Panellist: Themba Manganyi
Dates of Hearing: 16 August 2022, 18 November 2022,
15 & 16 February 2023, 15 May 2023, 02, 03 & 08 August 2023,
03 October 2023, 04 December 2023, and 24 June 2024
Date of Arguments: 02 July 2024
Date of Award: 30 July 2024
In the Arbitration between
BUYILE CYNTHIA ZONDO APPLICANT
and
GAUTENG DEPARTMENT OF EDUCATION
and 1ST RESPONDENT
SADTU OBO MELODY MASEKO
2ND RESPONDENT
Applicant’s representative: Ms Amanda Moloto
1st Respondent’s representative: Ms Charmaine Trent
2nd Respondent’s Representative: Mr Bongani Ntuli
Details of hearing and representation
1. The Applicant, Ms Buyile Cynthia Zondo (“Zondo”), referred an alleged unfair labour practice dispute (promotion) in terms of section 191(1) of the Labour Relations Act 66 of 1995, as amended (“the LRAA”), to the Education Labour Relations Council (“the Council”).
2. The matter was heard on 16 August 2022, 18 November 2022, 15 & 16 February 2023, 15 May 2023, 02, 03 & 08 August 2023, 03 October 2023, 04 December 2023, and 24 June 2024 at Ekurhuleni North District in Benoni.
3. Ms. Amanda Moloto (“Moloto”), an Attorney from Moloto Moyo Attorneys, represented the Applicant, Ms Buyile Cynthia Zondo (“Zondo”). Ms Charmaine Trent (“Trent”) represented the 1st Respondent, Gauteng Department of Education. Ms Melody Maseko (“Maseko”) was joined in these proceedings as the 2nd Respondent and Mr Bongani Ntuli (“Ntuli”), a SADTU Official, represented Maseko.
4. Parties lead oral and documentary evidence in these proceedings. The Applicant’s bundle was marked as Bundle B. the 1st Respondent’s bundle was marked as Bundle A and the 2nd Respondent bundles were marked as Bundle A1 and A2. At the end of the proceedings, parties requested to submit their heads of arguments in writing on or before 02 July 2024. Parties duly complied. The parties were directed to address the issue of wasted costs in their heads of arguments. Only Trent complied with this directive. The proceedings were mechanically recorded and the recordings thereof were retained by the Council.
Issue to be decided
5. I have to decide whether the 1st Respondent subjected the Applicant to an unfair labour practice by not appointing / promoting her. In the event that I find in the Applicant’s favour, I will have to determine the appropriate relief. The Applicant seeks to be appointed in the impugned position.
Background
6. The 1st Respondent advertised a principalship position at Unity Secondary School. The post number of the position was EN41ED1012. Both Zondo and Maseko applied for this post. They were both shortlisted and interviewed. The interviews were held on 19 November 2021. Emanating from the interview process, the panel recommended three (3) candidates to the School Governing Body (SGB) for ratification. In terms of the order of preference, Maseko was ranked number 1 with a score of 134 and Zondo was ranked number 2 with a score of 102. Following the recommendation, Maseko was appointed into the position with effect from 01 March 2022. At the time of the recruitment process, Zondo was employed as a Deputy Principal (PL3) at Unity Secondary School and she was acting as the Principal (PL4) on a rotational basis. Maseko was employed at Kingsway Secondary School as an HOD (PL2) and she acted as a Deputy Principal (PL3).
7. Displeased with Maseko’s appointment, Zondo served and filed a referral to the Council alleging an unfair labour practice – promotion. She contended that she was the best candidate for the post and that she was supposed to have been appointed. Zondo challenged the procedural and the substantive fairness of the recruitment process. Amongst others, she alleged that the shortlisting and the interviewing panel flaunted the procedures; that Maseko was not supposed to have been shortlisted as she did not possess the necessary qualifications in education and that she misrepresented herself on the GDE 2R Form. As a relief, she sought to be appointed in the position.
Summary of evidence and arguments
8. All the witnesses testified under oath. All the witnesses that the Applicant subpoenaed, presented themselves in these proceedings as and when they were required. What follows hereunder is a summary of the evidence that was presented during these proceedings. As already stated, the proceedings were recorded and parties were provided with the recordings. Therefore, I will only restate the salient points of their testimony.
The Applicant’s case
9. Zondo testified that she has been an Educator since 1992 at Unity Secondary School. She was appointed as a Deputy Principal at the same school since 2013 and she acted as a Principal on a rotational basis. She stated that the reason for her to refer this dispute was because she was informed that Maseko submitted fraudulent qualifications and that she misrepresented herself in her application. She testified that her qualifications included a Bachelor of Education, BA Honours, further Diploma in Education and Diploma in School Management and Leadership. She indicated some discrepancies in the manner in which the SGB scored the candidates. When cross-examined, she could not for certain point out that if had it not been for the flaws in the shortlisting and interview process, she could have been the best candidate. She could not comment when it was pointed out to her by Trent that her application was also misleading. She also could not comment on whether she was the best candidate according to the documents that she submitted.
10. Ms Darling Tshabalala (“Tshabalala”) stated that she was one of the panel members for the recruitment process of the principalship at Unity Secondary School. She explained the shortlisting and the interview processes. She did not know what would happen if one of the candidates submitted copies of copies of qualification certificates. She also did not know what would happen if one of the panel members over scored a candidate. She did not want to comment on the score sheets that she did not score. She confirmed that there were possible answers during the interview. She denied that she was the Director’s representative in the recruitment process. She testified that there was nothing irregular about the shortlisting and interviewing process and that the policy was followed during the process.
11. Mr Mahlako Tladi (“Tladi”) testified that he was initially the chairperson and after Ms Mnyakeni (“Mnyakeni”) recused herself, he was the secretary. He stated that Tshabalala partly assisted as a resource person, but they did not have a clear guideline. He testified that the observer was participating actively in the process and that the chairperson and the District representative seemed to be comfortable about the observer’s participation in the process. He stated that there were no possible answers for interviews. He agreed that the process was not done correctly. However, there was nothing that was done to favour a particular candidate.
12. Mr Carlton Skhosana (“Skhosana”) testified that he was the Principal at Kingsway Secondary School and that Maseko was an Educator at Kingsway Secondary School. He stated that Maseko was an HoD in 2016 at Kingsway and that she acted as a Deputy Principal. He stated that Maseko once applied for the Deputy Principal position. However, she was not appointed because she submitted copies of copies with her application. He refuted the version that he had a personal vendetta against Maseko due to trade union issues.
13. Mr Douglas Jobela (“Jobela”) testified that he was the SGB chairperson and that during the recruitment process, he was a panel member. He stated that it was not his first time as a panel member for the recruitment process. However, it was his first time for the Principal position. He stated that there was a workshop that was conducted online for the principalship post. He stated that Tshabalala introduced herself as a person from the District sent by the Director and she brought the file of candidates with her. He testified that Mnyakeni had to recuse herself because she was conflicted. Tladi moved from being the chairperson to be the secretary and Ms Elizabeth Khaile (“Khaile”) became the chairperson. He testified that the observer was participating in the process and that Tladi reprimanded him (the observer). He confirmed that there were no possible answers that were prepared for the interviews and that he scored the candidates according to his understanding. He stated that according to him, the process was not fair.
14. Mr Thabo Mohoto (“Mohoto”) testified that he was a panel member during the recruitment process of the principalship of Unity Secondary School. He stated that they were virtually trained on how to conduct the shortlisting and the interviews. He stated that Tshabalala was guiding them through the shortlisting and the interviewing processes and that Tshabalala told them that she was appointed by the Director to be a panel member and to oversee the process. He was very contradictory in his evidence on how he scored the candidates. He testified that there were answers to the interview questions. He disputed that the observer participated in the process. He stated that Tladi verified the scores. He struggled to explain how he arrived at the scores that he allocated to candidates. He affirmed that none of the panel members had malicious intentions during the process and that the scores were based purely on the performance of the candidates.
The 1st Respondent’s case
15. Ms Emily Mochela (“Mochela”) was the only witness that testified on behalf of the 1st Respondent. She testified that she was employed in the Human Resources Provisioning Unit at Ekurhuleni North District and that she conducted training for the SGB members. She stated that the principalship post for Unity Secondary School was advertised on 01 April 2021 (see page 164 of Bundle A) under Circular 04/2102 and that Collective Agreement 02 of 2005 was applicable. She explained that she used slides (see Bundle R3 in this regard) to conduct the training and that the training was presented virtually. She stated that for the Principal post, a Departmental representative will be appointed by the Director and she explained the role that District representative must perform in the recruitment process.
16. She stated that she advised the attendees that they must take detailed minutes of the meetings and that interview questions must be decided on the day of the interviews and that there must be possible answers. Further to that, she advised the attendees that they must score candidates and also to deliberate for recommendations. She confirmed that she informed the attendees that further training could be offered. She confirmed that the Department was happy with the recruitment process that unfolded. With regards to shortlisting scores, she stated that Maseko was supposed to have been scored 5 and not 16. As such, she was not supposed to have been interviewed.
The 2nd Respondent’s case
17. Maseko testified that she was appointed as the Principal of Unity Secondary School on 01 March 2022 and that she has been employed for fourteen (14) years as an Educator. She referred to her credential verification report on page 1 and 2 of Bundle A and read out her qualifications. She stated that in terms of Form C, the SGB recommended her for the position and that all the Directors and the HoD signed page 16 of Bundle A to approve his appointment. She disputed that she inflated her years of experience on the application form and stated that she completed the form to the best of her knowledge and understanding and that the panel members scored her according to their understanding. She stated that her managerial experience was higher than Zondo’s. She stated that she acted as a Deputy Principal for eighteen (18) months. However, she was paid for six (6) months. She stated that in her understanding, the panel members said that they did their best to ensure that the process was above board.
18. Khaile testified that she was the chairperson of the recruitment process and that it was not her first time being involved in the recruitment process. She confirmed that the shortlisting meeting sat on 05 and 11 November 2021. She stated that on 05 November 2021, they had to postpone the process due to loadshedding, but that was before they could open the package and they agreed to proceed on 11 November 2021. The NAPTOSA union official was informed telephonically about the postponement. She refuted that Tladi was ever the chairperson of the recruitment process. With regard to the training, she stated that she was satisfied with the training and that there was no one from the SGB who expressed any dissatisfaction about the training. She disputed that the observer played an active role in the process. She stated that there were possible answers. She testified that Zondo was the third recommended candidate and after the deliberations, Zondo was moved to the second recommended candidate. She said that Tladi and Jobela approached her after it was announced that Maseko was the recommended candidate to ask her what could be done to have Zondo appointed as the Principal. She disputed the authenticity of the minutes. She submitted that Tladi said that there were documents that he misplaced and he requested her to complete another attendance register. She stated that she was ignorant to check the designations on the attendance registers. She conceded that she underscored Zondo as per page 67 of Bundle A. she held the view that the process went well and that the dispute started after Maseko’s arrival at the school.
19. Mr Hasani Mashaba (“Mashaba”) stated that he was the observer during the recruitment process. He testified that Khaile was the chairperson of the recruitment process and that Tladi was never the chairperson. He stated that the shortlisting process could not proceed on 05 November 2021 due to loadshedding and they agreed to proceed on 11 November 2021. He disputed the authenticity of the minutes. He testified that the panel deliberated for about an hour about the possible answers and the answers were written on a sheet. He disputed that he actively participated in the process. He submitted that after scoring, Zondo was ranked number 3 and after deliberations, she was moved to number 2. The scores were not changed. He stated that a District Director made a pronouncement during the parents’ meeting that Maseko was not supposed to have been appointed. He submitted that Tladi came to his school for him to sign the attendance register as he (Tladi) indicated that he has lost some of the documents. He stated that he did not check Tladi’s designation when he signed the register. He submitted that he did not see any discrepancies in the entire recruitment process.
Analysis of evidence and arguments
20. This is an award issued in terms of section 138(7) of the LRAA. Therefore, these are brief reasons for my findings and not a verbatim account of the evidence that was adduced in these proceedings. However, it must not be misconstrued that I did not consider all the evidence.
21. Section 185(b) of the LRA prescribes that every employee has the right not to be subjected to an unfair labour practice and section 186(2)(a) of the LRA defines an unfair labour practice as any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee.
22. Relevant to this dispute are also other legislations such as the Constitution of the Republic of South Africa , the Employment of Educators Act 76 of 1998 (“the Act”), the South African School Act 84 of 1996 (“the SASA”) and the Employment Equity Act 55 of 1998 (“the EEA”). There is also the Personnel Administrative Measures (PAM), Collective Agreement no 3 of 2016 and jurisprudence that I must consider in determining this dispute fairly.
23. In City of Cape Town v SA Municipal Workers Union on behalf of Sylvester & others , it was held that:
The overall test is one of fairness, and that in deciding whether or not the employer had acted unfairly in failing or refusing to promote the employee, relevant factors to consider include whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious considerations on the part of the employer; or whether the employer’s decision was motivated by bad faith, was arbitrary, capricious, unfair or discriminatory; 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 or was taken in a biased manner; whether the employer failed to apply its mind to the promotion of the employee; or whether the employer failed to comply with applicable procedural requirements related to promotions. The list is not exhaustive.
24. The Court held in the National Union of Metalworkers of SA v Vetsak Co-Operative Ltd & others that fairness required in the determination of an unfair labour practice must be fairness towards both employer and employee. There are three basic requirements for a fair appointment or promotion. The procedure must have been fair, there must have been no unfair discrimination, and the decision must not have been grossly unreasonable, it needs to be demonstrated that the employer acted irrationally or arbitrarily, was biased or failed to apply its mind or had exercised its discretion arbitrarily or based it on any wrong principle.
25. It is trite that the appointment of educators is regulated by the Act and by the PAM. Vacant posts for educators must be duly advertised, which, according to paragraph 3.1(a)(iii) of the PAM must be non-discriminatory and in keeping with the provisions of the Constitution of the RSA and clearly state that the State is an affirmative action employer.
26. It is common cause that Zondo and Maseko applied for the principalship position of Unity Secondary School. It is also common cause that they were both shortlisted and interviewed. It is further common cause that Maseko was the successful candidate. At the heart of Zondo’s dispute is that Maseko misrepresented herself in the GDE 2R Form; that Maseko did not have the required qualifications for the position. Therefore, she was not supposed to have been shortlisted; and that the shortlisting and the interviewing panel acted unprocedurally.
27. Ordinarily and expectedly, the approach of the 1st and the 2nd Respondent’s representatives in promotional disputes are aligned. This is so because the duty of the 1st Respondent’s representative is to defend the conduct of the 1st Respondent (the employer) in appointing the incumbent and the duty of the 2nd Respondent’s representative is to ensure that it defends the appointment of the incumbent by the employer. However, in this case, the Respondents’ representatives did not have that synergy. Ntuli, through his witnesses, wanted to disprove the employer’s conduct by insinuating that the minutes were distorted and that the Director made a pronouncement in a parents’ meeting that she did not want to appoint Maseko. Even if I were to believe Ntuli’s averments, which I do not believe, at the end, the 1st Respondent appointed the candidate that the SGB recommended as the best candidate.
28. Zondo stated in the summary of her dispute on the referral form that she was informed that Maseko misrepresented her qualifications by submitting fraudulent supporting documents to her application. The verified qualifications were submitted into evidence in these proceedings. If referral forms were pleadings of the case, these proceedings would have ended after the submission of Maseko’s verified qualifications. Moloto correctly argued in her heads of arguments that the dispute was referred on face value without access to the entire recruitment process and should not be taken as the only dispute the commissioner is called upon to determine. She further cited the Commercial Workers Union of SA v Tao Ying Metal Industries and others , where the Court said that:
In deciding what the real dispute between the parties is, a commissioner is not necessarily bound by what the legal representatives say the dispute is. The labels that parties attach to a dispute cannot change its underlying nature. A commissioner is required to take all the facts into consideration including the description of the nature of the dispute, the outcome requested by the union and the evidence presented during the arbitration…The dispute between the parties may only emerge once all the evidence is in.
29. As already stated herein above, Zondo subpoenaed some of the panel members to testify in these proceedings on her behalf and other panel members, including the union observer (Mashaba), testified voluntarily for both Zondo and Maseko. In essence, all the witnesses that testified in these proceedings, except for Skhosana, Mochela, Zondo and Maseko, were at all material times present during the shortlisting and the interviewing processes. However, their testimonies were so contradictory to an extent that one would wonder if they were testifying about the events of the same process.
30. I will now deal with these contractions for context purposes. Tshabalala was adamant that she was appointed as a panel member and not the Director’s representative. Tladi, Jobela and Mohoto testified that Tshabalala was the Director’s representative and even the minutes on page 30 of Bundle B captured her as the representative for the Director. Tladi stated that he was the elected chairperson of the panel at the shortlisting meeting held on 05 November 2021 and Mnyakeni was elected as the secretary. It is not in dispute that Mnyakeni recused herself due to conflict of interest. On the other hand, Mashaba and Khaile testified that Khaile has always been the chairperson throughout the entire processes. Tshabalala, Mohoto, Khaile and Mashaba stated that there were possible answers for the interview questions that were prepared. Tladi vehemently denied that there were possible answers and Jobela supported this version. Only Khaile and Mashaba testified that Zondo was initially ranked number 3 and after deliberations, she was moved to number 2. These are some of the contradictions that emerged in these proceedings that necessitate the interrogation of the credibility, reliability, and the demeanor of the witnesses.
31. I cannot fault Zondo on her credibility as a witness as she testified on the documents that were before her and the information that was at her disposal when she referred this dispute. She remained resolute in her testimony even during cross examination. The same could be said about Maseko. She testified about what she knew. The only negative inference that could be drawn from her evidence is the conduct of her representative (Ntuli) who tried to assist her by raising objections where he saw that she could not respond to questions under cross examination. Tladi, Skhosana, Jobela and Mochela impressed me as witnesses. They were reliable and credible witnesses and they were firm on their versions even through cross examination.
32. On the other hand, Tshabalala was a very hostile witness and she did not want to answervsome of the questions that were posed to her. Therefore, she was not a credible and reliable witness. Mohoto’s testimony was very contradictory and at times evasive. Therefore, he was not a credible and reliable witness. As for Khaile and Mashaba, their testimony was fabricated and not supported by any evidence and they seemed to have a vested interest in the outcome of this matter. In the whole, the testimony of these witnesses resulted in a lot of inconsistencies in their own testimonies and amongst themselves. Therefore, their evidence must be treated with caution.
33. Khaile and Mashaba testified that Zondo was ranked number three before the panel deliberated and then she was ranked number two after the deliberations. This is contradicted by the score sheets on page 66 – 70 of Bundle A. In terms of these score sheets, Maseko scored 134 and Zondo scored 102 and these scores are the same scores as on page 13 of Bundle A (Form C). Therefore, this version cannot be correct. They were the only witnesses who testified on this aspect and this version was never put to any of the witnesses who have already testified. It was held in the President of the Republic of South Africa and Others v South African Rugby Football Union and Others judgment that:
The institution of cross-examination not only constitutes a right, it also imposes certain obligations. As a general rule it is essential, when it is intended to suggest that a witness is not speaking the truth on a particular point, to direct the witnesses attention to the fact by questions put in cross-examination showing that the imputation is intended to be made and to afford the witness an opportunity while still in the witness box, of giving any explanation open to the witness and of defending his or her character. If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness’s testimony is accepted as correct.
34. Mochela’s testimony that she conducted the training workshop to the SGB members was not disputed. She was confident that after the training, the SGB members would be in a position to conduct a flawless recruitment process. Jobela raised his discomfort with the manner in which the training was conducted only in these proceedings. Mochela was not challenged that she extended an invite to the attendees to contact her office if they required clarity or further training. Even Mohoto corroborated this version. I therefore find that the SGB members were sufficiently trained to undertake this recruitment process.
35. It was evident during the interrogation of the shortlisting and the interview score sheets of both Zondo and Maseko that there were inconsistencies in the manner in which each panel member allocated scores for each criteria on the shortlisting score sheets and on the curriculum management criteria on the interview score sheets. According to Mochela, Maseko was not supposed to even have been shortlisted because she was incorrectly scored during the shortlisting process. It must also be noted that Zondo herself was incorrectly awarded a high score in some criteria and a low score in the other criteria. It is unfortunate that the score sheets were not circulated amongst the panel members to ensure consistency in the manner in which scores were to be allocated. In terms clause 2.1 of Collective Agreement 1 of 2005, it is the Department that handles the initial sifting process to eliminate applications of those candidates who do not comply with the minimum requirements for the post as stated in the advertisement. I therefore find that Maseko would have been eliminated to contest for the post during the sifting process if she did not meet the minimum requirements of the post.
36. It was testified that there were candidates that were eliminated during the shortlisting process. However, Mashaba denied this version just as much he disputed the authenticity of the minutes of the recruitment process. I have already dealt with Mashaba’s credibility and I respectfully do not believe that the minutes were manipulated to advance a certain agenda. Since I believe that there were candidates that were eliminated in the shortlisting process, it is my considered view that the panel would have eliminated Maseko in the same manner had it occurred to them that she did not meet their set criteria.
37. It was again only Khaile and Mashaba who testified that Tladi alleged that he lost the attendance registers of the meetings. Page 175 and 176 of Bundle A depicts the attendance registers of 05 and 11 November 2021 for shortlisting. It is evident on the attendance registers that Tladi stated his designation as chairperson and secretary respectively. Tladi’s designation on page 175 dispels the version that he was never the chairperson. Interestingly, Mashaba signed the register of 05 November 2021 immediately after Tladi. Clearly, he saw that Tladi indicated that he was the chairperson. If this was incorrect according to Mashaba, there was nothing stopping him from challenging Tladi on this aspect. To further dispel Khaile and Mashaba’s versions, Khaile indicated on the attendance register for 11 November 2021 that she was the chairperson and, on the attendance, register of 05 November 2021, she indicated that she was a panel member. Having noted all these inconsistencies on Khaile and Mashaba’s testimonies, I conclude that their versions were fabricated and they are not to be believed.
38. In my view and as testified by the witnesses, both the shortlisting and the interview processes were marred with a lot of discrepancies. Mainly on, and not limited to, the scoring part. The evidence that there were possible answers for interviews could not be substantiated through any tangible evidence. If indeed it was true that there were possible answers, same could have been part of the file that was submitted to the District and would have been made available in these proceedings. In their absence, it is safe for me to conclude that there were no possible answers. In the absence of possible answers, the panel members were left to score candidates on their own discretion. It is my considered view that there was no malice on any member of the panel to treat any of the candidates unfairly. Their scoring during the interview was based on their subjective intuition rather than on objectivity. The panel members who scored the curriculum management criterion out of twenty (20) instead of out of ten (10) did so on all the candidates that they have scored. I therefore find that there was a balancing act in this regard.
39. It was held in Reddy v KZN Department of Education and Culture and Others that:
What the various sections show is that the Schools Act makes provision for different juristic persons and functionaries to play different roles in relation to school education. They do not show that the Department is liable for the conduct of governing bodies. The fact that, for example, sec 19 contains provisions which enable the Head of Department to establish programmes aimed at enhancing the capacity of governing bodies and the fact that under sec 22 the Head of Department is given power to intervene in the business of a governing body and withdraw one or more of its functions if reasonable grounds exist to do so does not mean that the Department is liable for the conduct of the governing bodies.
40. The conduct of the recruitment panel was found wanting during the shortlisting and the interviewing process. However, there was no evidence that was presented in these proceedings that suggested that the panel favoured a particular candidate to the disadvantage of other candidates. In my view, the flaws in the process affected all the candidates equally.
41. Section 28(2) of the Constitution provides that the best interests of the child are of paramount importance in every matter concerning the child. In Settlers Agricultural High School v Head of Department: Department of Education, Limpopo & Others the court held that section 28(2) of the Constitution is also applicable in promotion disputes in the education sector.
42. This dispute dates back to as far as the year 2022. Both the Applicant and the 2nd Respondent attended these proceedings without fail on all the occasions that the matter proceeded. It must be borne in mind that the Applicant and the 2nd Respondent hold managerial positions in the same school. Therefore, their attendance in these proceedings meant that they could not perform their functions that they were employed for. That is, to ensure that the best interests of the children are met. With this said, I do not find it rationale to remit this matter to the 1st Respondent to redo the recruitment process as I do not find the 1st Respondent’s decision being irrational, grossly unreasonable or shows any mala fides. Similarly, in my view, the conduct of the SGB did not favour any particular candidate over the other candidates. Their ineptitudes were even handed to all the candidates. My view finds support from the evidence of most of the witnesses who declared the process as fair.
43. Clause 32 of Collective Agreement no 3 of 2016 stipulates that 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. Both Zondo and Maseko were subjected to the same processes and at the end, the SGB found Maseko to be the most suitable candidate for the position. Therefore, I find that Zondo failed to proof on a balance of probabilities that the 1st Respondent conduct was unfair by not appointing her.
44. Parties were directed to address me on the issue of wasted costs in their closing arguments. As indicated herein above, only Trent addressed me on this issue. It cannot be disputed that the delays and the several postponements were occasioned by the 2nd Respondent’s representative. However, he submitted medical certificates on the two occasions that he did not attend the proceedings. I am therefore disinclined to order costs.
Award
I find
45. That the 1st Respondent did not subject the Applicant, Ms Buyile Cynthia Zondo, to an unfair labour practice.
46. That the Applicant is not entitled to any relief.
47. There is no order as to costs.
Arbitrator: Themba Manganyi