Case Number: ELRC205-21/22EC
Commissioner: MBULELO SAFA
Date of Award 28 October 2021
In the ARBITRATION between: –

SADTU obo BONGANI CORNELIUS SILWANA
Applicant

And

DEPARTMENT OF EDUCATION, EASTERN CAPE
First Respondent

CHRISTOPHER MDLANGU
Second Respondent

DETAILS OF THE HEARING AND REPRESENTATION

1. The matter set down for arbitration on the 19 October 2021 on the virtual platform, Zoom.

2. The Applicant was represented by Miss Thembakazi Mbotya from the union, SADTU. The First Respondent was represented by Mr Thobelani Mlahleni who is their Labour Relations Officer and the Second Respondent represented himself.

3. The proceedings were recorded on the virtual platform.

ISSUES TO BE DECIDED

4. Whether or not the decision of the Respondent not to promote the Applicant to the post of Principal was unfair and to make an appropriate award.

BACKGROUND TO THE ISSUE

5. The First Respondent advertised a post of the Principal of Nkosemntu Motman Primary School in Chris Hani West District in the bulletin Volume 4 of 2020.

6. The Applicant and the Second Respondent applied for the post, the Second Respondent was shortlisted and got appointed into the post and the Applicant was not shortlisted.

7. Unhappy with the decision of the SGB not to shortlist him for the post the Applicant referred an unfair labour practice dispute to the ELRC. The dispute remained unresolved at conciliation and it was referred to arbitration.

8. The relief the Applicant is the setting aside of the promotion of the Second Respondent and that the process be started afresh.
SURVEY OF EVIDENCE AND ARGUMENT

9. The Applicant submitted one bundle of documents and led oral evidence through one witness. The First Respondent submitted one bundle of documents and also led evidence through two witnesses. The Second Respondent did not submit any bundles and lead evidence through one witness.

10. The parties proposed, and it was agreed, that they submit their closing arguments in writing by not later that the end of day on the 25 October 2021. It is only the Second Respondent who had not submitted their closing arguments when the award was finalized.

APPLICANT’S EVIDENCE AND ARGUMENT

11. The Applicant testified that he is currently the principal of another school having been appointed to that post since 2013 and had started teaching in 1997.

12. He said that according to the advertisement of the post he met all the requirements in terms of experience and qualifications. He studied B. Tech in Education Management

13. He testified that since 2013 he has been managing a school and his school was one of the functional schools in the district. He left the school to be attached to another school because of the injury he had which affected his hip bone and necessitated that he be placed in a school where he would not travel on gravel roads.

14. He conceded that there were shortlisted candidates who had more experience than him. He however testified that he was better than the Second Respondent as the Second Respondent has eighteen (18) years’ experience compared to Applicant’s twenty-three (23) years. He also has more managerial experience than the Second Respondent.

FIRST RESPONDENT’S EVIDENCE

15. The First Respondent’s witness, Mr Thamsanqa Kongolo, who is the Circuit Manager for Nciba Circuit where Nkosemntu Motman Primary School (the school) is situated, testified that he knew the Applicant as they taught Agriculture together, got promoted as principals together and when the witness was appointed as the Circuit Manager, the school of the Applicant was in his circuit.

16. Witness testified that he was part of the interview committee (as a resource person) that set to shortlist candidates for the post of principal of the school.

17. He said that in the advert there were specific requirements stated like that the applicant must be teaching the subjects in grade R to grade 7.

18. He trained the entire School Governing Body(SGB) on how to run the process and hence the interview committee knew what was expected from it as contained in the recruitment policy of the First Respondent.

19. He testified that the interview committee agreed on certain criteria they were going to use to eliminate some of the applicants. The criteria included the completeness of the application form, the experience, management experience and those who had management experience but no management qualification.

20. Witness testified that they coded (used numbers and not names) of all the thirty-eight (38) applications they received. Applicant was coded as number 6. In his form the Applicant stated that he was on Post level 2. He also mentioned that his specialization was Xhosa and Agricultural Science. The Applicant mentioned that he has a Secondary Teachers Diploma, which according to the witness was a qualification to teach at the Secondary School. In the form the Applicant stated that he has REQV 16 but according to the assessment of the committee he was on REQV 15.

21. The witness further stated that the form of the Applicant was not completed on paragraph 20.9, 20.10, 24.2 to 24.5, paragraph 26.3 to 26.5 and 27.4 to 27.5.
22. Amongst the candidates for the post were people who are already principals, some Deputy Principals, some were HODs and others were Post Level 1 educators. All the post level one educators fell away earlier after looking at the various aspects. In order to ensure that they give each category a fair chance the committee decided on a ratio of 2:2:1. This ratio meant they were going to shortlist two applicants who are already principals, two who were already deputy principals and one who was already an HOD. According to this ratio the applicants in each category competed with each other.

23. He denied that the candidate who was number 30 was supposed to be shortlisted saying it was compulsory to shortlist him only if he had acted in the post for not less than twelve months.

24. The candidates who were shortlisted had teaching experience ranging between 19 and 30 years. The Second Respondent had 19 years’ experience and was a Deputy Principal.

25. The committee looked at the fact that the Applicant was not a Primary School teacher and was currently teaching at the High School. The other aspect was that the Applicant had a qualification to teach at Secondary School and also that his form was not properly filled in.

26. In a grievance meeting, the explanation of the process was given to the Applicant.

27. The other witness of the First Respondent, Aron Ntloko who is an official of the union, NAPTOSA, testified that on the day of the shortlisting he was an observer from the union as per the recruitment policy of the First Respondent. He was an observer together with another union representative from SADTU.

28. During the shortlisting they raised their concerns and questions and they were responded to properly. All the representatives signed the confidentiality forms and their implications were explained.

29. The interview committee members were active in the drafting of the criteria and were ably guided by the Resource Person. Out of thirty-eight (38) applicants five were shortlisted applying the agreed to criteria. The interview committee agreed about the principle of fairness. At the end both unions agreed that the process was fair.

Second Respondent Evidence

30. The Second Respondent, Christopher Mdlangu, testified that he applied for the post as advertised. The requirements for the post teaching in grade R to grade 7 and management.

31. As a qualified Deputy Principal he felt he met the requirements of the post having taught in the primary school since he started teaching. He then applied, was shortlisted and got appointed into the post.

32. He believed that setting aside his appointment would be detrimental to his career as he had already left his previous post and it has since been filled. He also believed that the process of appointment was fairly done.

ANALYSIS OF EVIDENCE AND ARGUMENT

33. This matter was referred in terms of section 186(2) of Labour Relations Act (LRA) as an unfair labour practice related to promotion. The Applicant thus bears the onus of proof.

34. The Applicant limited his attack on the appointment process on the fact that he was not shortlisted and felt he should have been shortlisted.

35. In his evidence, the witness of the Respondent, Mr Thamsanqa Kongolo, gave a detailed and undisputed explanation on the process used by the interview committee to shortlist the candidates. He gave an account of how each candidate was treated during the shortlisting, including the Applicant.

36. According to the evidence of Mr Kongolo the Applicant was put in the same basket together with other principals who applied for the post. He was made to compete with other principals in that basket. The Applicant conceded that some of the principals surpassed him in terms of experience and qualifications. He got eliminated in the basket.

37. On the other hand, the Second Respondent was put in another basket together with other Deputy Principals. He competed with his ‘equals’ and succeeded.

38. In her arguments the Applicant’s representative suggested that the evidence of Mr Kongolo was witch hunting as it was never presented at the grievance meeting and at arbitration. Whether the evidence was presented at the grievance meeting or not does not matter as I only consider the evidence that was presented at arbitration. It is incorrect for the representative to suggest that the explanation of Mr Kongolo was not presented at arbitration. I am aware of the evidence of Mr Kongolo because he presented it at the arbitration.

39. The Applicant representative further argued that the form of the Second Respondent was not completely filled and that another candidate had the same Secondary Teachers Diploma as the Applicant but was shortlisted. At the arbitration there was no evidence led on the two arguments and as such they do not carry any weight.

40. In the opening statement the Applicant representative argued that equity was not considered as all shortlisted candidates were males. This argument is correct but her case is not about unfair discrimination as contained in the Employment Equity Act but about unfair labour practice as contained in the Labour Relations Act. For that matter the Applicant himself is the male.

41. The purpose of the shortlisting during the appointment is to eliminate some candidates until there is a shortlist of candidates which, according to the recruitment policy of the First Respondent it should be five candidates. The process of shortlisting entails adopting criteria which will be applied to eliminate some candidates. There is no policy or law that prescribes which criteria are right or wrong. Generally, the criteria that are not acceptable are those that unfairly discriminate against some candidates.

42. In this arbitration there was no evidence led to say that some of the criteria unfairly discriminated against the Applicant. According to the evidence led, the Applicant was not shortlisted after many aspects were considered. The aspects that were considered included the fact that the Applicant had a qualification to teach at Secondary School, the fact that the Applicant did not have the experience of teaching at primary school and the fact that the Applicant did not fill the application form completely. Compared with other candidates with whom he was put in a ‘basket’ the Applicant was not successful in being shortlisted.

43. Clause 45 of ELRC Collective Agreement 3 of 2016 holds thus; “The Head of Department as the employer is expected to act reasonably in making an appointment. His decision cannot however be interfered with by a court or arbitrator purely because there may be another, perhaps better decision which could have resulted by attributing more weight to some factor or factors and less to others. If the decision arrived at by the Head of Department is reasonable then it must stand.” It may be that the Applicant feels that the decisions of the First Respondent were not the best but my finding is that the decision of the First Respondent was reasonable and thus cannot be interfered with.

44. Clause 39 of the same collective agreement holds that the decision to or not to promote falls within the managerial prerogative of the employer. The arbitrator should only interfere with the exercise of the employer discretion if there is gross unreasonableness, bad faith or where the decision relating to promotion is seriously flawed. It is my finding that the First Respondent exercised their discretion fairly and there was no unreasonableness.

45. The Labour Court in Arries v CCMA and Others (2006) 27 ILJ 2324(LC) held that there are limited grounds on which a commissioner or court may interfere with a discretion which has been exercised by a party competent to exercise that discretion. The discretion ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised.

46. I am enjoined here not to decide whether or not the First Respondent made an incorrect decision in not shortlisting the Applicant but to decide whether the First Respondent acted unfairly towards the Applicant.

47. The Applicant may feel aggrieved by the fact that he was eliminated from the race for the post but this does not make the criteria used to eliminate him unfair. The First Respondent therefore did not act unfairly towards the Applicant.

48. Consequently, there were no factors that warrant interference with the prerogative of the First Respondent.

In the circumstances I make the following award;

AWARD

49. The application fails

50. The Applicant, Bongani Cornelius Silwana, is not entitled to the relief he sought.

Mbulelo Safa: ELRC Panelist