IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT DURBAN, KWAZULU-NATAL
CASE NO: ELRC 790– 23/24 KZN
In the matter between:

ASHANTHA RUGBEER APPLICANT

and

DEPARTMENT OF EDUCATION KWAZULU – NATAL FIRST RESPONDENT

ASHRI RUPEE SECOND RESPONDENT

ARBITRATION AWARD

Details of hearing and representation

1. This arbitration took place over two days and was finalized on the 25 October 2024, at the offices of the Department of Education, Truro House, Durban, KwaZulu-Natal.

2. Mr A. Juguth, an official from the union NAPTOSA, represented the applicant. Mr I. Pillay, an official from the first respondent’s employee relations department, represented the first respondent. Mr B.J. Hadebe, an official from the union SADTU, represented the second respondent.

3. The hearing was digitally recorded.

4. The representatives made an application to submit closing arguments in writing on or before the 6th of September 2024, which I granted. The applicant’s and first respondent’s closing arguments were timeously received. The second respondent’s closing arguments were forwarded to me on 30 September 2024, which date I regard as the final date of the hearing.

5. I marked the applicant’s bundle of documents Bundle “A”, the first respondent’s bundle of documents Bundle “B”, and the pre-arbitration minutes entered into between the parties on 14 May 2024 as Bundle “C”.

Issue in dispute

6. I must decide whether the first respondent committed an unfair labour practice against the applicant in the conduct of the selection process.

Background to the dispute

7. The applicant is a Post Level Two educator based at the Strelitzia Secondary School, Lotus Park, KwaZulu-Natal (the school). She applied for the post of Deputy Principal at the school, that is, Post Number 1539 advertised in terms of Human Resource Management Circular 20 of 2022, dated 22 June 2023 (the post).

8. Five candidates were shortlisted and four, including the applicant, were interviewed. The applicant was ranked as the third candidate on the preference list, Form EHR11, having scored 36.31 points. The second respondent scored 41 points and was ranked as the first candidate. The second respondent was consequently appointed to the post. Two unions, SADTU and CTU ATU, were present during the interview process.

9. The Head of the Department issued the second respondent with an appointment letter dated the 09th of January 2024. The second respondent thereafter assumed duty as the Deputy Principal of the school.

10. The applicant referred a dispute to the council alleging that she was the victim of an unfair labour practice. The dispute remained unresolved at conciliation and was referred to arbitration, before me.

Survey and Analysis of evidence and argument

11. The facts of this matter appear from the analysis that follows.

12. An arbitrator is required to determine an unfair labour practice dispute in terms of Section 186(2)(a) of the Labour Relations Act (the LRA). That section provides that:

“An unfair labour practice is any unfair conduct that an employee has suffered relating to appointment, promotion training or benefits.”

13. The applicant testified and did not call any witnesses.

14. The first respondent did not call any witnesses.

15. The second respondent testified and likewise did not call any witnesses.

16. I turn against that backdrop to determine the dispute.

17. The applicant narrowed and defined the alleged unfair labour practice that she suffered by stipulating the facts in dispute.

18. In the pre-arbitration minutes concluded between the parties on 14 May 2024, the parties agreed that the two major facts in dispute were the following:

“ 6.1 Whether or not the second respondent ought to have been shortlisted to be interviewed because she is a Post-Level One educator whilst the other candidates were Post-Level Two educators.

6.2 Whether or not the applicant was underscored in the interview process.”

19. I turn to determine the facts in dispute as agreed between the parties.

Whether or not the second respondent ought to have been shortlisted?

20. The applicant contends that the second respondent ought not to have been shortlisted for an interview because she is a Post Level One educator whilst the remaining candidates were Post Level Two educators.

21. The crisp allegation is that only Post Level Two educators were eligible to be shortlisted and interviewed for the post. I am required to determine whether that allegation is true.

22. The HRM Circular No. 20/2023 stipulates in paragraph 4 what the educational qualifications, statutory requirements, experience, and eligibility of each candidate should be to compete for the post and, if successful, to be appointed to the post.

23. The circular stipulates for the post of deputy principal the following minimum requirements, in table form, under the headings post description, educational qualification, statutory requirements, competency and skills, and experiential competency.

24. Concerning educational qualifications, the aspirant candidate must have a recognized three or, four- year qualification which includes professional teacher qualifications. In the pre-arbitration minutes, it is agreed as a common cause fact that the second respondent obtained a Bachelor of Education Degree with Honours.

25. It was common cause that the applicant has 22 years of teaching experience, 14 of which were as a Post Level 2 educator. The second respondent has 27 years of teaching experience as a Post Level One educator. The second respondent further holds a Bachelor of Education with Honours- Qualification and acted as a Post Level Two educator from 2018 to the date of her appointment.

26. With regard to experiential competency, the minimum stipulated requirement is five years of actual teaching experience. In paragraph 5.10 of the pre-arbitration minute, the parties agree that the second respondent has 27 years of teaching experience as a post-level one educator.

27. It is evident that the second respondent more than adequately met the minimum qualification and experience requirements. The applicant under cross-examination further conceded that the second respondent met the criteria to be shortlisted for an interview.

28. The applicant did not allege that the second respondent had failed to meet the minimum statutory requirements or that she did not possess the necessary competency and skills stipulated in the circular.

29. The minutes of the shortlisting process held on 07 October 2023, confirm that the selection committee agreed on the following more onerous criteria for shortlisting, namely; that the aspirant candidate must have:

(i) 15 years’ experience;
(ii) Must have previously or currently, been acting in a Senior/HOD role;
(iii) Must have relevant qualifications; and
(iv) All school applicants are shortlisted.

30. It is common cause that the second respondent has 27 years’ teaching experience which surpasses the shortlisting requirement of 15 years. Moreover, at the time of applying for the post, the second respondent was acting as the Head of the Mathematics and Science Department at the school.

31. In the circumstances, it is evident that the second respondent met both the minimum shortlisting criteria stipulated in the HRM Circular and the more onerous shortlisting criteria stipulated by the selection committee.

32. I find, for the reasons set out above, that the second respondent was eligible to be shortlisted and interviewed for the post.

Whether or not the applicant was underscored in the interview process?

33. The applicant confirms in her closing arguments the facts in dispute as set out above.

34. In paragraphs 13 and 14 thereof, however, the following submissions are made:

“13. The focus centres on whether the applicant’s expertise and experience were given due consideration during the interview process and whether she was prejudiced by a biased interview committee by being underscored.

“14 The applicant attests that the school governing body was familiar with the second respondent, as the second respondent was a member of the school governing body.” (my emphasis)

35. The allegations of bias and familiarity with the interview committee are not included in the pre-arbitration minute as “agreed facts in dispute”. I drew this to the applicant’s representative’s attention and alerted him to the binding nature of the pre-arbitration minute. It is opportune to make the point here that the department would be hard pressed to find a selection committee that is not familiar with candidates who hail from the school at which the post is based.

36. The applicant’s representative however persisted with this assertion by arguing that the applicant’s case was that the interview committee underscored the applicant because members of that committee were biased(in favour of the second respondent). Moreover, they were more familiar with her because she was a member of the SGB. The broad allegation is that bias, and familiarity resulted in the applicant being underscored.

37. Rule 15 of the ELRC Dispute Resolution Procedures dealing with the pre-arbitration conference provides at subrule 15.1.3 that the parties must at a pre-arbitration conference attempt to reach consensus on, inter alia, the facts that are agreed, the facts that are in dispute and the issue that the council is required to decide. The parties did that, as set out in paragraph 19 above.

38. In a very recent judgment of the Labour Appeal Court in Mbeje’ and others v the Department of Health: KwaZulu-Natal & Others (DA33/2022) [2024] the court emphasized the purpose and binding nature of pre-arbitration minutes in labour disputes, on both the parties and the arbitrator.

39. Whilst that matter is related to an unfair dismissal dispute, it is instructive on the aspect of the pre-arbitration minute. The parties in that matter agreed in their pre-arbitration minute that the sole issue in dispute concerned the harshness of the sanction in relation to the nature of the offence. In other words, the issue in dispute before the arbitrator was limited to the appropriateness of dismissal as a sanction.

40. In the arbitration however the employees raised a new issue, that is, alleged inconsistency of the sanction. On appeal to the LAC, the court held that the deviation from the pre-arbitration minute by the employees, in raising the issue of inconsistency, “was impermissible”. The LAC dismissed the appeal and found that the outcome reached by the arbitrator was reasonable.

41. Bias, familiarity, and underscoring are, in my view, three separate and distinctive, substantive challenges. Bias and familiarity do not necessarily result in a candidate being underscored nor is the converse true. It does not follow that a candidate that has been underscored has been underscored due to bias or familiarity. There are other reasons why an aggrieved applicant may be underscored such as improper motive or mistake.

42. The point is that these substantive challenges are stand-alone allegations of unfairness and must be individually proved. Proof of one does not necessarily result in proof of the other. It does not follow that when an aggrieved candidate proves bias or familiarity in the context alleged, that finding must automatically result in the further finding that a candidate has been underscored. In my view proof of any one of these challenges on its own is sufficient to establish unfairness.

43. I return to the question of the applicant’s deviation from the agreed terms of the pre-arbitration minute. In the Mbeje matter above the court emphasized that a pre-arbitration minute assists the parties in deciding how to prepare their defence; in deciding which witnesses to call thereby restricting the number thereof and in preparing their respective cases in respect of cross-examination.

44. The submission by the applicant’s representative that the applicant was underscored because of bias or familiarity on the part of the interview committee is a veiled attempt to extend the terms of reference agreed to in the pre-arbitration minute. The first and second respondents have prepared their defence of the second respondent’s appointment based on the case stipulated by the applicant in the pre-arbitration minute.

45. The pre-arbitration minute is contractual. I as the arbitrator do not have any discretion to extend the agreed terms of reference. In the premises, I am constrained to disregard all evidence before me that relates to bias in favour of the second respondent or familiarity with her, on the part of the members of the interview committee. The agreed dispute on this second leg of the applicant’s challenge is express and requires an answer to the question of whether or not the applicant was underscored, which I now turn to.

46. Form EHR 11, the Recommended Candidates List , is a record of the scores allocated to each candidate during the interview process. The applicant scored 36.31 points whilst the second respondent scored 41 points. That is a difference of almost five points. Moreover, the applicant is the third-ranked candidate, and one other candidate, namely; SJ Buthelezi, scored higher than her. The applicant did not allege that she was a better candidate than SJ Buthelezi nor did she challenge the fact that he scored higher than her. The applicant in short did not allege that she was the best candidate for the post.

47. The applicant alleged as a separate allegation that she acted in the post of deputy principal of the school for one year and eight months. The labour court has held that acting in a post does not give a candidate an automatic right to promotion.

48. That LAC has also affirmed this principle. Candidates only have the right to be given a fair opportunity to compete for a particular post. If a candidate has been given that opportunity the only justification for scrutinizing the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason.

49. In the matter of Ndlovu v CCMA (2000) 21 ILJ 1653 (LC) the learned Judge Wallis AJ, as he then was held as follows :

“The next hurdle is of equal if not greater importance. It is to show that the decision to appoint someone else to the post in preference to the complainant was unfair. That will almost invariably involve comparing the qualities of the two candidates. Provided the decision by the employer to appoint one in preference to the other is rational it seems to me that no question of unfairness can arise.”

50. In the final analysis, the onus to prove that the selection process was substantively unfair rested with the applicant. It was incumbent upon her to prove that the process was beset with irrationality or unreasonableness. In this instance, the applicant had to prove that she was underscored and that such conduct was either irrational or unreasonable. The applicant had to factually demonstrate her claim that she was underscored. There is no evidence before me proving that.

51. In the premises, I find that the applicant has failed to discharge the onus on her to prove that the interview committee underscored her.

AWARD

I accordingly make the following award:

(a) The application is dismissed.

3 October 2024

ELRC DATE
Senior Panelist
Adv. Anashrin Pillay