3 November 2021 – ELRC 597-20-21 KZN

IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN DURBAN
Case No ELRC 597-20-21 KZN
In the matter between
NATU O B O N D C HLOPHE Applicant
and
DEPARTMENT OF EDUCATION: KZN 1st Respondent
Ms SADTU O B O S E NGUBANE 2nd Respondent

ARBITRATOR : AS Dorasamy
HEARD : 27/28 SEPTEMBER 2021
DATE OF AWARD : 02 November 2021
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 28 September 2021 and the evidence was completed at the Department of Education offices in Empangeni, under the auspices of the Education Labour Relations Council (ELRC). Ms Lungile Zibani of NATU represented Ms Ntombeziphelele Dorcas Cynthia Hlophe (applicant), Mr Y I Ramcheron represented the Department of Education KZN (1st respondent), second respondent was initially represented by Mr Jabulani Nxumalo of SADTU and then by Mr M C Sibanyoni of the same union. The parties were to submit written closing arguments by the 5 October 2021 but because of other commitments the submissions were made on the 8 October 2021. 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 1ST respondent committed any unfair labour practice relating to promotion in not promoting the applicant to the post in question (OBE 13/2020), CES (Chief Education Specialist) District Planning and Infrastructure and dependent thereon the appropriate relief may be determined.
THE BACKGROUND TO THE DISPUTE
3.1 The applicant applied for the post, was short-listed and interviewed for the post but was not appointed.
3.2. Ms Sindisiwe Edith Ngubane was appointed to the post. The applicant prays that the appointment be set aside alternatively she seeks appointment to the post.
The respondents oppose the relief sought by the applicant.
3.3. All documents referred to had been made available to the parties at arbitration. The markings of the documents was standardised with the parties at the arbitration.

APPLICANT’S (EMPLOYEE) OPENING STATEMENT
4. The applicant lodged the dispute alleging that the current incumbent did not apply for the post to which she was appointed. She alleges that she as the deserving candidate had the qualifications and experience for the post.
She seeks the setting aside of the appointment and be appointed to the post.

FIRST RESPONDENT’S OPENING STATEMENT
5. This dispute should be dealt with in relation to the Collective Agreement at the ELRC. The procedure was procedurally and substantively fair and the applicant cannot be appointed to the post.

SECOND RESPONDENT’S OPENING STATEMENT
6. The second respondent elected not to make an opening statement.

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

Ms HLOPHE NTOMBEZIPHELILE DOCAS CYNTHIA
Ms Hlophe testified to the following effect:
7. She alleges discrepancies in the post. The applicant did not apply for the post. The post reference is 13/2020 and the applicant brought 7 applications and not the post in question.
8. Her preference list is dated 2 September 2020 and her list of applications is dated 4 September 20. The source and preference list must correspond as the preference list is handed with the application. She did not apply for the post. Her interest was not for the post.
9. The applicant feels prejudiced because she was in that Department for 12 years up to date. In 2009 the applicant and she were appointed together on the same day and in 2016 the superior resigned and she acted in the DCES post.
10. In 2016 she got the post and the applicant requested to move to examinations.
11. She acted in the post for 18 months and when the post was advertised she gathered experience in the post. She was amazed when the Department released the posts as the appointee had jumped and became CES (Chief Education Specialist). She felt something wrong. Her next level was CES and she was acting in the post.
12. Page 3 records the requirements for the post. The appointee did not qualify for the post. She should not have applied for the post.
13. She acted in the post and should have been appointed.
Under cross-examination by the First Respondent she stated that
14. The closing date was the 4 September 2020.
15. It is not mandatory to move from DCES to CES. The criteria requires minimum education and
experience requirements and to score well. Many people meet the minimum requirements. If a person meets the minimum requirements they are free to apply.
16. There is no collective agreement in the ELRC now that ensures that if one acted in a particular post
they would be given the post.
17. She was short listed and interviewed and was the highest scoring candidate in the short listing process. The NATU and SADTU observers would say the appointee scored higher than her. The documents were given to her by Mr Matabela and her NATU representative. The first respondent would say she approached a certain official and requested the document and tampered with it. The date 4/9/20 to 23/2020 the number 4 is not the same or similar. It appears to be tampered by someone.
18. The appointee did not alter these numbers. The schedule of applications is requires the envelopes to be opened and the CVs comes out of the box.
19. She knows the members if the Interview committee. The panellist would not favour the appointee. The Department has a zero tolerance to corruption. The Department was satisfied that the appointee applied for the post. The short listing was based on the CVs received. The unions were present and NATU attended the short listing and a new representative was at the Interviews. The names of the applicants were not called when the CV was read and then the panel member would score in the presence of the observers. She agrees that she was scored fairly.

MR NELSON SIMPHIWE MALUNGA

THE SALIENT ASPECTS OF THE EVIDENCE ARE RECORDED BELOW.
20. He was part of the Interview process when the applicant was interviewed. He understood everything. The chairperson of the Interview Committee (IC) was the Director of Zululand and he explained everything to the candidates. This was the first post for the day.
21. They were given Resolution 11 as a guide. He was a bit shocked at the scores. The Director gave his score first. The applicant was the third candidate interviewed.
22. The post in question the candidate called first was Ms N E Ngubane and was recommended for the position. During the time he was observing for NATU and the applicant was a SADTU member. He objected and the secretary recorded it. He cannot remember if the SADTU representative expressed any concerns.

Under cross examination he stated as follows:
23. After he raised his concerns he did nothing. He signed the recommendation of the candidate and the union never lodged anything.

EVIDENCE ON BEHALF OF THE FIRST AND SECOND RESPONDENTS

FIRST RESPONDENT’S CASE
PETROS DUMISANI NDLOVU
The salient aspects of his evidence are recorded below.
24. He is the District Director for the Zululand District. He signed the documents as chairperson of the Interview Committee.
25. The unions did not influence the scoring. All CVs were read out. There was no objections from the unions. The schedule of applications (page12) was presented to the IC where the CVs were present. The CVs were coded and scoring was based on the codes of CVs. The names were not read during the process.
26. No CVs were brought into the process. The details on the schedule on page 12 was from the CVs. The schedule is compiled by Ms Luthuli a Deputy Director.
27. The CTU representative Mr Matabela was not present at the interviews as he was replaced by Mr Malunga. Mr Matabela did not raise any objections about the short listing. In the interview process Mr Malunga had no objections in the process.
28. Ms Ngubane scored higher than Ms Hlophe in the interview process and there was no objections about the scoring. The minutes were compiled during the process and nobody raised any objections.
29. Ms Hlophe is known to him. There was no acting since 2017 only there were co-ordinators who assisted in the vacant posts as the Department could not afford the costs. No letter was given to her. She was co-ordinating that is just a willingness to hold the vacant position voluntarily.
30. In 2017-2019 there was no collective agreement where a person acting was then granted permanency in the post.
31. HRM 38 of 2020 had the requirements for the post that is 3 / 4year qualification, 9 years teaching and school management experience.
32. On page 14 (BB) is the register where the applicants hand over their applications and then sign it. There are alterations on the dates. There was no complaint about the alterations and Ms Luthuli did indicate that she got it from the intern controlling the book. The applicant asked for the book and she did not know what she did with it because she was busy. The intern is not with the Department now.
33. He did not take action because he did not receive any complaint. The used the applications to compile the schedule. The appointment to the post is guided by the requirements for the post. There were 27 applications and only Ms Hlophe had a problem.
34. The interview process is guided by the candidate’s performance during the day. As the chairperson he led from the front and the other panellists would follow. They would average to arrive at the final score. There was no objection to the process and it was agreed.
CROSS EXAMINATION BY 2ND RESPONDENT
35. In his experience the scores were the true reflection of the interviews. They received the schedule and presented it to the panel.

CROSS EXAMINATION BY THE APPLICANT
36. The applications were received and put in a box and the CVs picked and recorded. No applications were accepted after the closing date of 4 September 2020.
37. The schedule on page 58 (BB) the numbers are altered.
38. The post of co-ordinating is voluntary. There is no appointment. There were other colleagues but she was senior and asked to volunteer. They do not perform all the duties.
39. The list supplied by NATU which the applicant had access is not the whole list.

CLOSING ARGUMENTS
40. 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
41 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.
42. It is trite law that the courts will only interfere with the employer’s decision if it is grossly unreasonable.
The Interview Committee must submit to the Human Resources Component at Head Office who will thereafter proceed with the placement of the relevant candidates in accordance with their individual preference order (in order of preference- this was done).
43. The schedule of placed candidates will be submitted to the Superintendent- General for approval.
44. In the present case the Superintendent- General considered the indication/ recommendation of the Human Resources Component and decided to appoint the highest scoring candidate, Ms Sindisiwe Edith Ngubane. The appointment was not arbitrary or motivated by an unacceptable reason. The decision can be rationally justified, as the appointee was like the applicant a Black female, scored the highest mark and met the minimum requirements for the post. Therefore I do not believe that there are any justifiable reasons to interfere with the decision to appoint Ms Sindiswe Edith Ngubane as CES District Planning and School Infra Structure – Post OBE 13/2020.

APPLICATION OF THE LAW TO THE FACTS
45. The promotion process of the respondent the Department of Education is regulated by HRM Circular NO.38 of 2020 documents and collective agreements (ELRC Collective Agreement No.1 of 2010.
The stakeholders in the education sector continuously appraise the procedure manuals and where necessary amendments are effected.
46. The following are of importance to direct parties in this sector that careful consideration must be given to the following principles that guide/ direct the promotion/ appointment process. Should a better understanding evolve then this would lead to a more expeditious filling of advertised posts and effective teaching and learning situation. It is a clear from the number of disputes attended to by the ELRC that the education sector is saddled with promotion disputes that have the net result that the vacant posts remain in limbo until the matters are settled either by agreement or by awards.
47. The following are recorded in the promotion manual HRM VACANCY CIRCULAR NUMBER 38 OF 2020.
ADVERTISEMENT OF OFFICE BASED EDUCATOR VACANCIES

2. GENERAL PRINCIPLES
This procedure manual is developed within the framework of the Personnel Administrative Measures (PAM) and PELRC Collective Agreement No. 1 of 2010. It replaces all other previous practices and procedure manuals.

GENERAL SERVICE REQUIREMENTS
POST
CHIEF EDUCATION SPECIALIST (CES)-POST LEVEL 6
SERVICE REQUIREMENTS
9 Years’ experience in the education field, coupled with appropriate school management experience equivalent to the requirements of the post is taken into account for purposes of appointment.

6.6 ROLE OF OBSERVERS
6.1.1 The observer be present at all meetings of the Interview Committee during the shortlisting
and interviewing processes.
6.6.2 The observer will………(eg Observers shall not score)
6.6.3 The observer has the right………in the Resolution.
6.6.4 In such an instance……………….. leave the room.
6.6.5 The observer must sign………………secrecy.
6.6.6 The observer must sign…………..and interviews.
6.6.7. The observer……… of the applicant.
6.6.8 The observer must continue…… Committee.

48. The first concern is that the promotion/ appointment procedure manual clearly defines the
process and the obligations of the participants in the process. All participants must sign a
confidentiality undertaking put simply it means that all information in their hands are
privileged and confidential. As such any disclosure would render such information
inadmissible. There must be strict adherence to the confidentiality clause. This seems to
be the root cause of grievances and disputes at stages that the drafter had not envisaged.
49. Turning to the matter at hand it is clear that the Interview Committee was engaged/ monitored by the
unions SADTU and CTU “ATU” and submitted its preferred candidate. They put their recommendations before the Human Resources Component resulting in the Superintendent-General appointed Ms S E Ngubane the post.
50. In the collective agreement Number 3 of 2016 ELRC Guidelines: Promotion Arbitrations the
following are recorded:
32. 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. Mere unhappiness or a perception of unfairness does
not establish unfair conduct. What is fair depends upon the circumstances of a particular case
and essentially involves a value judgment.
33. Where an applicant in a promotion dispute, is unable to prove that he was the best of all
the candidates who applied for the job, then in order for the employee to prove an unfair labour
practice relating to promotion, he or she should generally, at least demonstrate that there was
conduct that denied him or her a fair opportunity to compete for a post, or conduct that was
arbitrary or motivated by an unacceptable reason, or that the successful candidate was
dishonest and misled the interview panel or employer.
51. The applicant’s initial union SADTU and then NATU was a party to the process and approved the
appointment of Ms Ngubane. I conclude that the appointment process to be fair. The application
must fail.
52. As a consequence of the above I determine that the appointment of Ms Sindisiwe Edith Ngubane to
the post of CES District Planning & School Infrastructure be confirmed.
. COSTS
I have considered the issue of costs and determine that no party acted frivolously or vexatiously in the proceedings and do no order of costs against any party.
AWARD
53.1. The application is dismissed
53.2. The appointment of Ms Sindisiwe Edith Ngubane to the post of CES District Planning & School
Infrastructure be confirmed.
53.3. There is no order as to costs.