFFSS, she was involved as the resource person, she trained the School governing body [SGB], Interviewing Committee [IC]. Dates for shortlisting and interviews were communicated. She also mentioned that she received the application forms from the HR. Some application forms were sifted out, others not. She handed over the application forms to the chairperson. She explained the shortlisting process to the panel. The panel developed criteria in line with the requirements as per the bulletin. The criteria that was developed included: completeness of the application form, CV, SACE, ID, Manager-qualification added advantage. It was her evidence that the Applicant was disqualified because her application form was incomplete or not completed fully. Other work experience not included, IC disqualified her application. The IC expected a candidate to draw a line or n/a on a column, not to just leave it blank. Decision of the IC was a correct decision. The trade unions played no active role. She only guided the process. It was incorrect that 2nd Respondent was appointed because of MEC. 2ND Respondent had no management qualification, however he had practical management experience. She also mentioned that the IC was well trained.

10. Mr Zali Simon Majova [ “ Majova”] summary of his testimony. He testified as follows: He was the chairperson of the SGB. In the recruitment process of the principal post of LFFSS he was involved. They first attended workshop. He was part of the shortlisting panel and IC. During shortlisting, the resource person and trade union officials were present. A criteria was developed, it entailed: completed application form, SACE, ID, CV, Management- practical added advantage. The criteria was in line with the bulletin. The chairperson of the IC was Mr Andile Kondile .They received the applications of the candidates from the resource person. They were 19. Two applications were sifted out. They first looked at the sifted applications, reasons provided for sifting out the application of the Applicant was the issue of the transcript. They returned back the application because transcript was not a requirement. Out of 19 applications only 5 were fully completed fully. The application form of the Applicant was not fully completed. The application of the 2nd Respondent was fully completed. It was incorrect that the trade unions and resource person played an active role during the process of shortlisting. It was his evidence that the parents wanted a school principal, the MEC was not involved. It was incorrect that the 2nd Respondent was appointed without management qualification. He had practical experience.
The Second Respondent

11. The second Respondent closed its case without calling any witness.

ANALYSIS OF EVIDENCE AND ARGUMENT
12. 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 (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 applicable jurisprudence and as envisaged in the law.

13. I have considered the departmental guidelines for sifting, shortlisting, interview procedures.

14. I have also considered the recruitment and selection policy for the department of Education-Eastern-cape.

15. I have also considered, the advert in question, Open post bulletin for principals’ volume 1 of 2023. I have also considered the Employment of Educators Act 76 of 1998, Revised PAM document.

16. 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 dismissals for a reason relating to probation) or training of an employee relating to the provision of benefits to an employee”.

17. I have to decide whether the 1st Respondent acted fairly or not in not shortlisting the Applicant for the position of the school principal at Lady Frere Full Service School.

18. It is common cause that the Applicant currently holds the position of school principal at Nonesi Senior Primary School.

19. In JELE v PREMIER OF THE PROVINCE OF KZN & OTHERS [2003] ILJ 13 [LC] It was stated in deciding whether the dispute involves the promotion, one has to compare the employees current job with the job or post applied for, to determine whether a promotion is involved. Some of the factors to be taken into account are: difference in remuneration, fringe benefits, status, levels of responsibilities, of authority and job security.

20. The Applicant testified that she was a P2 school principal at Nonesi SPS. The post in question for Lady Frere Full Service School is P3. Therefore, there is difference in remuneration levels. The dispute before the Council involves promotion.

21. It is important to note that there is no right to promotion however there is a right to be given a fair opportunity.

22. In NOONAN v SSSBC & OTHERS [2012] 33 ILJ 2597 [LAC], “the Court held that there was 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 constitute an unfair labour practice. If the employee is not denied the opportunity of competing for a post, then the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by unacceptable reason”.

23. In MONYAKENI v SSSBC & OTHERS [JA 64/13] [2015] ZALAC 17 , the Court stated that there are two components to a complaint regarding a failure to promote, an employee as an unfair labour practice. The one relates to the procedure followed by the employer, the other relates to the substantive merits and it concerns the suitability of the candidate for promotion to the post in question.” The conduct of the employer may be substantively and / or procedural unfair. Substantive unfairness relates to the reason for not promoting the employee, whereas procedural unfairness relates to an unfair process applied by an employer during the course of the recruitment and selection process. [ ELRC Collective Agreement 3 of 2016].

24. In the current matter before the Council, the Applicant was not shortlisted. The Applicant alleges that the 1st Respondent committed unfair labour practice in appointing the 2nd Respondent. The application form of the 2nd Respondent did not meet the requirements of the advertisement in terms of paragraph B. Application form of the 2nd Respondent did not have a detailed CV as required by the advertisement.

25. Did the application form of the 2nd Respondent contain a detailed CV or meet requirements of paragraph B page 17 of bundle A? Province of the Eastern Cape, Department of Education, open post bulletin for principals’ volume 1 of 2023, page 2 of 12 paragraph B provides “Application Forms are to be accompanied by all relevant documentation. Recommended list [ Completed EDP 01 application form and a detailed CV, Certified copy of the South African Identity document, Certified copies of all academic qualifications, which must include appropriate training as educator, Certified copy of membership certificate with SACE or proof of application for registration.] On both bundle of documents from the Applicant and 1st Respondent, detailed CV of the 2nd Respondent was not attached. There were two pages, cover page and the page for references [ bundle A pg 52 & 53 ]. Bundle B pg 7 & 8. Interestingly for all other shortlisted candidates their detailed CV’s were attached. The application form of the Applicant also had a detailed CV. In a nutshell the application form of the 2nd Respondent did not satisfy the requirements of the advertisement paragraph B.

26. In NATIONAL COMMISSIONER OF THE SAPS v SSSBC & OTHERS (2005) 8 BLLR 808 (LC) the Court held that the successful candidate be joined together with the Employer as party to the proceedings, if the relief sought will affect the successful candidate’’. In the current matter the successful candidate – Xuba was joined. He was present all throughout the proceedings. He was represented by Mr Gashi.

27. In GORDON v DEPARTMENT OF HEALTH – KWAZULU NATAL (2008) (29) ILJ 2535 (SCA) the Court held that “ a third party that is to be joined must have direct and substantial interest in subject matter of litigation. The test is whether the third party maybe affected prejudicially by the judgement or order of Court. The appointee would only have a legal interest in the proceedings where the decision to appoint him is sought to be set-aside”. As stated above Xuba was present all throughout the proceedings. He participated through his representative. 1st Respondent called two witnesses as mentioned above and closed its case. 2nd Respondent closed its case without leading any evidence. I must mention, it came as shock to me considering that he had a duty to take the Council into confidence, about how he made his application for the post of LFFSS. When Mr Gashi submitted that they were closing their case without leading evidence, I checked with Xuba if those were his instructions to his representative and he confirmed. I struggle to understand why Xuba would choose not to explain how he made his applications, when there were serious allegations against him. Now when he chooses not to explain himself, how do I come to a conclusion that his application form for post no 182 complied with paragraph B of Volume 1 of 2023. Xuba was the only person who knew how he made his application, he handed it to who, and how he submitted it, whether his detailed CV was attached? Only Xuba would give answers to these questions.

28. I am certain in the event Xuba testified and explained the process he followed, I would have arrived at a different conclusion, than the one I would reach. The decision I take is based on the evidence presented before me, not on what I wish for or assumption that the might be a human error. When 1st Respondent did not explain how it shortlisted Xuba without a proper application form with all the supporting documents including CV, I expected Xuba to close that gap, but that was not done.

29. The evidence of the Applicant remains unchallenged. How do I reject the evidence of the Applicant when it was not challenged by both 1st Respondent & 2nd Respondent? If someone comes and say it was challenged, question is who spoke about the detailed CV of the 2nd Respondent? Was the detailed CV of Xuba presented before the Council? Why did application of Xuba pass the sifting stage, why was his application not sifted out? I am struggling to make sense of all this. The two witnesses of the 1st Respondent were very poor, they had no desire of assisting the Council in ascertaining the truth. They did not assist 1st Respondents case at all. It is not clear where the original application forms of the candidates were placed. None of the litigants requested the original application forms to be presented to the sitting.

30. In PAMPLIN v WESTERN CAPE EDUCATION DEPARTMENT ( C1034/2015) the Court “emphasized that whilst in unfair labour practice disputes relating to promotion the onus is on the Employee to demonstrate that the failure to promote was unfair, the Employer is in the same token, obliged to defend challenges on the substantive and procedural fairness. If it wishes to avoid a negative outcome. There is an obligation on the Employer to place evidence that it acted fairly and in good faith during the promotion exercise. In the absence of such evidence it would be irrational and unreasonable to conclude that the Employer acted fairly, regardless of where the onus lies”. The two witnesses of the 1ST Respondent did not assist the 1st Respondents case at all. It was clear on their answers that they were biased towards the 2nd Respondent. All the shortlisted candidates, their application forms were not completely filled in. When asked about such, their responses were “no comment”. The Applicant according to them was not shortlisted because her application form had blank spaces, it was not completely filled in. How was the application form of the Applicant different from that of the other 5 shortlisted candidates? With the evidence presented before me the 1st Respondent did not defend its decision, despite having a duty to do so. There is no evidence placed before the Council by the 1st Respondent on what it relied upon, in shortlisting the 2nd Respondent and appointing him.

31. In NCANE v SSSBC & OTHERS DA 27/15 ( 2017) ZALAC (1) (2017) 38 ILJ 907 (LAC), (2017) 4 BLLR 350 (LAC) the Court noted that the purpose of promoting an Employee is usually because the Employers organisation has a vacancy for a person to perform a particular task and candidates for the promotion are the Employees functioning at a lower level, who possible have the qualifications, skills and ability to perform the tasks of the higher position. Good labour relations dictate that an Employer must act fairly towards its Employees. In the context of promotion this means that : an Employer must abide by the law and the objective standards and criteria that it has set for promotion including the eligibility for the post and, ensure that the eligible Employee has a fair opportunity to compete for the post. It is usually said that this leg of the promotion process must be procedurally fair. As the aim of a fair process is to achieve a fair substantive result, procedural unfairness may result in the final decision itself being substantively unfair.” In the present matter before the Council the procedural unfairness has led to the final decision being substantively unfair. With the evidence before the Council Xuba was not supposed to have been shortlisted and participated on the interviews, based on the background I have given of this matter.

32. In Aries v CCMA and others (2006) 27 ILJ 2324(LC) the Court held 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.” To determine if the failure to promote the employee was unfair, the Court in Ndlovu v CCMA and others (2000) 21 ILJ 1653(LC) stated that: “it can never suffice in relation to any such question for the complainant to say that he/she is qualified by experience, ability and technical qualifications such as university degree and the like for the post, that is merely the hurdle. 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”.

33. The Applicant bears the onus to prove that the 1st Respondent committed unfair labour practice relating to promotion and furthermore that there was some form of unfair conduct on the part of the 1st Respondent during the promotion process and that such unfair conduct constituted an unfair labour practice and she is entitled to the relief sought.

34. Based on the evidence before me and on what I have highlighted above, I find that the Applicant discharged the onus placed on her. The conduct of the first Respondent amounted to unfair labour practice, based on the reasons highlighted above. In the result, the appointment of the second Respondent into the position of Principal at Lady Frere Full Service School cannot be sustained and stands to be set aside as I hereby do set it aside.

AWARD
35. I find that the conduct of the first Respondent amounted to unfair labour practice relating to promotion as intended in section 186 (2)(a) of the Labour Relations Act 66 of 1995.

36. The entire process that led to the appointment of 2nd Respondent as the school principal of Lady Frere Full Service School is set aside and his appointment is set-aside.

37. The first Respondent hereby directed to start afresh the entire recruitment and selection process and appoint a selection panel comprising of different individuals/independent selection panel that not involved in the debacle that led to this award is appointed.

 Signature:
Commissioner: Siziwe Gcayi
Sector: Basic Education