IN THE MATTER BETWEEN:
Mhlongo S. Goodenough Applicant

And

Department of Higher Education and Training– 1st Respondent

Mzulwini C. Bongumusa 2nd Respondent
ARBITRATION AWARD

Date of Award: 03 August 2024
ELRC Arbitrator: T. Mtolo

Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
Website: www.elrc.org.za

DETAILS OF HEARING AND REPRESENTATION
1. The dispute was referred to the Education Labour Relations Council (hereinafter referred to as “the ELRC”) in terms of section 186(2)(a) of the Labour Relations Act (hereinafter referred to as “The Act”). The matter was scheduled for Arbitration on 03, and 04 June 2024 and 15 July 2024.
2. The Applicant (Goodenough Sthembiso. Mhlongo) was present and was represented by Mr. Zamani Ngcobo, a SADTU Union Representative, the Respondent (KZN-DHET) was present and represented by Mr. Thabani Mhlongo, a Labour Practitioner employed by the Respondent. The 2nd Respondent (Bongumusa Mzulwini) was present and represented by Mr. Sakhile Ntanzi, a NEHAWU Union Official.
3. The closing arguments were submitted on 23 July 2024.

BACKGROUND TO THE ISSUE
4. The Applicant referred a dispute relating to an Unfair Labour Practice-promotion dispute to the Education Labour Relations Council (ELRC).
5. The matter was conciliated and remained unresolved. A certificate of non – resolution was issued.

6. Arbitration proceedings took place on the dates aforementioned.
7. Both parties handed in Annexures A – E and concluded their pre-arb minute.

8. This arbitration award pertains to the dispute between Mr. Mhlongo G.S. (the applicant) and the Department of Higher Education and Training (DHET, the respondent) regarding the appointment process for a Head of Department (HOD) position initially advertised under reference UMLBB01-2021.
9. The applicant argues that the respondent’s policy in appointing the second candidate in the event of vacating the post through death, resignation etc, of a successful candidate within six months is silent, but the Recruitment policy of the Department of Public Works and the Department of Social Development ought to have been adopted to appoint him after the demise of the late Bhengu as the applicant was also a suitable candidate.

10. The respondent argues that they have their own recruitment policy that does not provide for the appointment of the second candidate in the event of the successful candidate vacating the post within six months and stated they did not violate or flout any of their procedures when they advertised and appointed the second respondent.

ISSUES TO BE DECIDED
11. I must determine whether the respondent perpetrated an Unfair Labour Practice by not appointing the applicant after the late Mr. Bhengu vacated the post, if not, an appropriate remedy.

SURVEY OF EVIDENCE AND ARGUMENTS
Applicant’s opening statements
12. The applicant, Mr. Mhlongo, applied for the vacancy under reference UMLBB01-2021. He was shortlisted and subsequently interviewed for the position. Mr. Bhengu was appointed to the post but passed away in August 2022, creating a vacancy. Following Mr. Bhengu’s death, the post was re-advertised. Mr. Mhlongo expected to be appointed since he was previously found suitable. He cited paragraph 4.1.7 of the respondent’s recruitment policy, arguing that the post should not have been re-advertised as he was a suitable candidate.

First Respondent’s opening statement
13. The first respondent, DHET, advertised the post in 2021, and Mr. Mhlongo was interviewed in 2022. The respondent clarified that the position was not a re-advertisement but part of the normal recruitment process. Both Mr. Mhlongo and Mr. Mzulwini B.C. were interviewed on February 2, 2024. Following the interviews, Mr. Mzulwini B.C. was recommended and appointed to the post. The respondent emphasized that the post was not in dispute at the time of Mr. Mzulwini’s appointment. The DHET highlighted that the recruitment policy allows re-advertisement if no suitable candidates are found.

Second Respondent’s Opening statement
14. The second respondent, Mr. Mzulwini B.C., applied for the post under reference UMLBB01-2021 and emphasized that the post was not a re-advertisement. He was interviewed and recommended for the position and subsequently accepted the offer. He asserted that the post was not in dispute at the time of his application and appointment. Mr. Mzulwini requested that the matter be dismissed, emphasizing that he followed the proper process for applying to a vacant post. He noted that the DHET has its own recruitment policies.

Applicants’ case
15. Witness: Mr. Mhlongo S. Goodenough, the applicant and Lecturer, led evidence under oath, stating that he was interviewed for the disputed post and found to be the second-ranked candidate after Mr. Bhengu. He asserted that following Mr. Bhengu’s death in August, within six months of his appointment, he should have been chosen for the post as the second suitable candidate. Mr. Mhlongo claimed that the employer overlooked him for the acting position. After Mr. Bhengu’s passing, Mr. Mzulwini was appointed to act in the position, which Mr. Mhlongo believed was inappropriate.

16. Mr. Mhlongo did not apply for the re-advertised post because he had not received the outcome of his grievance. He received the outcome on the same day the post was re-advertised. He seeks to be appointed to the position as relief. He did not dispute the procedures followed in appointing Mr. Mzulwini but argued that the DHET used to apply policies from other departments before it became DHET. He maintained that salary and benefits remain unchanged in the re-advertised post and that he should have been appointed after Bhengu’s passing and the post should not have been re-advertised after Mr. Bhengu’s death. He cited extracts from Public Works and the Department of Social Development as his claim for the Unfair Labour Practice as this adoption of these policies in his appointment would have also saved the respondent the burden of further expenses in filling the vacant post that they incurred after the late Bhengu.

17. During cross-examination, Mr. Mhlongo stated that he applied for three posts, including those at Kwa-Makhutha, and BB Umlazi. He confirmed that the BB Umlazi post was an HOD position. He summarized the facts that Mr. Bhengu was the first suitable candidate who was appointed, and he (Mhlongo) was the second candidate. Mr. Mhlongo acknowledged that Mr. Bhengu performed better and was appointed. He conceded that the interview process was fair. He signed a contract of employment with the respondent in 2008 and has worked for them for the past 16 years. He mentioned that an appointment letter is needed for the post but was unsure if he received one or if Mr. Bhengu did but he witnessed the late Mr. Bhengu when he assumed his duties.

18. He maintained that he was a suitable candidate and cited Bundle B, page 3, paragraph 4.1.7, which states that a post can only be re-advertised if no suitable candidate is found. He emphasized that after Mr. Bhengu’s passing, he was the suitable candidate according to the minutes of the interview process. He did not apply for the re-advertised post as he awaited the grievance outcome. He emphasized that his non-appointment was unfair and inconsistent with broader public sector practices of filling of vacant posts after the passing of the incumbent within six months further citing that policies are borrowed throughout departments (Public Works and the Department of Social Development) as the legal framework is the same in the public sector.

19. During re-examination, Mr. Mhlongo stated there was a violation of DHET’s recruitment policy regarding the timing of advertisements. He noted discrepancies in the list of applicants and argued that the post was re-advertised despite his suitability. He reiterated that he was the second suitable candidate and should have been appointed.

Respondents’ case
20. Witness: Rajiv Ramdev, Acting Deputy Principal, testified under oath. He stated that he is the Acting Deputy Principal, overseeing HR, development, marketing, infrastructure, IT, and labour relations. Recruitment and selection fall under his responsibilities. He summarized the facts of the dispute and the grievance process, finding no unfair labour practices. Mr. Ramdev read from the policy, stating that the applicant was found suitable based on a set of scores determined by the panel. Typically, candidates scoring above 60% are deemed suitable. Mr. Ramdev explained that the panel’s recommendation is sent to HR, which then submits it to the accounting officer. The late T.C. Bhengu was recommended and appointed by the accounting officer, concluding the recruitment process as per the DHET recruitment policy. He stated that the DHET policy allows re-advertisement if no suitable candidates are found. He reiterated that the grievance investigation found no unfair labour practice in not appointing Mr. Mhlongo. He further led evidence that DHET has its own recruitment policy that it relies on and it does not rely on other policies from other departments. He further briefly led evidence on the process followed after the passing of Mr. Bhengu which included the acting appointment and advertisement of the post.

21. During cross-examination, Mr. Ramdev stated that he oversees different sections in the college, including HR. He confirmed that the college has an Employment Equity (EA) plan, which was produced to the panel and followed. Labour observers signed off on the recruitment and the recommendation made by the interviewing committee. He acknowledged that the second candidate scored above 55% but below 60%. The panel typically prefers candidates scoring 60% and above but can review scores. The policy is not specific on scores but provides a guideline for cut-off scores during interviews. The panel followed DHET policies, ensuring the criteria were reasonable to test the quality of candidates. The principal, as the accounting officer, signs the appointment or has a delegation to fill the post levels 1 to 3, with the departmental head post ranked at level 3. The principal must have justifiable reasons to change the panel’s recommendations. The initial advertisement for a post follows approval to fill the vacancy, displaying criteria, qualifications, experience, and skills. Re-advertisement occurs if no suitable candidates are found at shortlisting or interview stages, targeting a more suitable audience. Mr. Ramdev emphasized that there is no obligation to offer the post to the second candidate if the initial appointee vacates the position. The post can be advertised, considering available funds and other factors. He noted the existence of a public service vacancy circular that deals with the advertisement of posts. He emphasized that they did not violate the DHET policy by not appointing Mr. Mhlongo after the death of Mr. Bhengu, as their policy is silent on replacing a late incumbent but rather follow their own recruitment policy of filing of vacant posts. He was also briefly cross examined on the acting of the second respondent.

22. During re-examination, Mr. Ramdev referred to the consolidated adverts, explaining that it contained the consolidated adverts of the posts available at the college. He clarified that if it were a re-advertisement, it would be indicated in the subject line to inform applicants. He listed several reasons for re-advertisement: no suitable candidate identified, significant changes to the post, significant time lapse, and the need to increase the exposure period to attract more candidates.

23. Witness: Mr. B.C. Mzulwini the Second Respondent and HOD Business Studies, led evidence under oath regarding his qualifications. He stated that he has been a union member since 2011 and, in his capacity as a union representative, he has never encountered a situation where he needed to borrow a policy from a different department due to silence in the current department’s policy. He explained that if faced with such an issue, he would refer it to the relevant stakeholders, specifically the chambers of the department responsible for handling policies and discrepancies. He asserted that the DHET did not flout any of their own policies. He provided evidence regarding his acting position and explained how it came about.

24. During cross-examination, Mr. Mzulwini was questioned about his appointment to the acting position and the policies related to the re-advertisement of the post. He maintained that the post he applied for was a new advertisement and not a re-advertisement as it would have stated ‘re-advertisement’, he further submitted that the DHET followed its own policies as the policy of the respondent does not implicitly state that a second candidate must be appointed and DHET cannot borrow and implement policies from different departments since DHET has its own unique operations and the chambers of the DHET exists for such discrepancies. He emphasized that while they operate under the same legal framework, each department has unique operations and policies tailored to their specific needs. Thus, policies from other departments should not be borrowed.

25. Under re-examination, he reiterated that the department did not violate any procedures. He confirmed that he applied for an advertised post, which was not a re-advertisement.

CLOSING ARGUMENTS
26. Closing arguments were noted and considered.

ANALYSIS OF EVIDENCE AND ARGUMENT
27. Section 186 of the Labour Relations Act (LRA) 66 of 1995 in South Africa outlines the concept of unfair labour practices, which include unfair conduct by the employer relating to promotion, demotion, probation (excluding disputes about dismissals for reasons relating to probation), training, or provision of benefits to an employee. Specifically, Section 186(2)(a) of the LRA defines unfair labour practice as any unfair act or omission that arises between an employer and an employee involving the unfair conduct by the employer relating to promotion.

28. In the context of promotion disputes, it is trite law that an employee who alleges an unfair labour practice relating to promotion must prove that the employer’s conduct was unfair. This could include showing that the employer acted arbitrarily, capriciously, or in bad faith, or that the employer failed to follow established policies or procedures. The principles of fairness and reasonableness underpin the assessment of whether an unfair labour practice has occurred.

29. The applicant, Mr. Mhlongo, expected to be appointed to the position following Mr. Bhengu’s passing because he was previously found suitable. However, expectation alone does not constitute an unfair labour practice. The key issue is whether the employer’s decision to re-advertise the post instead of appointing him was fair and in accordance with established policies.

30. Mr. Mhlongo further argued that the post should not have been re-advertised as per paragraph 4.1.7 of the recruitment policy since a suitable candidate (Mr. Mhlongo) had been identified. This argument requires interpretation within the context of the entire policy framework and any justifiable reasons for re-advertisement should be considered. If the re-advertisement was justified by valid reasons such as a significant lapse of time or changes in job requirements, then the re-advertisement would not be deemed unfair. The argument was rebutted by the respondent in that the suitable candidate was recommended and accepted the post and further resumed duties which ultimately concluded the recruitment process when the late incumbent assumed duties. Therefore, on the unfortunate demise of Mr. Bhengu within six months, the recruitment process of the respondent had to be followed in order to fill the vacant post, wherein it does not include appointing the second-best candidate. The respondent accordingly advertised post. In this context, the submission that Mr. Mhlongo’s expectation should result in his appointment is rejected. The employer’s decision to advertise the post is within their discretion and justified by valid reasons.

31. Mr. Mhlongo cited policies from the Department of Public Works and the Department of Social Development, which recommend appointing the next suitable candidate if the successful candidate vacates the post within six months. While comparative policies can provide useful benchmarks, they are not binding on DHET unless incorporated into its own policies. The applicant provided no evidence of DHET adopting other departments’ policies, though there was averments led regarding the leave form being similar across departments, there was no substantial evidence regarding the adoption of other departments’ policies and no evidence of DHET adopting the Public Works and the Social Development policy to appoint any other employee in the event of the successful candidate vacating the post within six months. It is the applicants’ submissions that it has never been done before which correlates with the respondents’ averments that they consistently apply their policies. The fairness of DHET’s conduct must be assessed based on its policies and the legal framework governing it. Therefore, this submission is rejected. Comparative policies do not automatically apply across departments.

32. Mr. Mhlongo also argued that he was unfairly overlooked for an acting appointment, this was met with contention in the applicants’ closing arguments. Determining the fairness of acting appointments does not fall within the jurisdiction of the Commissioner in the context of this promotion dispute, this aspect of the argument is therefore not considered in the determination of the unfair labour practice claim.

33. Mr. Ramdev was cross examined at length regarding the cut off scores used by the Interview Committee, it is unclear how the applicant was prejudiced as he was deemed suitable and met the cut off score, but further to that it is the applicants’ submission that the interview process was fair and he did not dispute the process but his dispute was against the process followed after the passing of Mr. Bhengu.

34. It is also important to note that the argument regarding the advertisement of the post being delayed by six months in the second process is neither here nor there, as the applicant did not apply for the re-advertised post and did not demonstrate any prejudice suffered as a result of the timing of the advertisement. Furthermore, the assertion that 21 applicants applied but one did not appear on the list of applicants is unclear as to how this act prejudiced the applicant. Further, the applicant has no claim in terms of fairness of the process of the shortlisting and interview process of the second process as he did not apply for the post and further conceded that he does not dispute processes for the second process but argues it should have not been are-advertised.

35. Rajiv Ramdev, the Acting Deputy Principal, maintained that the post was not a re-advertisement but part of the normal recruitment process. He explained that the DHET policy outlines circumstances under which a post would be re-advertised, such as no suitable candidates being found in shortlisting or interviews or significant changes in job requirements. His testimony consistently reiterated that the process followed was standard and that the post was advertised in accordance with normal procedures. This explanation appears reasonable and is accepted.

36. Mr. B.C. Mzulwini, who applied for the post under the normal process, confirmed that the post was not specifically re-advertised but part of the normal recruitment cycle. This submission is accepted as it is consistent with the procedural explanations provided. He further asserted that he followed proper procedures in applying and being recommended for the position, which is supported by the lack of evidence suggesting procedural deviations, this is not in dispute.

37. In SABC v CCMA and Others (2012 2 BLLR 118), the court emphasized that an employer’s deviation from standard recruitment practices without sufficient justification could lead to an unfair labour practice claim. However, in this case, DHET’s actions, as per Mr. Ramdev’s testimony, were consistent with their policy, suggesting no deviation occurred.

38. The notion of automatic promotions is addressed in several key cases. In National Commissioner of the SA Police Service v Mpho (2015) 36 ILJ 1395 (LC), the Labour Court clarified that there is no inherent right to promotion. The court emphasized that promotion is a privilege, not an entitlement, and that it remains within the employer’s discretion to decide on such matters. This discretion must, however, be exercised fairly and in accordance with established policies and practices. The court’s stance emphasises the principle that promotions are contingent upon meeting specific criteria and are not guaranteed merely by tenure or previous suitability assessments.

39. Similarly, in Nzimande & Others v Black Mountain Mining (Pty) Ltd (2014) 35 ILJ 669 (LC), the court reiterated that promotions are not automatic and highlighted the necessity of due process. The employees in this case were required to demonstrate that the employer’s decision not to promote them was irrational or unfair. The court maintained that employers must follow transparent and fair procedures when making promotion decisions, reinforcing the notion that employees do not have an automatic claim to higher positions.

40. The use of policies from other departments is another area where the courts have provided clear guidance. In National Union of Metalworkers of South Africa v Hernic Ferrochrome (Pty) Ltd (2012) 33 ILJ 301 (LAC), the Labour Appeal Court emphasized that an employer’s internal policies and procedures must be adhered to, and it is inappropriate to rely on policies from other departments or entities unless these have been explicitly incorporated into the organization’s own policies. This case highlights the risks of creating inconsistencies and potential unfair practices if policies from other departments are used without formal adoption and adaptation.

41. Further reinforcing this principle, the court in Public Servants Association of SA and Others v Minister of Justice and Constitutional Development and Others (2010) 31 ILJ 2436 (GNP) ruled that departments must follow their established policies and procedures. The case highlighted that adopting policies from other departments without proper authorization can lead to inconsistencies and undermine fairness. The judgment stressed that for policies from other departments to be applicable, they must be formally adopted and clearly communicated within the organization. There is no evidence provided that the DHET has adopted or communicated the adoption of other policies concerning matters of a successful vacating their post within six months being rewarded to the next candidate.

42. In Eskom Holdings SOC Ltd v National Union of Mineworkers obo Kyaya and Others [2020] ZALAC 22, the Labour Appeal Court affirmed that organizational policies and procedures are designed to meet specific operational contexts. The court ruled that unauthorized adoption of policies from other departments could result in unfair practices and operational inefficiencies. Each department is expected to operate within its established legal and policy framework, ensuring that internal procedures are tailored to its unique needs and challenges, which aligns with the averments of Mr. Mzulwini and Mr. Ramdev regarding borrowing policies and operational requirements of each department. These cases collectively emphasise the importance of maintaining procedural integrity and the discretionary nature of promotion decisions. They highlight that while benchmarking against other departments may offer insights, any adoption of external policies must be carefully managed and formally integrated to ensure consistency, fairness, and alignment with the organization’s operational requirements.

43. Considering the evidence and submissions reviewed, it is determined that the respondent, DHET, followed proper procedures and adhered to their recruitment policy in advertising and filling the post. The applicant’s case does not establish that the employer acted unfairly, arbitrarily, or capriciously. The decisions taken were within the bounds of authority provided by the policies and were justified by valid reasons. Relevant case laws, such as ‘National Commissioner of the SA Police Service v Mphahlele [2020] ZALAC 22’ support the respondent’s actions.
44. The DHET acted within its discretion and followed appropriate procedures in re-advertising and filling the post. The fairness in appointment and procedural transparency are critical. In SA Transport and Allied Workers Union (SATAWU) v Garvas and Others (2013 (1) SA 83 (CC)), the court emphasised the necessity of fair labour practices in appointments. DHET’s adherence to the recruitment procedures, including the advertisement based on policy grounds, aligns with the principles of fairness and transparency.
45. I find on a balance of probabilities that the respondent did not commit any Unfair Labour Practice in advertising the post and not appointing the applicant.

AWARD

46. The respondent, the Department of Higher Education and Training (DHET), did not perpetrate an Unfair Labour Practice against the applicant, Goodenough S. Mhlongo.
47. The application is dismissed.
48. The applicant is not entitled to any relief.

ELRC Arbitrator: T. Mtolo