Case Number: ELRC373-24/25GP
Commissioner: M.A. HAWYES
Date of Award: 03 October 2024
In the ARBITRATION between
Clifford Dihangoane
(Union/Applicant)
and
Department of Education: Gauteng
(First Respondent)
Mazibuko Buhle
(Second Respondent)
1. DETAILS OF HEARING AND REPRESENTATION
1.1 The matter was scheduled for arbitration on the 20TH of September 2024 at the Respondent’s District offices at Tshwane North.
1.2 Mr. T. Ramabulana, a SADTU union official, represented the Applicant.
1.3 Ms. M. Ralioma, a labour relations officer, represented the First Respondent.
1.4 Mr. L.N Raseroka, also a union official from SADTU, represented the Second Respondent.
1.5 After the completion of evidence on the point in limine the parties requested an opportunity to submit written closing arguments by the 27th of September 2024. All parties made their submissions timeously and my ruling now follows.
2. ISSUE IN DISPUTE
This is a dispute related to the appointment of a departmental head (DH) at the Padisago Primary School. After the full recruitment process the Second Respondent was appointed to the position and is deemed to be the current incumbent in the post. The Applicant challenges the fairness of that appointment and contends that he should have been appointed to the position instead. The Applicant relies upon section 186 (2) (a) of the Labour Relations Act, no 65 of 1995 (as amended) (LRA) in alleging an unfair labour practice on the basis of promotion.
3. BACKGROUND TO THE ISSUE
3.1 At the outset Ms Ralioma for the First Respondent contended that the Applicant should never have been shortlisted for the position in the first place.
3.2 The First Respondent referred to an alleged defect in the Applicant’s application form which it contends should have disqualified him at the outset.
4. SURVEY OF RESPONDENT’S SUBMISSIONS ON THE POINT IN LIMINE
4.1 Ms. Ralioma argued that the Applicant had, when applying for the position of DH at Padisago Primary School, provided the incorrect information in his application form (GDE 2R) under the current position of employment in that he has the following experience.
4.2 The statement of the information provided by the Applicant is best demonstrated by the exact presentation of the information as it appears in his form GDE 2R:
(a) CURRENT POSITION OF EMPLOYMENT
Department/ Employer Institution Learning Areas/Subjects & Grades Post Level Exact dates in current post Total
Gauteng Department of Education Padisago Primary School English HL, Grade 6-7
Sepedi FAL, Grade 5
Life skills, Grade 5-6 PL1
ACTING DH for, English, Sepedi, Isizulu, Setswana, EMS, CA From
(M/Y) Years Months
01/2017 06 05
4.3 It is common cause that in 2017 the Applicant was not an Acting DH for English, Sepedi, Isizulu, Setswana, EMS and CA. Furthermore, he did not so act for a period of 6 years and 5 months.
4.4 It is also common cause that in 2017, Padisago Primary School did not have a vacant DH position.
4.5 The First Respondent led the evidence of the principal, Ms. S Lekalakala at Padisago Primary School and she testified, inter alia, that the Applicant had submitted false or incorrect information in his application form relating to his tenure of acting as a DH.
5. SURVEY OF APPLICANT’S EVIDENCE AND ARGUMENT
5.1 The Applicant testified under oath and did not call any witnesses. The Applicant did not dispute the testimony that he provided incorrect information under his current position of employment on form GDE 2R..
5.2 His contention was that the information was misplaced.
5.3 It was basically submitted by his union representative that the Applicant made a bona fide mistake and that he had no intention to misrepresent the facts of his current position when he completed form GDE 2R.
6. ANALYSIS OF EVIDENCE AND ARGUMENT
6.1 At the end of form GDE 2R form aspirant Applicants’ are required to acknowledge in a Declaration that the above information provided (including any attachments) is true and correct. The Applicant also acknowledged that any false or incorrect information could lead to the application being eliminated and him being charged on account of misconduct if appointed.
6.2 The Applicant’s representative argued that the Applicant misplaced the information by cutting and pasting it into the incorrect section and that it was a bona fide and innocuous mistake.
6.3 The declaration referred to above does not only limit the provision of information to falsely stated information with the intention to deceive, it goes further and refers to “incorrect information” where the Applicant may have had the best of intentions but where the information remains incorrect, nonetheless.
6.4 Applicants are required to complete GDE 2R forms with reasonable care and the necessary attention to detail. The Applicant did not act as a reasonable Applicant placed in the same position.
6.5 It is important to note that the sifting of applications is not done by the selection committee but separately at the District office. The provision of correct information is an absolute requirement for applications of this nature since the information is mostly considered by lay School Governing Body members who have a right to expect the information provided to them to be correct in every aspect, free of ambiguities. The incorrect information boosts the Applicant’s alleged experience levels, and it is probable that the selection committee members were at least partially motivated by this incorrect information to shortlist him to the advertised DH position.
6.6 I find that based upon the incorrect information provided in his application form the Applicant should not have been shortlisted to the position in the first place. I find further that the elimination of the Applicant’s application is not limited to the recruitment process itself but includes elimination at subsequent arbitration processes since this is a hearing de novo.
6.7 Since the Applicant should never have shortlisted he has failed to prove on a balance of probabilities that the Respondent committed an unfair labour practice by appointing the Second Respondent to the advertised DH post.
7. AWARD
7.1 The Applicant’s dispute referral is hereby dismissed.
7.2 There is no order as to costs.