Case Number: ELRC285-24/25GP
Commissioner: PAUL PHUNDU
Date of Award: 06 September 2024

In the ARBITRATION between

Phillip Wildschutt
(Union/Applicant)

Department of Education-Gauteng
(1st Respondent)

And

Pumela Bango
(2nd Respondent)

Union/Applicant’s representative: In person
Union/Applicant’s address:

Respondent’s representative: Mr Joseph Munengwane
Respondent’s address:

Details of hearing and representation

[1] This is the award in the arbitration between Mr Phillip Wildschutt, (hereinafter referred to as the Applicant) Department of Education-Gauteng (1st Respondent) and Mr Pumela Bango (2nd Respondent.
[2] The arbitration hearing was held under the auspices of the Council in terms of section 191(5) (a) of the Labour Relations Act 66 of 1995, as amended (the Act). The award is issued in terms of section 138 (7) of the Act.
[3] Bundle of documents marked annexure “A” and “R” were admitted into evidence and the content was not disputed.
[4] The proceedings were digitally recorded. I have also kept handwritten notes.
[5] Both parties filed written closing arguments.

Issue to be decided

[6] I am required to establish whether the Respondent committed an unfair labour practice in relation to promotion or not, if so, I must determine the appropriate remedy.

Background to the issue

[7] The Applicant is presently employed by the Respondent as Deputy Principal at North View High School.
[8] On 28 November 2022, the Respondent advertised Post no: JE12ED / 1003 (Principal Position) and the Applicant applied for the position.
[9] The Applicant was shortlisted, interviewed and he was unfortunately not appointed to the position.
[10] He declared a dispute alleging unfair labour practice regarding promotion. In the main, the Applicant alleged that the interview panel was bias and there were also procedural defects in the whole recruitment and selection process.
[11] Conciliation failed and the certificate of non-resolution of the dispute was issued. The matter proceeded to arbitration. In terms of relief, the Applicant prayed for promotion.
Survey of arguments and evidence
The Applicant’s case

[12] Mr. Phillip Wildschutt testified, under oath, that he is employed by the Respondent as Deputy Principal at North View High School.
[13] On 28 November 2022, he applied for a vacant Principal position at North View High School. He applied for the position, he was shortlisted, interviewed and he was not appointed into the position.
[14] Amongst the three recommended candidates, he was number two, and he obtained the second highest score. However, the interview panel recommended the highest scored candidate for appointment.
[15] According to him, he met all the requirements of the advertised position. He said he was better qualified than the successful candidate. Furthermore, when the Principal position became vacant, he was asked by the School Governing Body to act in the position. He acted for a period of four months starting from September 2022 until December 2022.
[16] Mr. Wildschutt alleged that the majority of the five interview panel members were bias against him because they once took a decision that he should not be appointed to act in the vacant Principal position. He further stated that the biasness was reflected in the scoring during the interview process and the results were pre-determined. The Applicant also stated that the questions were tailor made for the 2nd Respondent.
[17] Mr Wildschutt indicated that the interview Panel should have recused themselves from the interview process. The Applicant confirmed that he never brought the allegation of biasness to the attention of the chairperson of the interview panel and he also did not submit any application for recusal.
[18] Mr. Wildschutt further stated that the interview questions were exposed to the 2nd Respondent.
[19] Mr Wildschutt stated that there were procedural defects in the manner in which his grievance and appeal was handled. He said the Respondent failed to adhere to the stipulated time frames in terms of responding to the grievance and appeal.

[20] Under cross examination Mr Wildschutt could not prove that the 2nd Respondent was exposed to the interview questions prior this process. The Applicant stated that Mr Lucas Mashego leaked the questions to the 2nd Respondent.

[21] During cross examination, Mr Wilschutt conceded that in terms of clause 12.2 of the Collective Agreement 1 of 2021, Panel members must agree on formulation of questions for the interview and types of questions to be asked on the day of the interview process.

[22] Mr Wildschutt conceded that the successful candidate has the required qualifications, skills and relevant experience as he had also acted in the position of the Principal.

The Respondent’s case

[23] Ms Shirley Molobi testified, under oath, that she is employed by the Respondent as District Director. She stated that the Applicant’s grievance was attended to and responded to within the reasonable time frames. She said it was untrue that the outcome of the interview process was pre-determined.
[24] The successful candidate was the best candidate for the position.
[25] No cross examination.

Analysis of evidence and arguments

[26] Although I have considered all the evidence I will only refer in this award to those aspects relevant to determine the dispute, as I am required in terms of s 138(7) of the LRA to provide an award with brief reasons.
[27] Section 186(2) provides that; (i ) “unfair labour practice” means an unfair act or omission that arises between an employer and employee involving – (ii) 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”. The unfair suspension of an employee or any other unfair disciplinary action short of dismissal in respect of an employee.
[28] The onus is on the Applicant to prove, on a balance of probabilities, an unfair act or omission on the part of the Respondent that gives rise to an unfair labour practise.
[29] The dispute was referred as an allegation of an unfair labour practice concerning promotion.
[30] I am therefore required to determine whether the Respondent’s conduct was fair or unfair in not promoting the Applicant to the position of Principal. To succeed in such a claim, the Applicant must show that the Respondent’s conduct was arbitrary, capricious and therefore unfair.
[31] On the allegation of biasness, I find it odd that the Applicant accused the interview panel members of being biased against him and that the Panel members had previously took a decision that he should not act in the vacant Principal’s position. At the same time, same members of the Panel recommended that he should act in the vacant Principal position.
[32] Out of the Applicant’s own admission, he conceded that he was recommended by the same interview Panel to act in the vacant Principal position effective from September 2022 until December 2022.
[33] I find this testimony by the Applicant contradicting, inconsistent and unreliable. Furthermore, I find it hard to believe that the interview Panel was bias because the Applicant, right at the commencement of the interview proceedings, he never brought the issue of biasness to the attention of the chairperson of the interview panel nor did he apply for their recusal.
[34] In my considered view, it is probable that, had he brought this to the attention of the chairperson, the matter could have been dealt with there by the chairperson by taking a decision whether those SGB members should recuse themselves or not. This is a missed opportunity caused by the Applicant, and, in my view, it is an after-thought that the members were bias.
[35] It is my finding that there is no evidence before me showing and proving that these members were bias and against the Applicant when they scored him during the interview process. There is also no shred of evidence before proving that the scoring was pre-determined and the questions were tailor made to benefit the 2nd Respondent.
[36] I reject the Applicant’s testimony that the interview questions were exposed to the 2nd Respondent. The reason for my rejection was because this allegation was not substantiated and corroborated by any evidence. This allegation remains unproven.
[37] I reject the Applicant’s testimony that Mr Lucas Mashego leaked the questions to the 2nd Respondent. This is hearsay. The reason for my rejection was because Mr. Mashego was not called in as a witness to come and confirm this allegation and corroborate the Applicant’s assertions.
[38] The Applicant conceded that Panel Members must agree on formulation of questions for the interview and types of questions to be asked on the day of the interview process, then it was improbable for these questions to be leaked to Mr Lucas Mashego as he was not part of the interview panel.
[39] Under cross –examination, Mr Wildschutt conceded that in terms of scoring, he was not the best candidate. Based on this confession, I reject Mr Wildschutt contention that he was the best candidate for the position.
[40] In my view, the time frames within which the Respondent took to respond to the grievance as well as the appeal procedure did not prejudice the Applicant as he has exhausted all these channels as required by the rules.
[41] The Respondent had attended to all of the Applicant’s grievances and complaints and these were fully replied to in writing.
[42] It is my finding that there are no procedural defects in as far as the appointment of the successful candidate is concerned.

[43] I am not persuaded and also not convinced by the Applicant’s testimony that the Respondent has committed an unfair labour practice concerning promotion.

[44] As a result, I am reluctant to interfere with the decision of the Respondent to appoint the 2nd Respondent into the contested position. The Respondent has demonstrated that its discretion to appoint was not exercised capriciously and it was also not based upon any wrong principle and it was also not biased.

[45] In Aries v CCMA & others the Court held that “there are limited grounds on which an arbitrator, or a court, may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. The court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner”.

[46] I therefore make the following award:
Award

[47] The Applicant has failed to discharge the onus to show that the 1st Respondent has committed an unfair labour practice concerning promotion
[48] It is further my finding that the reasons given by the 1st Respondent for not promoting the Applicant were justified and reasonable.
[49] The Applicant is not entitled to any relief.
[50] The Applicant’s referral of the dispute is dismissed.

Commissioner Paul Phundu