In the matter between

Magdeline K. Modise Applicant

and

Department of Education: North West Respondent

ARBITRATOR: Kenneth Dlamini

HEARD: 24 February 2020

CLOSING ARGUMENTS: 29 February 2020

DATE OF AWARD: 06 March 2020

SUMMARY: Labour Relations Act 66 of 1995 – alleged unfair labour practice relating to promotion in terms of section 186(2)(a) of the LRA – whether failure by the Respondent to establish or institute a new interviewing panel resulting to the non- promotion of the Applicant constitutes an unfair labour practice for purposes of section 186(2)(a) of the LRA

ARBITRATION AWARD

PARTICULARS OF PROCEEDINGS AND REPRESENTATION

1. The matter was set down for arbitration on 24 February 2020. The arbitration took place at the Department of Sports offices situated in Zeerust, North West Province.

2. The Applicant, Ms Magdeline Khufang Modise was present and represented by Mr Tiisetso, a practising attorney from the law firm Coulson and Jacobs Attorneys. The First Respondent, Department of Education, North West was represented by Ms Boitumelo Phuswane, the Respondent’s Employment Relations Practitioner. In turn the second Respondent, Mr Tshiamo Molefe was present and represented by Mr Maropeng Mothata, a union official from the trade union SADTU.

3. The proceedings were digitally recorded.

THE ISSUE TO BE DECIDED

4. I have to decide whether or not the Respondent’s failure to appoint a new interviewing panel constitutes an unfair labour practice within the meaning of section 186(2) (a) of the Labour Relations Act 66 of 1995 (“the LRA”). The relief sought by the Applicant is to have the interview process conducted by the Respondent nullified and to have the process done afresh. In turn the Respondent wants the Applicant’s application to be dismissed.

THE BACKGROUND TO THE DISPUTE

5. The Applicant is currently employed as a Head of Department (PL 2) at the RB Dithupe Primary School. She is earning a monthly basic salary of R 20, 000. 00.

6. In this matter, the parties drafted, signed and submitted pre-arbitration minutes wherein the parties set out facts on which the parties agreed on as well as those in dispute. The pre-arbitration minutes were read into the record.

7. According to the pre-arbitration minutes the following were recorded as common cause facts namely; That the Respondent had advertised a Deputy Principal position PL 3 at the RB Dithupe Primary School, where the Applicant is a Head of Department. It is common cause that the Applicant was not shortlisted.

8. That the Applicant used the Respondent’s grievance and lodged a grievance regarding her being overlooked or not being shortlisted for interviews.

9. That following the grievance, the Respondent’s review panel instructed the interviewing panel to include the Applicant in the shortlisting, which the interviewing panel did.

10. That the Applicant was interviewed on 23 October 2018, but she was unsuccessful or not promoted. Mr Molefe from another school was the successful candidate and he was introduced to RB Dithupe as the new Deputy Principal in March 2019.

SURVEY OF EVIDENCE AND ARGUMENT
The Applicant’s evidence
11. The Applicant testified herself and did not call any witnesses. The Applicant further submitted a bundle of paginated documents, bundle B, pages 1-28.

12. The Applicant, Ms Magdeline Khufang Modise testified that she has more than twenty years teaching experience and she has been a Head of Department at RB Dithupe Primary School for almost four years. She went on to say that the advertised Deputy Principal position PL 3 was at the same school and for which she had applied for and she was not shortlisted.

13. Having lodged a grievance for not being shortlisted, she was later shortlisted, attended the interviews with three other candidates from other schools, but she was not successful.

14. She said in her initial grievance, bundle B. page 26-26, she had clearly indicated that the interviewing panel which had not shortlisted her should be changed and have the interviews conducted by an independent and impartial panel, but to her surprise that did not happen.

15. The Applicant stated that she was shocked on the day of the interview to find out that the interviewing panel had not been changed as per her grievance request. She said the School Principal, one Mr Cassim (Circuit Manager) and a member of the School Governing Board made up the interviewing panel. She stated that the only change which had been made from the initial interview panel which had not shortlisted she was the replacement of one Ms Modillane who was replaced by Mr Cassim (Circuit Manager). The Applicant went on to say that during the interview process one Mr Tigele who is a member of the school governing board was the secretary of the interviewing panel, despite Mr Tigele’s spouse having applied for the position as well. The Applicant argued that Mr Tigele should not have participated in the interview process.

16. At the end of the interview process the Applicant said she had to sign a declaration confirming that the interview process was fair. She stated that before she could sign the declaration, she did make the interviewing panel aware that in her initial grievance she had requested that the interviews be conducted by an independent interviewing panel. She said she further made the interviewing panel aware of her dissatisfaction regarding the composition and that she was going to lodge another grievance which she did two days later bundle B, page 27-28. The Respondent did not address her grievance to date.

17. The Applicant stated that her dissatisfaction emanates from the fact that the Respondent failed to establish a new and independent interviewing panel as the interviewing panel which interviewed her was the same panel which had not shortlisted her. She said the panel further prepared the interviews questions and that Mr Tigele should have recused himself. She said all of this gave rise to an apprehension of bias on the part of the interviewing panel resulting in her not being promoted despite meeting the requirements of position coupled with the necessary teaching experience

18. The Applicant went to say that when the position was advertised, the school principal did not make the circular available they had to go to the office of the principal and made a copy of the circular and she was only then able to apply for the Deputy Principal position. Thereafter the School Principal expressly stated that as staff members they should not bother applying as the position had already been reserved for someone else from another school. She said it remained an on-going rumour up until the appointment of Mr Molefe.

19. The Applicant stated that the School Principal did not mention any name(s) at the time.

20. The Applicant argued that despite her second grievance which she lodged two days after the interview process. The Respondent failed to address her grievance to date. The Applicant stated that this was contrary to clause 2.5.4.of the Respondent’s circular number 22 of 2018, which provides that “All appointments are subject to no dispute being lodged and the North West Department of Education and Sport Development reserves the right not to make any appointments should it be found that the selection process was procedurally flawed”.

21. She stated that based on the above clause as quoted the Respondent should not have proceeded with the appointment of Mr Molefe. The Respondent should have addressed her second grievance first.

22. The Respondent’s representative asked the Applicant whether during the interview process she observed any elements of biasness or prejudice which she can attributed on the part of the interviewing panel members which may have triggered or given rise to her apprehension of biasness. In response the Applicant stated that at no stage during the interview process did she make any observations or elements of biasness or prejudice on the part of the interviewing panel members.

23. The Applicant stated that she felt somehow emotionally traumatised by having to be interviewed by the same panel members who had initially excluded her from the shortlisting process. She went on to say that the same panel members prepared or came with the interview’s question, hence her apprehension of biasness on the part of the interviewing panel. She said from the initial three-member panel only a partial change was effected wherein Ms Modillane was taken out and replaced with Mr Cassim who is a Circuit Manager.

APPLICANT’S ARGUMENTS
24.. Closing arguments of the Applicant party are as follows;

• In her initial grievance the Applicant clearly indicated that she wanted to be interviewed by a new independent panel and not by the shortlisting panel, but it did not happen. The Respondent only replaced one member of the initial three-member shortlisting panel and as such the initial shortlisting panel members remained a majority and for which it is the same shortlisting panel that had not shortlisted her despite her meeting the requirements of the position, until the review panel instructed that she be shortlisted.

• The Applicant was dissatisfied with the composition of the interviewing panel, despite being told that it had been changed. The Applicant believes that the interviewing panel was not objective and fair as it had failed to shortlist her.

• The Applicant lodged two grievances and the Respondent failed to suspend the interviews until the resolution of the Applicant’s grievances especially the second grievance following the interview process.

• At the end of the interview the Applicant had signed a declaration wherein the Applicant raised her dissatisfaction with the interview panel composition as the Applicant had requested that the shortlisting panel be changed.

• That fact that the first and the second Respondents did not lead any evidence implies that the version of the Applicant remains uncontested.

• It is not disputed that the Applicant was more than qualified for the position and that the interviewing panel had an ulterior motive aimed at the Applicant.

• No evidence was presented by the Respondent to show that the required procedure was followed in this case.

• The interview secretary Mr Tigele should have recused himself from the interview process given that Mr Tigele’s spouse had also applied for the position.

• The interviews should be redone and conducted by a neutral and objective panel.

The First and Second Respondent’s evidence

25. The first Respondent submitted a paginated bundle of document, bundle A, pages 1-36. The second Respondent did not submit any bundle of documents.

26. With the Applicant party having closed its case. The representatives of the first and the second Respondents submitted on record that they were not going to lead any evidence in this regard as they believe that there was no cogent or convincing evidence to be rebutted. In other words, the Applicant has failed to make a prima facie case to establish her claim against the Respondent. The representatives submitted that they would only submit closing arguments.

First Respondent’s closing arguments
27. The first Respondent’s representative submitted that the Applicant had referred an unfair labour practice dispute relating to promotion. As such the Applicant bears the onus of proof on a balance of probabilities the existence of an unfair labour practice and that the labour practice was unfair. Only then does the onus of proof shifts to the Respondent to prove that the labour practice was fair.

28. The representative went on to submit that the parties concluded, signed and submitted pre-arbitration minutes in terms of which there are two issues in dispute namely;

• That the second interview panel was biased because the panel only shortlisted the Applicant following a grievance by the Applicant in for which the review panel instructed that the Applicant be shortlisted and as such the interviewing panel was not objective and fair during the interview process.

• The second issue relates to Mr Tigele who was the secretary of the interviewing panel despite his spouse having applied for the position of Deputy Principal.

29. The first Respondent’s representative submitted that regarding the issue of Mr Tigele the Applicant did not present any evidence warranting any evidence in rebuttal on the part of the first Respondent. The representative went on to submit that the Applicant’s version is that the interviewing panel was biased because the panel had failed to shortlist the Applicant in the first place and that the Respondent had only changed or replaced one member of the initial three-members of the shortlisting panel, but the Applicant had requested a new interviewing panel.

30. The first Respondent’s representative argued that the Applicant admitted having not observed anything during the interview process which suggested that the interviewing panel was biased. The first Respondent’s representative further argued that the Applicant’s allegations are only based on perception as no evidence was presented to substantiate the Applicant’s claims. The first Respondent representative went on to say that in (Du toit et al Labour Relations Law (5th edition) it was said that “mere unhappiness or perception of unhappiness does not establish unfair conduct”

31. The Representative submitted that the Applicant failed to discharge her onus as required and as such the matter of the Applicant should be dismissed.

32. No closing arguments were received from the Second Respondent.

ANALYSIS OF THE EVIDENCE AND ARGUMENT

33. Section 23(1) of the Constitution provides that everyone has the right to fair labour practices. In NEHAWU v University of Cape Town 2003 BCLR 154 (CC) the Constitutional Court, per Ngcobo J, held that “our Constitution is unique in constitutionalising the right to fair labour practice. But the concept is not defined in the Constitution. The concept of fair labour practice is incapable of precise definition. This problem is compounded by the tension between the interests of the workers and the interests of the employers that is inherent in labour relations. Indeed, what is fair depends upon the circumstances of a particular case and essentially involves a value judgment. It is therefore neither necessary nor desirable to define this concept…The concept of a fair labour practice must be given content by the legislature and thereafter left to gather meaning, in the first instance, from the decisions of the specialist tribunals including the LAC and the Labour Court. These courts and tribunals are responsible for overseeing the interpretation and application of the LRA, a statute which was enacted to give effect to section 23(1). In giving content to this concept the courts and tribunals will have to seek guidance from domestic and international experience. Domestic experience is reflected both in the equity-based jurisprudence generated by the unfair labour practice provision of the 1956 LRA as well as the codification of unfair labour practice in the LRA.”

34. The declared purpose of the LRA “is to advance economic development, social justice, labour peace and the democratization of the workplace.” This is to be achieved by fulfilling its primary objects which includes giving effect to section 23 of the Constitution.

35. Section 185(b) of the LRA provides that every employee has the right not to be subject to an unfair labour practice. Section 186(2)(a) of the LRA defines unfair labour practice to mean any unfair act or omission that arises between an employer and an employee involving unfair conduct relating to promotion of an employee.

36. Once it is established that a promotion is involved, the fairness of the employer’s conduct may be investigated. In general, the scrutiny of an employer’s conduct departs from the principle that “unfairness” is an objective concept. Unfairness implies failure to meet an objective standard and may be taken to include arbitrary, capricious or inconsistent conduct, whether negligent or intended.

37. Applied in the context of promotion, this means firstly that mere unhappiness does not necessarily equal unfairness. For as was said in SA Municipal Workers Union obo Damon v Cape Metropolitan Council (1999) 20 ILJ 714 (CCMA) at D-E “The process of selection inevitably results in a candidate being appointed and the unsuccessful candidate(s) being disappointed. This is not unfair. In the same vein perceptions of unfairness also do not necessarily equate to unfairness.

38. The Applicant party bears the onus to prove on a balance of probabilities that the Respondent’s failure to establish or institute a new interviewing panel given the Applicant’s apprehension of biasness towards the interviewing panel which according to the Applicant had not initially shortlisted her resulted in the Applicant not getting promoted was unfair and as such amounts to an unfair labour practice as contemplated by section 186(2)(a) of the LRA.

39. The case of the Applicant is that she had lodged a grievance after the interviewing panel had not shortlisted her. In her grievance the Applicant said she had insisted that a new interviewing panel be appointed in order for her to be afforded a fair opportunity to compete, which did not happen.

40. The Applicant admitted that during the interview one Ms Modillane from the initial three-member shortlisting panel which had not shortlisted her was replaced by Circuit Manager one Mr Cassim during the interviewing process. The Applicant further admitted having signed the after-interview declaration confirming that the process was fair, after having ventilated her dissatisfaction with the composition of the interviewing panel wherein she indicated that she will lodge another grievance, which she did two days later.

41. Seeing that the interviewing panel had not been changed as per her initial grievance the Applicant did not object, but she proceeded with the interviews. The Applicant admitted having not observed anything prejudicial or any elements of biasness on the part of the interviewing panel during the interview process. The Applicant stated that it was her belief that the interviewing panel was biased towards her and that she felt traumatised to appear before a panel which had to be instructed to shortlist her despite meeting the requirements of the position.

42. The issue relating to the presence of Mr Tigele as a secretary in my view is immaterial. The spouse of Mr Tigele it not clear whether she was also interviewed apart from having applied. What is certain is that she was not appointed. The allegations and rumours that the position had already been reserved for someone else in my view remains a rumour or hearsay evidence

43. In this case the Applicant in my view was just throwing everything and anything into the melting pot just to make a case. Whether an employer has committed an unfair labour practice is an objective, factual enquiry. It is not enough that the employee alleges an intention on the part of the employer. In this case no cogent or convincing evidence was presented to reveal any actual bias on the part of the interviewing panel.

44. Coming to the Respondent’s failure to change the interviewing panel as the Applicant’s request Clause 7.21 of circular number 22 of 2018 states that “changing the interviewing committee may render the process unlawful” What is also not clear is whether the Applicant would have been appointed had a new interviewing panel been appointed.

45. In light of the above, I am of the view that the Applicant has not been able to discharge the required onus on a balance of probabilities in this matter.

46. In the premises I make the following award.

AWARD

47. The Respondent decision not to institute a new interviewing panel does not constitutes an unfair labour practice within the meaning of section 186(2) (a) of the LRA.

Kenneth Dlamini
Panellist: ELRC