Panellist/s: Seretse Masete

Case No.: ELRC 778-24/25LP

Date of Award: 07 /03/2025

In the ARBITRATION between:

Makhei Jonas Maponya

(Union / Applicant) And

Department of Education : Limpopo

(Respondent)

Union/Applicant’s representative: Bianca Perry (Attorney)
Union/Applicant’s address:
Telephone:
Cell:

Respondent’s representative: Nthabiseng Rasebotsa

Respondent’s address:
Telephone:
Cell:

Particulars of the proceedings and representation

1. The matter was held on 14 February and 07 March 2025 at the employer’s premises in Polokwane and Tzaneen respectively.
2. The Applicant, Makhei Jonas Maponya (employee) was represented by Bianca Pery, an Attorney from Thomas and Swanepoel Attorneys, while the respondent, the Head of Department of the Limpopo Department of Education, (employer), was represented by Nthabiseng Rasebotsa.
3. The proceedings were in English and digitally voice recorded.

Issues to be determined.

4. Whether or not the conduct of the employer by failing to shortlist the employee constituted an unfair labour practice.
5. To determine the fair and equitable remedy in terms of s194(4) of the Labor relations Act 66 of 1995 as amended, the Act, should it be found that the conduct of the employer constituted an unfair labour practice against the employee.

Background and Nature of the dispute

6. The employee was employed as an educator in February 1995 at Malesiba Secondary School within Lepelle 4 Circuit Mopani district, earning R39307-25 per month at the time of the dispute.
7. He alleged that the employer followed incorrect procedure during the shortlisting process which resulted in his (employee’s) failure to be promoted.
8. He sought the promotion of the second respondent to be recalled. Secondly that he (employee) be shortlisted and be interviewed afresh for the post, before another committee. Thirdly, he sought to be paid a maximum compensation determined on his current basic salary.
9. He was not asked to submit the original certificates during the shortlisting. The reason for not appointing him were incorrect.
10. The employer challenged the employee’s assertion citing that the procedure followed was fair, there was nothing unprocedural and the relief sought cannot be entertained. The appointment of the second respondent was fair and approved by the district director. There were discrepancies in the employee’s application, and witnesses would come and corroborate. The discrepancies could not be ignored.
11. The employer submitted one bundle of documents marked R and called three witnesses. The employee testified as a sole witness and submitted one bundle of documents marked A as well as an annexure thereto.
    Common issues. The employee was employed at Malesiba School as the departmental head for 14 years. The post in dispute was advertised on 17 April 2024. He applied and he was successful during phase one of the process. The shortlisting panel did not shortlist him during phase two, hence the dispute.
    Disputed issues. Unfair procedure in phase two.

Survey of evidence by the employee party.
The employee, Makhei Jonas Maponya, testified under oath as follows.

12. He was employed as a departmental head (DH) managing the social sciences department at Malesiba Secondary School. The advert of the disputed post was on page 2 of bundle A and the requirements were on page 3 of the same bundle. His application was composed of all the documents as per paragraph 2 and 3 on the above pages of bundle A. He also filled in the application form. The shortlisting process took place at the school, but he was not invited to participate in the interviews. While waiting for the outcome of the shortlisting process, the employer had already appointed the second respondent. The SGB called the staff meeting and informed them that appointment has been made. He was not informed as to why he was not shortlisted. He was told that 28 candidates applied for the post and only five were shortlisted. The appointed candidate was a CS1 educator while he (employee) was a departmental head no1.
13. The scores of the shortlisting process were on page 50 of bundle A. He was given zero score on criteria c on the same page. Had the panel considered his certificates, he would have scored 29. On page 53 of the same bundle, there was a collective agreement to provide guidelines in the shortlisting process. Page 55 was very crucial for the dispute. Extract of the collective agreement was on page 65 of bundle A. His certificates were attached on page 14 of bundle A. He participated in workshops and courses as per page 22 to 28 of bundle A, which supported dimension / criteria c on page 49 of bundle A. He was supposed to be at REQV16. paragraph 9(d) on page 50 of bundle A, was supposed to have been calculated as 3 x 2 which would give 6. He showed the certificates to the HR officials who were dealing with the grievance. The reasons for rejecting his grievance were set out on page 44 of bundle A. The certificates were not mentioned in their reasons for scoring him zero, see bundle 44 of bundle A. When applying for the DH position in the previous years, he used the same qualifications. He once applied for a principalship post, and he was shortlisted having used the same qualifications. The acting letter, should come from the department, and the 2nd respondent’s letter came from the principal the principal.
14. After packaging one’s applications, they would be submitted. His applications were verified and were in order. It was put to him that his applications showed some discrepancies. He denied that. He was asked if he went through the CV since he said it was typed by someone. He answered that he went through it quickly so. He confirmed that his identity numbers on bundle R and Bundle A were different. He indicated that the correct Id number was the one on page 31 of bundle A. His first names were also different. Both his CV’s were typed at the internet café. The Id number on page 61 of bundle R, was like the one on bundle A. His Id number on the certificate on page 62 of bundle R was different. The Id number on his certificate on page 63 of bundle R, was the same as the one on page 61 and 63 of bundle R. His correct name was Makgei but he preferred to use Makhei. He conceded that Page 17 of bundle R, paragraph 2.7 indicated that employees must make sure that the information on the candidates’ applications must be correct. He was asked again as to whether he did verify his applications, and he answered that his believe was that the application was correct. He further conceded that it was only then, that his eyes were opened. It was put to him that the arbitration was about the discrepancies on his certificates, names and Id numbers. He denied. It was put to him that the scores were not the reasons for disqualifying him but the discrepancies. He denied that and added that, the reason was the error by the panel in scoring him. His argument was that the panel did not mention the reason of discrepancies.
15. The grievance was dismissed on the bases of discrepancies. There was a meeting about that grievance, but it was dismissed. It was put to him that the district director approved the findings that his application had discrepancies. He denied. It was put to him that the second respondent’s appointment signed on 16/10/2024 came after the grievance on 9 October 2024 has been dealt with. The certificates on page 22 and 25 of bundle A, were handwritten. He was asked what his expectation was. He answered that the panel did not talk about the discrepancies. It was put to him that witnesses would come and testify that the reason not to have shortlisted him was the discrepancy in his application. He denied that there were discrepancies in his application.
16. The certificate of SADTU was not part of the requirements on the advert. He qualified for phase one. The interviewing committee should also conduct shortlisting. The reason for not shortlisting him was due to two of his certificates. The shortlisting meeting was held on 26 July 2024. The problem was discovered on 29 August 2024. He has been using the same names throughout when making applications and there were no issues.

Survey of evidence by the employer party.
1st witness of the employer, Todipjane Irene Modiba, testified under oath as follows:

17. All the panel members were present during the shortlisting process and the SGB submitted the documents after the process. On the employee’s application, there were discrepancies when coming to criteria c. The information appeared to have tempered with by using a correction fluid. The certificates had some discrepancies, and the Id numbers were not the same.
18. Mr Maponya (the employee) was called so that he could come and be explained to as to why he was not shortlisted. The whole panel members and the union representatives came to that meeting, but the employee refused to meet them.
19. When conducting the shortlisting, they considered gender equity as well, hence the ladies would be shortlisted even if their scores were a bit lower. The document used in the shortlisting process was on page 50 of bundle A. At phase one, they looked at experience, qualifications and curriculum requirements. In phase two, they looked at participation in professional activities. A report was then compiled, see page 49 of bundle A, to the circuit manager. The Id number on the certificate, on page 62 of bundle R, did not correspond with the employee’s Id number and should have called SADTU to come and clarify that. Page 22 and page 25 of bundle A looked like to have been erased with a correction fluid. During the shortlisting, they dealt with what they saw on the table. Paragraph 2.7 on page 17 of bundle R, indicated that applicants must ensure of correct application form and that the Department was not responsible for any incorrect information. Mr Mthembi was appointed by the district director. Her duty as the secretary was to write minutes of the panel, though she was also scoring the candidates during the shortlisting because a secretary is a member of the panel. The shortlisted candidates, are then written on page 23 to 25 of bundle R. The employee was scored zero on criteria c because of the discrepancies in his certificates.
20. She believed that the certificates on page 22 and 23 of bundle A, were meant for the employee’s personal gain. She could not comment on whether the certificates would have been considered had it been not because of the discrepancies. She, however, said the employee should have notified the principal that he has gained some knowledge and would like to share with other teachers. The discrepancies in the certificates were the reasons for not shortlisting the employee. Mr Mthembi was selected to participate in the life science projects, he was also the chairperson of the life sciences team, see bundle R on page 93. It was put to her that criteria c included participating in workshops. She answered by saying she did not know what to say. REQV16 is a qualification with master’s and above. The employee did not have REQV16 because he did not have masters. Should he have qualified, the panel could have gone to phase three to apply more criteria so that they could be left with only 5 candidates. The Id is the document that proves one’s identity.
21. Mr Mthembi had the certificates to corroborate criteria c, see page 93 of bundle R. Mr Mthembi was appointed. He was also a project manager of the life sciences project team.

2nd Witness Motswalo Joseph Msibi, (Joseph) testified under oath as follows:

22. He was the chairperson of the shortlisting panel or committee. The shortlisting process went on and the results were handed over to the SGB. After a day or two they were informed that there was one candidate who lodged a dispute. The candidate (employee) was called so that he could be told the reasons for not having been shortlisted, but he did not come. Some of the employee’s documents looked like a correction fluid was applied on them. The employee’s identity number on the CV, was different from the one on page 61 and page 62 of bundle R. The reason for having called the employee, was to inform him of those differences. The employee’s name was also spelled differently on page 61,62 and 63 of bundle R. Paragraph 2.7 on page 17 of bundle R, provided that the applicants must ensure that they provide correct information. The name of Maponya and the date on page 115 looked like they were handwritten. The name also on page 116 of bundle R, was handwritten. The employee was not shortlisted due to the above-mentioned discrepancies. The response to the employee’s grievance was located on page 49 of bundle A, which cited that there was no evidence that he acted as a principal or deputy principal as against paragraph 58 of bundle A which provided that the appointment should be approved by the management of the district. The scores were at page 23 and 24 of bundle R. Ms Sambo was shortlisted over the employee because she was a woman and gender equity was considered. In terms of participation in departmental and professional committees, Mthembi participated in provincial SBA moderator, and he was a member of the life science committee at the district level, see pages 95, 96, 97 and 98 of bundle R, hence he was scored 7. The employee’s certificates on page 115 and 117 of bundle R, did not carry the same weight as the Mthembi’s, and the problem was the discrepancies on them. The SGB recommended Mthembi on page 37 of bundle R, and the panel recommended him on page 34 of the same bundle. Page 48 and 50 of bundle R showed that it was Mthembi who was recommended to be appointed as deputy principal. On page 53 of bundle R, the district director confirmed the appointment of Mthembi, and the HoD signed on page 54 of the same bundle. The response to the employee’s grievance by the Labour Relations section, was on page 57 of bundle R, and the district director confirmed.
23. His role as the chairperson was to lead, giving direction and facilitating the process. He was elected by the panel as the chairperson, and he participated like the other members. They used the guidelines of the ELRC to conduct the shortlisting. The employee managed to move to phase two, as per page 50 of bundle A. The dimensions / criteria on page 67 of bundle A were taken from the collective agreement. The correction fluid was used, but because it was a copy, the correction fluid could not be seen any longer. If there was no correction fluid, he would not have recognised it. It was put to him that he did not mention it then. He said the certificate was not even beneficial to the Department, and it could have been not his (employee’s). The certificates on page 84, 93 and 102 of bundle R, were handwritten. Should the employee have been scored 7, his total score could have been 29. The Departmental structures are structured in such a way that teachers could participate to help learners. He agreed that the explanation of dimension or criteria c on page 50 of bundle A, was shorter than the one on page 60 of the same bundle. He did not comment on the argument that the employee also did attend the Departmental activities. It was put to him further that the PAM, see annexure A to Bundle A, corroborated that the employee qualified in terms of dimension or criteria c. He answered that a proof was needed to show that he was carrying out his duties. It was put to him that there were other certificates which contributed to dimension or criteria c, which the panel did not consider. He answered that unfortunately they lost confidence in the employee’s documents, but he confirmed that they continued scoring him.
24. He was not aware that the employee used the same certificates in applying for the DH post and that he was scored higher. The employee was disqualified due to two different names, and different Id numbers. The employee’s certificates were not beneficial to the department.

Analysis of the evidence and arguments

25. Common issues. The employee was employed at Malesiba School as the departmental head DH) for 14 years. The post in dispute was advertised on 17 April 2024. He applied and he was successful during phase one of the process. The shortlisting panel did not shortlist him during phase two, hence the dispute.
26. The disputed Issues were: Unfair procedure in phase two. The employee’s certificates for participating in Departmental structures and activities, were not beneficial to the school. The employee’s certificates were not genuine because they were erased with a correction fluid and or handwritten. There was nothing wrong with different Id numbers and two differently spelled names. The employee was called to come and submit the original certificates. The employee should have been shortlisted to participate in the interviews.
27. The word dimension c is used interchangeably with the word criteria c. Zero rating for the employee on criteria c, page 24 of bundle R. Both the employer’s witnesses testified that the employee was scored zero on criteria c as per page 24 of bundle R. The reason for scoring him zero was that his certificates were not recognised because they did not contribute towards the development of education and that they were covered with correction fluid. They further said those certificates were for the employee’s own benefit and that they were disqualified because they were handwritten and erased. When the witness (Joseph) was asked as to whether the panel could have shortlisted the employee had it not been the alleged correction fluid, he answered by saying no. When I checked in bundle R, I found that there were other certificates which were not disputed in terms of being genuine or not, for example, the one on page 23 of bundle A. The employer could not substantiate as to why attending practical session in geographical information system did not contribute towards the benefit of the child and how does it only benefit the employee. Secondly, there is a learning area in schools called life orientation. The employee also had the certificate on environmental and sustainability in the curriculum, and my take on the balance of probabilities is that it does contribute to life orientation as a learning area. Criteria c on page 23 and 24 of bundle R, did not prescribe the number of certificates needed to qualify for a score of 7, which meant that even one was enough to qualify the score of 7. Looking at the examples of the certificates mentioned above, leaving out those with the alleged correction fluid, the shortlisting panel or committee should have considered them on the balance of probabilities, more so that criteria c on page 24 of bundle R did not specify the number of certificates required to qualify for the score of 7.
28. The different Id numbers. The employee’s Id number on the certificate issued by SADTU on page 114 of bundle R, reads 660712…….., the one on page 61 of the same bundle read 660612…… The Id number on the CV, page 31 of bundle A read 660612…, and the Id number on another CV on page 103 of bundle R, read 660912….. The employee therefore had three different Id numbers. Amongst his reasons for different Id numbers, was that the CV’s were typed at an internet café. He (employee) was asked two times on separate occasions as to whether he did check and verify his applications before submitting them. His answer during the first occasion was that he went through them quickly so. During the second occasion, he answered that his believe was that his application was correct. Let’s assume that the employee was scored 7 for criteria c on page 24 of bundle R, what could have happened in phase two! Would a reasonable man ignore the different Id numbers and shortlist the employee! I do not agree on the balance of probabilities. There are so many criminal cases in the Country, where fraudulent Id numbers and or stolen identities are used. I agree on the balance of probabilities that the discrepancies in the Id numbers justified the employee’s disqualification in phase two. The internet café cannot take responsibility for the wrong Id numbers of the employee. It was the responsibility of the employee to check and verify his information on his documents. I mean the employee was a DH with recognised qualifications, which meant that he could have participated in the shortlisting of the CS1 educators in the past. This does not mean if he never participated in any shortlisting process before, he was justified to have been so grossly negligent. Paragraph 2.7 on page 117 of bundle R, “Application for the advertised posts”, provides that; applicants must ensure that the information they provide on the application form is correct in all respects. The department does not take responsibility for inadequate and/or incorrect information provided by the applicants. The employee was referred to that paragraph and he did not challenge it in any form, instead, he agreed with the employer. The above requirement taken from paragraph 2.7 of page 117 of bundle A, is peremptory, the applicants do not have a choice but to comply. The disqualification of the employee by the panel based on three different Id numbers was on the balance of probabilities justified. For candidates to be shortlisted, they need to meet all requirements needed for the applications.
29. Paragraph 6.7 on page 58 of bundle A, which stated that an employee who acted for 12 months or more in an advertised promotional post must be shortlisted, cannot serve a purpose here. In the first instance, there was no evidence led to proof that the employee acted for 12 months or more in the advertised post. Secondly, such acting positions must be authorised by the superintendent general (HoD). The information as to whether the employee once acted and his acting was authorised by the HoD, was not available at the time of the arbitration. Lastly to be shortlisted because one acted in a promotional post for 12 months or more, does not mean that the other requirements should be ignored. Again, to have acted in a promotional post does not confer a right to promotion to that position or grade, see Swanepoel v Western Region District Council and another [1998] 19 ILJ 1418 (SE) at 1423 G-J).
30. I agree with the case law, Pamplin v Western Cape Education and Others, cited by the employee, that despite the onus being on the complainant/employee to demonstrate that the failure to promote or appoint was unfair, the employer is on the same token obliged to defend attacks on the substantive and procedural fairness of its decision if it wishes to avoid negative outcome. This therefore implies that there is an obligation on the employer to place evidence of the fairness of the process. There is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post, see Hlophe v HoD Department of Education KZN and others (D755/2021) [2024] ZACD4; (2024) 45 ILJ 805 (LC). The above authorities were also cited by the employee party in their closing arguments. Adding to the above authorities, it is worthy to mention on the balance of probabilities that the employee was given an opportunity to compete for the post. There was no substantiated evidence that the employer’s decision was based on capricious and arbitrary grounds. The employee argued that he used the same documents when making application for the DH post and he was not disqualified. In that argument, he was referring to the certificates. He, however, never mentioned that he used the same three different Id numbers as they appear in his application.
31. In the light of the above, I am satisfied that the employer on the balance of probabilities managed to defend attacks on the substantive and procedural fairness of its decision as it was held in the Pamplin case above, in that, the employer produced evidence to corroborate that the employee failed to comply with paragraph 2.7 on page 117 of bundle R, as mentioned in paragraph 28 above. The employee’s application forms contained three different Id numbers. I therefore conclude on the balance of probabilities that the employee failed to make up a good case and the relief he sought should be rejected and so it is. Award
32. The conduct of the employer by not shortlisting the employee did not constitute an unfair labour practice.
33. The employee’s case is dismissed.
34. No order on costs.

Seretse Masete Date 16/03/2025
ELRC Panellist