In the matter between

MR. T. J. MABASO APPLICANT

And

DEPARTMENT OF EDUCATION RESPONDENT

ARBITRATION AWARD

DETAILS OF THE HEARING AND REPRESENTATION

1.1 The arbitration hearing was held on the 6th March 2014 at the premises of the respondent in Polokwane. The applicant Mr. T.J. Mabaso appeared and he was represented by Mr. S.S. Tjebane an official of SADTU. The respondent was represented by Ms. T. Netshitungulu its employee.

ISSUE TO BE DETERMINED

2.1 Whether the respondent committed an unfair labour practice by failing to promote the applicant.

BACKGROUND TO THE ISSUE
3.1 The applicant is employed by the respondent as an Educator. The respondent advertised a position of Principal in one of its schools. The applicant and other Educators applied for the said post. The applicant was short listed and interviewed but was not appointed.

3.2 The applicant has referred a dispute of unfair labour practice to the Education Labour Relations Council (ELRC) for resolution. The conciliation process could not resolve the dispute and the applicant requested that it be resolved through arbitration.

3.3 The parties agreed to submit written heads of argument by the 18th March 2014.

SUMMARY OF EVIDENCE AND ARGUMENT
4.1The applicant testified that he is employed by the respondent as a Principal at Giyana Comprehensive School. It is a position he has held since the 1st March 2007.

4.2 On the 5th March 2013, he received a telephone call around 20:50 in the evening informing him to collect a letter at Hlabuka High School. He collected the letter, and discovered that it was a letter inviting him to attend an interview on the 12th March 2013. He attended the interview even though he was mindful that resolution 3 of 2008 was not complied with. The said resolution required that he be given five (5) days notice of the pending interview.

4.3 He had overheard some members of his community stating that some members of the School Governing Body (SGB) were not supposed to have continued to hold the office after their children left the school. He testified that he lodged a grievance disputing the fairness of the procedure followed. He further requested to be given the criteria used to shortlist applicants. The information was not given to him. He discovered that the secretary of the SGB was also an applicant. He was not short listed but he issued the letters to applicants of the shortlisting and interviews. The letter was not in the envelope so he had access to its contents. He further testified that he suspected that the said secretary was part of the selection Committee.

4.4 He further testified that the successful candidate belonged to the same Religious group as one of the panellist who was interviewIing and they were both pastors. Further that the panel consisted of four Pastors and the successful candidate was a Pastor. He further stated that he was more experienced and had better qualifications than the successful candidate.

4.5 Under cross-examination the applicant was asked to explain the basis of concluding that the Panellists were biased by virtue of being Pastors. His response was that they all belong to the group of “born again” Christians which is the same group to which the applicant belong.

4.6 On behalf of the respondent only one witness was called Mr. Joseph Rogers Ngobeni. He testified that he is the Chairperson of the SGB. He co-ordinated the meeting to constitute the panel of interviewers. Applications are received by the Circuit Office. The Secretary of the SGB recused himself from the process because he was also an applicant. He was not even shortlisted.

4.7 Under cross-examination he conceded that he was no longer eligible to be in the SGB because his child matriculated in 2012.

ANALYSIS OF EVIDENCE AND ARGUMENT

5.1 Section 186 (2) of the Labour Relations Act 66 of 1995 (“the LRA”) defines unfair labour practice as :-

“any unfair act or ommission that arises between an employer and an employee involving-

Unfair conduct by the employer relating to the promotion….”

5.2 The test is therefore whether the conduct, or omission of the employer was unfair when coming to the decision to promote a particular employee.

5.3 In determining whether the employer was fair or not the following have to be taken into account:-

Whether the failure or refusal to promote was caused by unacceptable irrelevant or invidious considerations on the part of the employer or-
Whether the employer’s decision was arbitrary, or capricious, or unfair or
Whether the employers failed to apply its mind to the promotion of the employee; or
Whether the employer’s decision not to promote was motivated by bad faith;
Whether the employer’s decision not to promote was discriminatory
Whether there were insubstantial reasons for the employer’s decision not to promote.
Whether the employer’s decision not to promote was based on a wrong principle.
Whether the decision was taken in a biased manner.
(see City of Cape Town v SA Municipal Workers Union on behalf of Sylvester and others (2013) 34 ILJ 1156 (LC).

5.4 It is trite that the onus of proof in matters relating to unfair labour practice rests with the applicant. The applicant has to prove that the employer acted in one or more of the above instances.

5.5 The only things raised by the applicant was that the panel was constituted by persons who were not supposed to be in the panel by virtue of their non eligibility to the said office. There was no evidence to show that this has resulted in the applicant being prejudiced by their presence.

5.6 The applicant was not the only person who was interviewed by that same panel. Other candidates were subjected to the same scrutiny. He further raised the issue that four of the panellists were Pastors. As a person having the onus,the applicant ought to show the link between them being Pastors and the bias in favour of the successful candidate which was not demonstrated at all.

5.7 He further speculated about whether the Secretary of the SGB was part of the process again, no evidence was adduced to show this especially in that he was not even shortlisted.

5.8 The decision not to promote the applicant was not done in a capricious or arbitrary manner because the applicant has failed to prove that it was. The purpose of interviewing candidates is to assess the best or most suitable person. If it was merely the question of superior qualifications and or experience, people would be appointed on the basis of their Curriculum Vitae and nothing else. I therefore find that the applicant has failed to discharge the onus placed on him.

AWARD
6.1 The application for unfair labour practice is hereby dismissed.

6.2 No cost order is made.

PANELLIST

N.G.J. MBILENI