IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD IN DURBAN TEACHER’S CENTRE

In the matter between
SADTU obo BASIL ZAMANI NGCOBO Applicant
and
DEPARTMENT OF HIGHER EDUCATION & TRAINING (DHET) Respondent

ARBITRATOR : A S Dorasamy
HEARD : 17 FEBRUARY 2023
DATE OF AWARD : 02 MARCH 2023
SUMMARY : Labour Relations Act 66 of 1995 – Section 186(2) (a) – alleged unfair
conduct related to promotion
ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1 This matter was set down for arbitration on various dates and on the 17 February 2023 the
evidence was completed at the Durban Teacher’s Centre offices in Durban. This matter was under the auspices of the Education Labour Relations Council (ELRC). Mr Basil Zamini Ngcobo, the applicant, represented himself. Mr Themba Mthembu represented the Department of Higher Education. The parties were to submit written closing arguments by the 24 February 2023. The party’s submissions and the applicable provisions of the applicable circulars relating to promotions were considered when I arrived at my decision.

THE ISSUE IN DISPUTE
2 I am required to determine whether the respondent committed any unfair labour practice in not promoting the applicant to the post of Assistant Director Student Support Services and depending on the outcome thereon, the appropriate relief may be determined.
THE BACKGROUND TO THE DISPUTE
3.1 The applicant applied for the post, but the promotion process did not take place and no appointment was made.
The respondent opposed the relief sought by the applicant and prayed for the matter to be dismissed.
3.3. All documents referred to had been made available to the parties at arbitration. The markings of the documents were standardised with the parties at the arbitration.

APPLICANT’S (EMPLOYEE) OPENING STATEMENT
4. The Coastal College in 2020 advertised six promotional posts. In their advertisement of all posts they failed to meet the requirements for advertising according to the DHET Recruitment and Selection Policy of 2019 in that the policy prescribes under section 2.1.2 (a) that the College should advertise in the National print media along with DHET website and the DPSA vacancy circular. The College advertised on the College Notice Board and College website as well as the local newspapers.
He applied for the post of Student Support Services.
5. He seeks that the posts be re-advertised in the correct media to give a fair chance to all those who wanted to apply.

RESPONDENT’S OPENING STATEMENT
6. The employer is convinced that the applicant did not suffer any prejudice with the omission of the advertising media as he applied for the post. Only two of the six posts were filled.
7. Therefore the employer is of the view that the dispute is premature in that the Assistant Director’s Student Support Services post has not been filled.
8. The relief sought is that the matter be dismissed.

SUMMARY OF EVIDENCE AND ARGUMENT
EVIDENCE ON BEHALF OF THE APPLICANT
THE SALIENT ASPECTS OF THE EVIDENCE ARE RECORDED BELOW.

MR BASIL ZAMANI NGCOBO
Mr Ngcobo testified to the following effect:
9. In his referral he prayed for the ELRC to instruct the College to abide by the ELRC and its own policies. If the decision is in his favour then the College is to re-advertise the posts using the correct procedures.

Under cross-examination he stated that
10. At that time his Union lodged a dispute on his behalf.
11. There were six posts advertised and he applied for the post listed on the advertisement. The advertisement was in the Sunday Times and Isolezwe on 30 November 2000. The post he applied for was advertised. He requested the College to send the advertisement to him and he applied for the post. He was interested in the post he applied for at the time.

PHILANI MENZI LWANDLE
The salient aspects of his evidence are recorded below.
12. He is employed at the Coastal College. In 2020 the College advertised six posts. He did not apply because the posts were not advertised in the website under DHET or DPSA.
13. He did not see the advertisement and did not qualify for the IT post. He was going to apply if he saw the post. He lodged a dispute with the applicant in respect of the posts. He hardly buys the newspapers and knows that Isolezwe is sold daily. He was prejudiced because he should have applied. He is a shop steward.

Under cross examination he stated as follows:
14. He deals with grievances but at Coastal College there is no grievance committee. He had to send it to the Branch leadership that is the applicant. He did not want to duplicate the dispute.
15. The SADTU representative was at the meeting. He observed several times the promotion processes. The minutes were signed to indicate the process was fair. All the processes were followed. The observers did not object to the process.
16. The SADTU representative was Mr I V Nkonyeni who was deployed by the applicant as he was the secretary. Mr H S Dlamini signed for SADTU.

EVIDENCE ON BEHALF OF THE RESPONDENT
RESPONDENT’S CASE
MR RAJEEV KUMAR RAMDEV
The salient aspects of his evidence are recorded below.
17. He knows the applicant as an employee of the College, as a lecturer and Branch secretary of SADTU.
18. He was the HR representative. There was no objections from the union representatives in the shortlisting and interview processes. The head of the college Administrator was the chairperson of the process.
19. The advertisement was in the Business Times and Isolezwe and at the time the college was in financial distress. There were six posts advertised and the applicant had applied for one post. In 2000, COVID and the College faced corruption and was placed under administration.

Under cross examination by the Applicant he stated as follows:
20. The process was not mechanically recorded.
21. The union complained and the College responded.
22. The process started in 2020 and only two of the six posts have been filled. DHET is still to finalise the other posts.

CLOSING ARGUMENTS
23. The parties submitted written closing arguments that were considered in arriving at my decision. The parties must be complimented for submitting comprehensive arguments.

ANALYSIS OF EVIDENCE AND ARGUMENT
THE RELEVANT LEGAL PRINCIPLES
24. 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 labour 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. As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.
25 It is trite law that the courts will only interfere with the employer’s decision if it is grossly unreasonable.
26. In the present case, the respondent advertised six posts. The applicant challenges the manner in which the posts were advertised but he applied for one post. The post that he applied for has not been finalized. The College was placed under administration and the post that the applicant had applied for is still in the process and has not been concluded.
27. The applicant was aware of the post being advertised and upon request was given a copy of the advert. Therefore, he was not prejudiced because he applied for the post. The fact that the outcome of the promotion process has not been finalized renders the applicant’s dispute premature.
28. As a consequence of the above the application fails and is dismissed.

APPLICATION OF THE LAW TO THE FACTS
29. The College advertised six posts and the applicant contends that the advertisement was not in terms of the policy for advertising posts. The applicant became aware of the advertisement and subsequently applied
for a post.
30. The College had finalized two of the advertised posts. The post that the applicant had applied for was not finalized.

31. The application is premature and is dismissed.

AWARD
32.1 The application is dismissed
32.2. There is no order as to costs.

DATED AT DURBAN ON THIS 02 DAY OF MARCH 2023.

A S DORASAMY (ARBITRATOR)