Panelist: Malusi Mbuli
Date of Award: 26-07-2024
In the ARBITRATION between
NAPTOSA obo SIFUMENE SWELI & BONGANI SAKWE
(Applicant)
And
DEPARTMENT OF EDUCATION – EASTERN CAPE
(1st Respondent)
F. M. MANYEWU
(2nd Respondent)
SUMMARY: Labour Relations Act 66 of 1995 – alleged unfair labour practice relating to promotion in terms of section 186(2)(a) – whether the appointment of the 2nd respondent and non – appointment of the applicant was unfair and constitutes an unfair labour practice as contemplated in section 186(2)(a) of the LRA.
The appointment of the 2nd respondent and the non – appointment of the applicant was procedurally and substantively fair and did not constitute an unfair labour practice as contemplated by section 186 (2) (a) of the LRA as amended.
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter came before the ELRC for arbitration in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 (promotion dispute). It was set down for arbitration hearing at the O. R. Tambo Inland District –in Umtata on a number of days until the 17th of July 2024 before Commissioner Malusi Mbuli.
2. The applicants Mr. Sifumene Sweli & Mr. Bongani Sakwe attended the hearing and were represented by Mr. Aaron Mhlontlo an official of the applicant’s trade union NAPTOSA.
3. The 1st respondent, the Department of Education – Eastern Cape was also present at the hearing and was represented by Mr. Linda Matoti, an official of the respondent.
4. The 2nd respondent Mr. F.M. Manyewu was also present at the hearing and was represented by Mr. Ayanda Tyantsi an official of the 2nd respondent’s trade union SADTU.
5. The matter was finalized on the 17th of July 2024 and the parties delivered their closing arguments orally on the same day the 17th of July 2024.
ISSUE TO BE DECIDED
6. I am required to determine whether the appointment or promotion of the 2nd respondent and non-appointment of the applicant was unfair and constituted an unfair labor practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015, and if so the appropriate remedy.
BACKGROUND TO THE ISSUE
7. The applicants, Mr. Sifumene Sweli & Mr. Bongani Sakwe applied for the position of a Principal post level 4, P3, advertised by the 1st respondent in an open bulletin of 2022 at Lyndale Primary School – Department of Education – Eastern Cape.
8. The applicant Mr. Sifumene Sweli was shortlisted and interviewed for the said position but was not appointed to the said position whereas Mr. Bongani Sakwe was not shortlisted and therefore not interviewed.
9. The interview panel recommended or referred 5 names to the Department of Education – Head of Department and both the 1st applicant Mr. Sifumene Sweli and the 2nd respondent were recommended 1st applicant as no 5 candidate and the 2nd respondent was the 1st recommended candidate.
10. The 2nd respondent was then appointed and the applicant was not appointed. It is not disputed that the 2nd respondent met the minimum requirements of the post advertised and that further his qualifications and experience were appropriate for the position in question.
11. The Department of Education – Eastern Cape appointed the 2nd respondent Mr. F. M. Manyewu who is now occupying the position. The applicants felt that the process that led to the appointment of the 2nd respondent and their non – appointment was unfair and constituted an unfair labour practice as envisaged by section 186 (2) (a) of the LRA.
12. The applicants’ dispute is premised mainly on procedural fairness as well as substantive fairness and the applicant’s argument is that the Department of Education – Eastern Cape acted unfairly in appointing the 2nd respondent and pray that the process be reversed or they be compensated.
13. The applicants then referred an unfair labour practice dispute to the ELRC and the matter was enrolled for arbitration and finalized on the 17th of July 2024 and the parties agreed to deliver their closing arguments on the same day 17th of July 2024 and both parties delivered their closing arguments.
SURVEY OF EVIDENCE
(Please note that this the summary of the evidence that was led at the hearing and does not represent the verbatim submissions of the witness)
Applicant’s submissions.
14. The 1st applicant Mr. Sifumene Sweli took the witness stand and testified to the following effect. He started working for the Department of Basic Education on the 08th of August 1997 as a post level 1 educator at Tyumbu Junior Secondary School.
15. He became an H.O.D. at the Umtata District, Dalubuhle School in 2006 and later became a Principal at Tabase Junior Secondary School. He averred that he is now working as a Principal at Ntshele Primary School and has a total of 27 years teaching experience of which 18 years of them is at a management level.
16. He stated that he majored in Mathematics, Science and languages and admitted that he did not get good results in his school because there are a number of reasons that contributed to the bad results at their school, e.g. the school is a rural school and there was no subject advisor in the district.
17. He stated that amongst his qualifications are College Mathematics, Senior Primary Teachers Diploma, PEU Degree, Bachelor of Education Honours and Educational Management and that he has been a Principal P2 for more than a decade. The 1st applicant averred that he applied for the Principal post at Lyndale Primary School because it was advertised at P3 a level higher than the post he occupied.
18. He stated that for that reason the said post was a promotional post because it was higher in terms of levels, status and remuneration and that he was looking for more responsibility. He confirmed that when he applied he submitted his application at the Human Resources Department of the O. R. Tambo Inland District office and he signed the attendance register.
19. He averred that the respondents sifting process was flawed because it did not meet the directives of the PAM document and that the sifting and shortlisting criteria was flawed and unfair. He testified that the 2nd respondent was not supposed to have been automatically shortlisted because he had not acted in that position for a period of more than 12 months.
20. He testified that he was shortlisted and interviewed for the position of a Principal but was not appointed to the said position and the 2nd respondent was appointed. He averred that this position was advertised for the 1st time and the advert was cancelled because the SGB was not happy because Mr. Manyewu was not shortlisted.
21. He stated that the interviews were rescheduled because the parent component was not present and they wrote several letters to the Department of Basic Education but there was no response to the complaints that they filed. He averred that after the interviews there were 2 candidates that were recommended to the Department of Education but confirmed that there were 5 names on the referral to the Head of Department.
22. He averred that Mr. Manyewu was scored the highest and recommended as a 1st candidate and confirmed that the questions that were asked were fair and simple and were talking to his qualifications and experience. He further stated that he has also been used as an examiner and he answered all the questions satisfactory. He testified that he questioned the 2nd advert and he stood no chance to be appointed and this is the reason why he could not make it to the 1st three and became no 5.
23. He confirmed that both himself, the 2nd respondent and the 2nd applicant met the minimum requirement of the job, the focus is on the scores and confirmed that the ratification meeting of the SGB was held accordingly. At cross examination he confirmed that the 2nd respondent could have performed better than himself. He further confirmed at cross examination that the 2nd respondent was appointed to act and that the panel of interviewers was appointed by the SGB that is in good standing
24. The applicant’s representative then called the 2nd applicant Mr. Bongani Sakwe who testified that he passed grade 12 in 1990, in 1992 enrolled at Cicira studying Senior Primary Teachers Diploma, enrolled at Nelson Mandela Metropolitan University for Bachelor of Education majoring in Mathematics and Physical Science.
25. He later obtained a Bachelor of Education Honours Degree majoring in in Educational Management Law and Policy. He averred that he was then appointed as a Deputy Principal at Mkhenketho Junior Secondary School in 2015 and later as a Principal in the same school to date.
26. The 2nd applicant averred that he applied for the Principal post at Lyndale Primary School because it was advertised at level P3 a level higher than the post he occupied. He stated that his school is a P2 level school and for that reason the said post in question was a promotional post because it was higher in terms of levels, status and remuneration and that he was looking for more responsibility.
27. He stated that he qualified for appointment to the said post because he met all the minimum requirements of the job because the advert required qualifications in Management. He confirmed that when he applied he submitted his application form, Curriculum Vitae, copies of qualifications, SACE and ID copies at the Human Resources Department of the O. R. Tambo Inland District office and he signed the attendance register.
28. He averred that the respondent did not inform him whether the form was complete or not, or whether there was anything wrong in his application and he was not shortlisted and that denied him from competing for the said post. He testified that the 2nd respondent was shortlisted automatically even though he did not have 12 months experience acting in the Principal position in question.
29. He testified that it was unfair for him not to be shortlisted as he met the criteria. He reiterated that the 2nd respondent was not supposed to have been automatically shortlisted because he had not acted in that position for a period of more than 12 months. He further stated that he holds a Bachelor of Education Honours which the others do not possess and he should have been given a chance to compete.
30. He stated that some shortlisted candidates like Songelwa were shortlisted when they did not have appropriate qualifications and others had no management qualifications and experience. At cross examination he confirmed that he was not the best candidate of all the candidates but some of those who had been shortlisted.
31. He confirmed further that his CV did not indicate that he was already a Principal and this was not clear to people who were shortlisting and that the certification date of his certificates was later than the date when the application was filed on the 25th April 2022 whereas the certification was done on the 26th of April 2022.
Submissions by the respondent
32. The applicant’s representative then closed their case and the respondent’s representative then called their 1st witness Mr. Thembelani Qwase who testified as follows: He works for the respondent as a Chief Personnel Officer and is aware of the advertisement that appeared on the 2022 bulletin for Lyndale Primary School.
33. He averred that he was responsible for receiving and accepting the application forms for applications including the application for the Principal post at Lyndale Primary School. When they do this work they plan before and after the closing date, prepare the master list for the post and post numbers. After the applications are captured on the master list then there will be sifting which is aimed at eliminating those applicants who do not meet the minimum requirements as contained in the advert.
34. He stated that for the post of the Principal sifting is done at school level and for that reason the master list was sent to the school and each application was acknowledged. After the sifting is done then the H.R. Route form is prepared standardized and the next process will be the shortlisting of candidates based on their qualifications and experience and recommendation is sent to the Department.
35. He averred that the Cluster Chief Director is delegated to do that job and the Principal posts are prioritized and their adverts are issued on quarterly basis so that they cannot be delayed. He testified that there is a cut off date that is issued before the next bulletin.
36. He confirmed that on scrutinizing the documents that related to the acting period of the 2nd respondent Mr. Manyewu acted for more than a period of 12 months in fact gave 17 months as the period in which the 2nd respondent acted in the said post.
37. He testified that Mr. Manyewu met all the minimum requirements of the post and was given an opportunity to compete because he acted in the said post for a period of more than 12 months. He averred that after the interviews were conducted, there were 5 candidates that were referred or recommended to the department of education tor appointment.
38. He stated that all the applications must be submitted before the closing date and also stated that Mr. Bongani Sakwe’s application was submitted on the 25th of April 2022 but his documents including certificates were certified on the 26th of April 2022 a day after they were submitted. He averred that the forms were captured on the register with names and signatures on it.
39. He also stated that when the candidates submit documents they sign a declaration on the application form confirming that the documents and information they submit is correct and those documents are used when the sifting process is conducted. He stated that in his application Mr. Sakwe indicated that he was a Deputy Principal Post level 3 whereas he is a Principal post level 4.
40. He also indicated that one of Mr. Sakwe’s certificates did not have the date of issue and all these might have influenced the shortlisting panel in failing to shortlist him. He stated that in the O.R. Tambo District there is a local agreement that sifting for the Principal post must be done at the school level but did not produce that agreement or minutes of the meeting that agreed to that. He further admitted that the District has no authority to change policy.
41. He confirmed the qualifications of the 1st, & 2nd applicant together with the 2nd respondent and stated that all of them met the minimum requirements for the post in question and that all of them were eligible for appointment.
42. The 2nd witness of the respondent was Mr. Siyambusa Nodinga who testified that he is a SADTU site steward and was appointed to observe the interviews for the Principal post at Lyndale Primary School in respect of both the 1st and 2nd advertisement.
43. He stated that in relation to the 1st advert the appointment could not be finalized because the post was incorrectly advertised in that it did not capture the requirements of the post as they have discussed and agreed and this issue was raised before the process of recruitment could start.
44. He stated that the SGB wanted a candidate with Maths, Science and Management qualifications and experience because this was identified as a curriculum need of the school and the parents wanted the school to improve their performance in Maths and Science.
45. He stated that Mr. Deleki and others wanted the recruitment process interviews to continue but it was clear that the process for appointment would be contested and the panel decided to cancel the interviews and re-advertised the post.
46. He averred that on the 2nd recruitment the process was fair starting from sifting, shortlisting and interviews and all the candidates that were shortlisted including the applicants and 2nd respondent qualified for appointment to the said post because they met the minimum requirements.
47. He confirmed that the 2nd applicant Mr. Bongani Sakwe was not shortlisted and in fact sifted out because his application was submitted on the 25th of April 2022 but the supporting documents were certified on the 26th of April 2022 a day after the application was submitted. Also that his application form reflected that he was currently working as a Principal but the CV stated that he was a Deputy Principal and not the Principal and that one of his certificates did not reflect the date when it was issued.
48. He stated that the panelists who are sifting decided to sift his form out because of those reasons and the applicant or candidate has a responsibility to make sure that his application is in order especially on material items. He stated that his management certificate was not authentic in the eyes of the sifters and this was critical for the decision that the sifters had to make.
49. The witness added that Mr. Swell made some misrepresentation on his application and stated that Mr. Sweli was shortlisted but not appointed because he did not perform as well as the 2nd respondent in the interviews. He further confirmed that sifting was done at a school level because of the local agreement that the parties had but also did not produce the agreement he was referring to.
50. The 3rd witness of the respondent was Mrs. Eunice Nobantu Samente who testified that she works as an administrative officer in the Human Resources Department and Personnel section of the respondent. Her evidence was really to point out that she prepared appointment letters for the acting of the 2nd respondent and mainly talking to the mistakes that were found on those appointment letters.
51. The significance of her evidence was to deal with the period for which the 2nd respondent was acting i.e. whether the 2nd respondent acted for a period of more or less than 12 months. She further confirmed that she was not the only one preparing the memorandums for the acting appointments of the 2nd respondent.
52. The 4th and last witness of the respondent was Ms. Siphokazi Mase who testified that she was a member of the SGB from 2022 to 2024 and she stated that the members of the previous SGB were elected in the next incoming SGB. She could remember the recruitment of the post of the Principal and she was a chairperson of the panel of interviews.
53. She averred that the requirements of the post were qualifications and experience in Management, Mathematics and Science and that the SGB wanted vast knowledge and experience in these areas. She stated that she was not part of the SGB when the 1st advert was issued and did not know why it was cancelled but was told that the SGB was not happy about the requirements that appeared on the advert because they did not talk to their needs and how they have discussed the matter.
54. She disputed that the 1st advert was cancelled and 2nd advert crafted to suite the 2nd respondent because they did not even know her qualifications and the documents were brought by DCES and confirmed them with them. She testified that in the interviews they looked at the qualifications, experience and performance at the interviews.
55. She confirmed that when they were sifting and shortlisting they found out that some certificates did not have the dates of issue and were certified after the date of submission which is an anomaly. She testified that such applications were sifted out because they had major irregularities in them.
56. She stated that this related particularly to the application of Mr. Bongani Sakwe and that his CV was not consistent with the application form in so far as to whether he occupied a position of a Principal or Deputy at the time of the application.
ANALYSIS OF EVIDENCE AND ARGUMENT
57. This matter was referred to the ELRC in terms of section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015.
58. Section 185 (b) of the Labour Relations Act 66 of 1995 as amended in 2015 provides that:
– every employee has a right not to be subjected to an unfair labour practice. The applicant feels that the employer has committed an unfair labour practice by failing to shortlist the applicant.
59. The three candidates in question in this dispute, the applicants and the 2nd respondent are all eligible for appointment to this position. The applicants applied for the Principal post at Lyndale Primary School in the O.R. Tambo Inland District in Umtata in the Eastern Cape.
60. At the time of the application the applicants were Principals, level P2 at other schools and the position they applied for is level grading P3 School. The 1st applicant was shortlisted, interviewed and was placed no 5 in terms of the scores. The 2nd applicant was not shortlisted and did not participate in the interviews and obviously not appointed.
61. It is not in dispute that in terms of the Regulations, all decisions taken by the School Governing Body must be procedurally fair. Also it is not disputed that the SGB meetings must be properly convened and be presided over by the SGB chairperson.
62. There was a proper ratification meeting in this appointment which made recommendations to the department by the SGB of the school and this is confirmed by the parties. The applicants’ representative pointed to a number of irregularities in the process as stipulated in the South African Schools Act and the Employment of Educators Act that according to him materially compromised the selection process that led to the appointment of the 2nd respondent and non – appointment of the applicants.
63. The applicants argument on procedural fairness is that the 1st recruitment was cancelled because the SGB wanted the 2nd respondent Mr. Manyewu to be accommodated and ultimately appointed, there was no proper sifting of candidates in that it was not done by the department in line with the PAM document, the executive committee of the SGB was properly elected, the 2nd respondent was not supposed to have been automatically shortlisted because he did not have 12 months period acting in the said post.
64. That the recommendation made to the Head of Department of the respondent contained 2 names i.e. less than 3 names, the panel of interviews was biased in favor of Mr. Manyewu the 2nd respondent, the 1st applicant Mr. Sweli performed well in the interviews and was not appointed, 2nd applicant Mr. Bongani Sakwe was not shortlisted and he was the best candidate of all the candidates. He argued that the 1st applicant prays for setting aside of the selection process or compensation and the 2nd applicant prays for compensation.
65. All the parties as indicated above agree that both applicants and the 2nd respondent met the minimum requirements of the post in question and I have satisfied myself that this is the case because this was placed in dispute. I agree with the parties that all the 3 candidates who are a subject of this dispute were eligible for appointment to the said post. This simple means that the appointment of the 2nd respondent was substantively fair.
66. In respect of the respondents failure to shortlist the 2nd applicant Mr. Bongani Sakwe convincing evidence was led as to the reasons why Mr. Sakwe was not shortlisted and in fact sifted out and I accept that evidence. This evidence relates to the fact that the 2nd applicant Mr. Bongani Sakwe was not shortlisted and in fact sifted out because his application was submitted on the 25th of April 2022 but the supporting documents were certified on the 26th of April 2022 a day after the application was submitted.
67. The other reason is that his application form reflected that he was currently working as a Principal but the CV stated that he was a Deputy Principal and not the Principal and that one of his certificates did not reflect the date when it was issued.
68. The panelists who are sifting decided to sift his application out because of those reasons and the applicant or candidate has a responsibility to make sure that his application is in order especially on material items and in the eyes of the sifters his management certificate was not authentic even though until the original was produced at the arbitration hearing. This was a critical for the decision that the sifters had to make and there is nothing unfair about it at least on these facts.
69. In relation to the 1st applicant he was shortlisted and interviewed but not recommended as no 1 by the SGB for appointment by the Department of Basic Education Eastern Cape. It is not disputed that sifting was done at a school level because of the local agreement that the parties had and also that this agreement not produced at the hearing.
70. The parties seem to have arranged that sifting must take place at a school level and this arrangement has to be respected except if it can be demonstrated that one of the candidates was or would suffer prejudice and in this matter none has been argued or demonstrated.
71. There is no real evidence that the SGB interview panel or scorers treated the 1st applicant unfairly or scored the applicant unfairly and the applicant’s representative’s argument that the 1st applicant was the best candidate cannot be accepted as it is not supported by evidence except the applicant who believes that he performed well.
72. The applicant argues that the 1st advert was cancelled because the SGB wanted to accommodate and appoint Mr. Manyewu. Again this claim is not backed by evidence from the applicant’s side instead the 2 respondents witnesses led undisputed evidence that the 1st advert did not meet the expectations of the SGB in relation to the requirements of Management, Mathematics and Science. This argument as a result is rejected.
73. The applicants’ representative argue that the executive committee of the SGB was not properly elected, this issue was not properly ventilated or established but again there is no evidence that the 1st applicant was prejudiced as a result of this allegation. It therefore cannot render the process unfair. The issue that the 2nd respondent was not supposed to have been automatically shortlisted because he did not have 12 months period acting in the said post is not accurate. Evidence presented before me both documentary and orally prove that the 2nd respondent has been appointed to act in this position for about 17 months.
74. The document containing the recommendation made to the Head of Department of the respondent contained 5 names but the 2nd respondent and the other candidate were top on the list. The Head of Department could appoint anyone of the 5 presented candidates but had to provide reasons for deviating from the recommendation.
75. There are other considerations which the panel will consider and that the applicants claim that he performed better than the 2nd respondent is unfounded because he was not in the interview room when the 2nd respondent was interviewed. The applicants claim that the scorers were biased is also not based on evidence and is accordingly rejected.
76. Generally the employees do not have the right to employment or promotion but the protection under section 186 (2) (a) relates to unfairness that happens when the employer seek to promote or employ an employee, the words promotion and employment are used synonymous for the purposes of this section.
77. For the reasons mentioned above I have no reason to disbelieve and reject the evidence of the respondents witness and as such the respondent’s version remains the most credible and acceptable version. It is also worth noting that in this type of a dispute the applicant bears the onus to prove that the respondent has acted unfairly and his conduct constituted an unfair labour practice.
78. In SAMWU obo Damon v Cape Metropolitan Council (1999) 20 IU 714 (CCMA) AT 718 A the court said that in an unfair labour practice dispute the employee bears the onus to prove the unfair labour practice complained of and in order to do that he must examine the reasons as to why he was not promoted and demonstrate the defect in the employer’s reasoning.
79. This means that the employee must demonstrate that he was overlooked for promotion on the basis of some unacceptable, irrelevant or invidious comparison. He must show that on the criteria used to select another person above him, he stood head and shoulders above that person. This is not the case in this dispute and in fact the opposite is true.
80. The fairness required in the determination of an unfair labour practice must be fairness towards both party’s employer and employee. In Provincial Administration Western Cape (Department of Health & Social Services) v Bikwana & others (2002) 23 ILJ 761 (LC) paragraph (29)-(32) the Labour Court held that: There is considerable judicial authority supporting the principle that courts and adjudicators will be reluctant, in the absence of good cause clearly shown, to interfere with the managerial prerogative of employers in the employment selection and appointment process. Courts should be careful not to intervene too readily in disputes regarding promotion and should regard this area where managerial prerogatives should be respected unless bad faith or improper motive such as discrimination is present.
81. In this dispute I have no reason to disbelieve the evidence of the employer witness and prefer that of the applicant. The 2nd respondent met all the requirements of the post as envisaged in the advert and this is not disputed. From the argument above it then follows that the decision by the respondent to appoint the 2nd respondent and not to appoint the applicant was procedurally and substantively fair based on the evidence and argument advanced above.
82. The 2nd respondent was recommended by the panel and SGB as a no 1 candidate and the respondent has to appoint the 2nd respondent unless there is a valid and reasonable explanation for disregarding that recommendation. The applicant has failed to demonstrate that there was an invalid, unreasonable and unfair reason why the respondent appointed the 2nd respondent.
83. The respondent has the authority and discretion to appoint but has a responsibility to exercise such discretion reasonable and fairly. In Arries v/s CCMA & others (2006) 27 ILJ 2324 (LC) the court held that there are limited grounds on which the arbitrator, or court, may interfere with the discretion which had been exercised by a party competent to exercise that discretion.
84. The reason for this is clearly that the ambit of the decision – making powers inherent in the exercising of discretion by a part, including the exercise of the discretion, or managerial prerogative of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised.
85. The court held further 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.
86. In City of Cape Town v/s South African Municipal Workers Union obo Sylvester & others (2013) 34 ILJ 1156 LC, (2013) 3 BLLR 267 (LC) it was held with reference to the Arries decision above, that the overall test is one of fairness. In deciding whether the employer has acted fairly in failing or refusing to promote the employee it is relevant to consider some of the following factors.
– Whether the employer’s decision was arbitrary, or capricious, or unfair.
– Whether the employer failed to apply its mind to the promotion of the employee.
– Whether the employer’s decision not to promote was motivated by bad faith.
– Whether there were insubstantial reasons for the employer’s decision not to promote.
– Whether the employer’s decision not to promote was based upon a wrong principle.
87. If one looks at how the discretion was applied by the respondent in this case it is clear that the appointing authority was fair and reasonable when he made the appointment. The most important question that we have to ask ourselves is whether there are reasonable prospects of the SGB changing its recommendation and the Department changing is approval.
88. The applicant’s representative argument in his closing arguments states that the decision not to shortlist, recommend and appoint the applicants was incorrect and unfair is rejected as it does not have basis and not supported by evidence. The applicant has not managed to demonstrate that one or some of the factors for consideration in the decision above exist for the applicants to challenge the application of the employer’s discretion.
89. In Nutese v/s Technikon Northern Transvaal (1997) 4 BLLR 467 (CCMA) it was said that the employees have no right to promotion and as long the employer can provide a rational basis for its decision, appointment or promotion will not stand to be set aside. Similarly the applicant has no right to employment or protective promotion.
90. The same principle was confirmed in Noonan v SSSBC and others [2012] 33 ILJ 2597(LAC), where 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 unreasonably denies an employee an opportunity to compete for a post constitutes an unfair labour practice.
91. If an Employee is not denied an opportunity to compete for the 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 reason can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying the interference with the decision to appoint “.
92. There is a clear basis for the respondent to act in the manner described above and the manner in which this discretion was exercised justifies the appointment of the 2nd respondent because discretion was not exercised in an arbitrary manner, for insubstantial reasons or without applying the mind and obviously not unfairly.
93. In SAPS v Safety and Security Sectoral Bargaining Council, Robertson NO and Noonan (unreported Labour Court judgment Cheadle AJ, Case Number P426/08, dated 27 October 2010); Ngcobo v Standard Bank of South Africa and Others (D439/12) [2013] ZALD 33 (25 September 2013), the Court held that 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, he or she should generally, at least demonstrate that there was conduct that denied him or her a fair opportunity to compete for the post, or conduct that was arbitrary or motivated by an unacceptable reason, or that the successful candidate was dishonest and misled the interview panel. The same court held further that every applicant must carefully apply his or her mind to the application form and complete it honestly and diligently to compete fairly with other candidates.
94. In this regard it must be emphasized that the 2nd respondent has no duty to demonstrate that he was the best candidate of all the candidates but just that he met the minimum requirements and is eligeble for appointment. This burden only rests on the shoulders of the applicant who believes that the failure to appoint him was unfair because the applicants bears that onus and in this dispute both applicants have failed to discharge such onus.
95. I do accept that the ratification meeting was done and the fact that there was no complaint registered at the point of shortlisting interviews does not automatically translate to a fair process. Similarly the fact that union representatives declare process fair from shortlisting to the recommendation does not mean that the process cannot be challenged.
96. The irregularity however must be of a materiel nature in order to render the process unfair, minor irregularities will not inevitably call for interference with the discretion of the employer. In this appointment there are no materiel irregularities in the process that can render the process unfair and justify interference. We are not looking for a 100 % fair or a perfect process but the process must be closer to perfection.
97. It is not disputed that the applicants and the 2nd respondent met the requirements of the post as envisaged in Regulation 11 of the Employment of Educators Act 76 of 1998. From the argument above and the evidence led I find that the decision by the respondent to appoint the 2nd respondent and not to consider to appoint the applicant was substantively fair.
98. The process that led to the appointment of the 2nd respondent is not affected by any materiel procedural irregularities that can justify interfere with the exercise of the respondent’s discretionary power in appointing the successful candidate and the appointment of the 2nd respondent in this matter stands.
99. In the circumstances I make the following award.
AWARD
100. The appointment of the successful candidate referred to as the (2nd respondent) Mr. F. M. Manyewu and non – appointment of the applicants, Mr. Sifumene Sweli & Bongani Sakwe, by the respondent, the Department of Education Eastern Cape, was fair and did not constitute an unfair labour practice as envisaged by section 186 (2) (a) of the Labour Relations Act 66 of 1995 as amended in 2015.
101. The applicant’s dispute referred to and dealt with here under case number ELRC306-23/24 EC is dismissed and the applicants are not entitled to any relief.
102. I make no order as to costs at this stage.
Signature:
Commissioner: Malusi Mbuli