IN THE ELRC ARBITRATION
BETWEEN:

DISEGO VINCENTIA THOBEJANE Applicant/employee
and
DEPARTMENT OF EDUCATION: LIMPOPO Respondent/Employer

ARBITRATION AWARD

Last date of arbitration: 2 June 2024
Receipt of closing arguments: N/A
Date of award: 3 June 2024

MATHEWS RAMOTSHELA
ELRC Arbitrator

ARBITRATION AWARD

DETAILS OF HEARING AND REPRESENTATION

[1] The arbitration hearing was held at the employer’s offices, Polokwane, Limpopo, on 30 June 2024. The employee, who was present, was represented by A Makhubedu, an official of NAPTOSA. P Modipane, the employer’s employee relations person, presented its case. The proceedings were digitally recorded. The employer submitted a Bundle of documents marked as Bundle A.

ISSUE TO BE DECIDED

[2] I am enjoined to determine whether the employer has committed an unfair labour practice relating to promotion.

SURVEY OF EVIDENCE AND ARGUMENT

EMPLOYEE’S EVIDENCE

Disego Vincentia Thobejane testified as follows:

[3] There was an advertisement for the post of chief education specialist (CES) as it appears on page 38 of bundle A. She applied for the post. As it appears on bullet 2 of the advertisement, a postgraduate qualification (NQF level 8) in education or psychology or HIV and AIDS or an appropriate equivalent qualification will be an added advantage. In her understanding, it means that when you have a postgraduate qualification, this factor will add value to your application for the post.

[4] She has a post graduate qualification in education as well as in educational psychology. She has qualifications in HIV and AIDS. She also did Life Orientation.

[5] The post also requires management skills which she also has. She is presently a deputy chief education specialist. She manages HIV AIDS programmes in the District.

[6] Looking at the scores given by the panelists during the interview, she is not happy with the scoring because of inconsistency by the panelists as they allocated different marks in respect of each item. Looking at pages 87 to 89 of Bundle A, it is evident that the panelists were not allocating the same marks and she finds this to be inconsistent and thus unfair.

[7] The incumbent for the post does not have qualifications as required by the post. Her qualifications are not relevant to the post.

EMPLOYER’S EVIDENCE

[8] The employer elected not to present any evidence and thus did not call any witness to testify on its behalf.

ANALYSIS OF EVIDENCE AND ARGUMENT

[9] This dispute relates to an allegation of unfair labour practice by the employer relating to promotion. It is now trite in our law that in matters of this nature the litigant that alleges is the one that has the onus to prove.

[10] The pertinent question is whether the employee succeeded in presenting sufficient evidence to underpin her allegations of unfairness by the employer.

[11] It is my considered view that the employee has dismally failed to present evidence to show that the employer’s conduct amounts to unfair labour practice relating to promotion. Looking at the evidence presented by the employee in its entirety, one cannot pick up any concrete and cogent evidence that may convince one that indeed any of the employer’s conduct relating to the entire process of recruiting the incumbent amounted to an unfair labour practice. In actual fact, the employee’s evidence is devoid of any facts from which one can deduce that there was unfairness.

[12] Together with the incumbent and other applicants, the employee was shortlisted and interviewed. She was unfortunately not identified as the best candidate and like the rest of the candidates she was not appointed. Based on her evidence there is nothing that shows that she was singled out for unfair treatment. Merely because a job applicant has not been rated as the best candidate, but had been given the same opportunity as the others, does not amount to unfairness.

[13] The employee’s complaint that the incumbent does not have sufficient qualifications for the post is without merit as there is no sufficient evidence to underpin such allegation.

[14] In conclusion, I arrive at the inevitable finding that the employee has failed to discharge the requisite onus of proving that any of the employer’s conduct in recruiting the incumbent for the post constitutes an unfair labour practice relating to promotion.

AWARD

[15] The employer, the Department of Education: Limpopo, did not commit an unfair labour practice against the employee, Disego Vincentia Thobejane, as alleged or at all.

[16] The employee’s claim of unfair labour practice is hereby dismissed.

Council Panelist: MATHEWS M RAMOTSHELA

Signed