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8 October 2024 – ELRC797-23/24NC

Case Number: ELRC797-23/24 NC
Commissioner: Simon Beesnaar
Date of Award: 06 October 2024

In the ARBITRATION between

SADTU obo Mohammed Ridwaan Nooroodien
(Union/Applicant)

and

Department of Education – NC
(Respondent)
PARTICULARS OF THE HEARING AND REPRESENTATION

1. This is the award in the arbitration matter between SADTU obo Mr MR. Nooroodien, the Applicant and the Northern Cape Department of Education, the 1st Respondent. Ms. Jadine Koen was also joined to the proceedings as 2nd Respondent.

2. The arbitration was scheduled under the auspices of the Education Labour Relations Council (the Council). The referral is in terms of section 186(2) (a) of the Labour Relations Act, 66 of 1995 as amended (herein after referred to as “the LRA”) and the award is issued in terms of section 138(7) of the LRA.

3. The arbitration hearing took place on 17 September 2024 and was concluded on 18 September 2024 in Kimberley. Further that the parties filed their closing heads of arguments on 23 September 2024.

4. The Applicant appeared in person and he was represented by Mr Thabiso Khoboko from SADTU (Union Rep). The 1st Respondent was represented by Mr. Otsile Gilbert Pisane in his capacity as Acting DCES – LRs Unit. Ms. Koen appeared as 2nd Respondent and she was not represented.

5. The parties submitted into evidence bundle of documents which were accepted as what they purported to be. The Applicant’s bundle is referred to herein after as Annexures “A” and the Respondent’s bundle as Annexure “B”.

6. The proceedings were conducted in English and were manually and digitally recorded.

ISSUE TO BE DECIDED
7. I must determine whether the 1st Respondent committed an unfair labour practice by declining the recommendation made by the School Governing Body (SGB) to appoint / promote the Applicant to an advertised post – Departmental Head (DH) at Roodepan High School (see B10).

8. It must further be determined whether the decision not to appoint him was substantively unfair. The procedural issue relates to the delay in issuing the outcome on the DH post since the SGB recommendation.

BACKGROUND TO THE DISPUTE
9. The applicant currently holds the position of Post Level 1 Educator at Roodepan High School (Roodepan High). He earns R 22 278.25 per month. On or around July 2023, DH post was advertised for Roodepan High – post number: 202307/080. The applicant and the 2nd Respondent applied. They were both shortlisted and interviewed by the SGB.

10. The applicant was recommended for appointment by the SGB. For the reasons stated in A1 dated 8 November 2023, the HoD declined the SGB recommendation and appointed the 2nd Respondent to the post. The Applicant only became aware of the alleged unfair conduct / decision on or about the 6 February 2024.

11. Aggrieved by the decision, the Applicant referred the dispute relating to promotion to the Council for conciliation. Conciliation failed to resolve the dispute and the Union on behalf of the applicant requested that the matter be resolved through arbitration.

12. The relief sought by the Applicant is that the respondent be ordered to promote and / or to appoint him as DH.

PRELIMINARY ISSUE/S

13. At the outset of the proceedings, the Respondent Rep, Mr Pisane submitted that A7-8 and A11-13 of the Applicant’s bundle not be admitted into evidence (see Exhibit 1-5). He held that evidence contained in A7-8 is hearsay, without Dr Greyling coming to testify on it. That was an email correspondence between Ms Jansen, HR Manager of the 1st Respondent and Dr Greyling from the North West University (NWU).

14. Further that the Applicant illegally accessed the Respondent’s records to reproduce a document, altered it and presented it into evidence (A7-8).

15. A11-13 was screenshots from the applicant’s phone. He communicated on WhatsApp with some unidentified individuals and without proper authentication they should not be allowed into evidence because there was no evidence that they were not tampered with. He submitted that the Electronic Communication and Transaction Act of 2002 plays a crucial role in the authentication of digital evidence, including WhatsApp.

16. To show there was tampering, he argued that some of it did not show who the sender/recipient was. Further that the Applicant failed to attach a report from a Digital Forensic Expert to prove that they were not tampered with. The usage thereof, in his view would be in violation of the right to privacy of the sender/recipient unless the Applicant was able to produce evidence that permission has been sought and granted by the other party.

17. In response, Mr Khoboko submitted that Dr. Greyling emailed the document directly to the Applicant (A7-8), and that it was not hearsay. He further held that it was authentic as it was received by the Applicant. He submitted that the date on WhatsApp message with Dr Greyling (A12) was supposed to be 12 February 2024.

18. He held that indeed A11-13 was screenshots. The Applicant took shots only on what they needed for the purpose of arbitration. He maintained that the entire WhatsApp messages could be accessed on the Applicant’s phone to get the identity of the other parties. The people the Applicant communicated with are not relevant in the circumstances of the case at hand. He held there was no tampering and were authentic. Further that they saw no need for a Digital Forensic Expert. This was not a criminal proceeding.

ANALYSIS OF THE SUBMISSIONS –

19. I observed that A7-8 is an email correspondence dated 6 June 2023 from Dr. Susan Greyling, NWU. It purports to confirm the applicant’s qualification in the National Professional Diploma in Education (NPDE). It is common cause that she was not coming to testify as per the Pre-Arb minutes for reasons only known to the Applicant. The Applicant resolved to bring only three (3) witnesses. See clause 11.3 of the Pre-Arb minutes (B4).

20. The Respondent submitted that they would be severely prejudiced without the benefit of cross examining the Honourable Dr and the author of the document. He held that it was hearsay and should be rejected. I noted that the Constitutional Court (CC) judgement in Kapa v S 2023 (4) BCLR 370 (CC) handed down on 24 January 2023 marked a ground-breaking departure from the approach and treatment of hearsay evidence that has so far been standard practice.

21. Section 3(4) of the Law of Evidence Amendment Act, 45 of 1988 (the Hearsay Act) defines ‘hearsay evidence’ as ‘evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence’. As a general principle, hearsay evidence is inadmissible. As Mbatha AJ who wrote for the minority in this judgement puts it, the reason for its inadmissibility is that, ‘the statutory interests of justice test for the admission of hearsay evidence has a constitutional dimension, and the admission of hearsay might be so unfair as to infringe the [accused’s] fair trail rights’ (see para 4 of the judgement where the Judge referred to Savoi and Others v National Director of Public Prosecutions and Another 2014 (5) SA 317 (CC) ; and S v Ndhlovu and Others 2002 (6) SA 305 (SCA) at para 16)).

22. The Hearsay Act, however, provides for the exceptions to the rule under which hearsay evidence may be admitted. The CC had to decide whether the admission of hearsay evidence, infringed against Mr Kapa’s constitutional right to a fair trail. Six Justices who decided for the majority judgement ruled in favour of admissibility of hearsay evidence, saying: ‘But where the interests of justice, constitutionally measured, require that hearsay evidence be admitted, no constitutional right is infringed’ (para 101).

23. While I noted the CC judgement supra, Courts are generally hesitant to admit hearsay evidence that is decisive in convicting an accused. The SCA in Ndhlovu stated that “admitting or relying on hearsay evidence which plays a decisive or even significant part in convicting an accused” should only be done “if there is compelling justification for doing so”. While I fully agree with the applicant’s Union Rep that ours is not akin to criminal proceedings, one cannot be oblivious to our Courts’ interpretation of the Hearsay Act.

24. In conclusion, I hold that I was not persuaded by the Applicant’s Union Rep that there are compelling justification to admit A7-8 into evidence. No efforts were made in the first place to call Dr Greyling to testify on this document. The balance of convenience tilts in favour of the 1st Respondent. I further noted that this document bears resemblance to the Respondent’s B31. However, on close examination, para 2 of the Applicant’s document has been ostensibly altered, prompting the necessity of Dr Greyling’s testimony to explain the discrepancies. I am also of the view that hearsay evidence ordinarily is given less weight.

25. It is common cause that A11-13 is screenshots taken from the Applicant’s phone. No one else besides him and perhaps his Rep had access to that phone. Dates are incomplete (A12) and in some instances the sender/recipient are not identifiable. This begs the question of authenticity as raised by the Respondent. I also hold that this digital form of evidence (WhatsApp MSG) is susceptible to manipulation and undue advantage if handled without circumspection and due diligence.

RULING

26. In the circumstances, I make a ruling that A7-8 and A11-13 should not be admitted into evidence as submitted by the 1st Respondent.

SUMMARY OF EVIDENCE AND ARGUMENT
Applicant’s evidence –
27. Mr. Ridwaan Nooroodien started teaching at Roodepan High in 2018. He took it upon himself to put up structures in place at the school while serving as Senior Management Team (SMT) member. I 2021 he acted in the post – DH: Social Science and History. The post was withdrawn. In 2022 he was again appointed to act in the post.

28. In 2023 the post was advertised and he applied. He submitted all the necessary documents, and he was shortlisted. He was invited for the interviews with Ms Koen. He was recommended by the SGB for appointment to the post. The recommendation was then submitted to the District. When the recommendation reached the Provincial level, there was an issue raised regarding his qualifications. He obtained National professional Diploma in Education (NPDE) in Intermediate and Senior Phase (B35).

29. Social Science is taught at Intermediate phase, while History is taught at Grade 10, 11 and 12. The letter from the NWU (B31) confirmed his qualifications which covered subjects like History mentioned in the transcript. There was a mistake identified when that letter was presented at the Provincial level. Two posts were advertised, the Principal and DH post. The Principal appointment came first. That was in November 2023.

30. The appointment letter for DH post was not forth coming as expected. There was a long delay without an explanation and proper procedure being followed. An enquiry was made and Ms Phete confirmed that she did not receive an appointment letter for the DH post. It was in December 2023 and the schools closed. Ms Jansen told them that she requested some clarity regarding his qualifications from the NWU.

31. The appointment letter for the DH post only came on 6 February 2024, rejecting his appointment. It was stated that he did not fit the post profile. They did not recognize that he could teach Social Science according to the letter from the University. The 2nd Respondent was appointed. He is not in a fight with her, but with the 1st Respondent. He confirmed that his qualification (NPDE) is in the Intermediate and Senior Phase, and that the contested Post Phase was FET and Senior Phase.

32. Mr John David Lawan was the former Chairperson of the SGB at Roodepan High School. He was part of the team that set up the advertisement of the post that the Applicant and 2nd Respondent applied for. He was also part of the Panel which interviewed the two candidates. The Applicant came out as the best and was recommended for appointment. They were expecting to receive his appointment letter around December 2023 but to no avail until the school closed. The only appointment letter received was for the Principal post.

33. He called the Circuit Manager, Ms Phete (Resource Person) for an explanation on the appointment of the DH. He was told that Ms Jansen sent an email to the University. They were seeking clarity on the Applicant’s qualifications. They waited and only on 6 February 2024 the letter of appointment for the DH post came. Ms Phete requested a meeting with them. At the meeting she brought a letter rejecting the Applicant’s appointment.

34. They were told it was because of his qualifications and he did not qualify. They wrote a formal letter to the Acting HoD, the District Director, Mesdames Phete and Jansen about their unhappiness. That the Applicant was suitably qualified for appointment. They were told the HoD has the prerogative to choose who to appoint.

35. Under cross examination he confirmed that the Applicant has a Diploma which is not in line with the advert. According to B92, BA Degree was awarded to the 2nd Respondent in Senior and FET Phase. He held that she was best qualified for the post because her qualifications fit the post profile. On the Applicant’s overall score awarded, he should have been given 12 and not 24.

36. Ms. Dora Lerato Brandt was the SGB Secretary at the time (2021 – 2024). She was part of the Panel as a Scribe. After the post was advertised, the Panel was set up with Ms Phete as the Resource person. They drew up a shortlist. Three applications were received for the DH post. Only two candidates went through, the Applicant and 2nd Respondent and were interviewed. After scores were awarded, the Panel decided recommended the Applicant for appointment.

37. The report was submitted to the District Office for further processing. They waited for the outcome after all documents were submitted. On 30 November 2023 they received the appointment letter for the Principal post only. There was nothing on the DH appointment. They made an enquiry with Ms Phete. They were informed that the Department was still waiting a report from the University on the Applicant’s qualifications.

38. On 6 February 2024 they received a letter from Ms. Phete, declining their recommendation for the appointment of the Applicant. The 2nd Respondent was appointed to the post. The letter was dated 8 November 2023 (A1), but only received on 6 February 2024. The delay was too suspicious. It was after three months. It was indicated that the Applicant’s qualifications did not match the post profile.

39. They wrote a letter to the HoD to complain about the decision not to accept their recommendation (A3). They held that the Applicant was the best suitable candidate for the post. That was followed by a meeting on 16 February with the District Director, Circuit Manager, Mr Van Staden, Ms Anita Jansen and Mr Abrahams. They wanted to know why their recommendation was declined by the HoD. They were told that the Applicant did not meet the post profile. He only had Social Science which was just a portion of the required post profile.

40. She confirmed the post phase was FET and Senior Phase, and that the Applicant’s qualification is in Intermediate and Senior Phase. There was no FET Phase. Intermediate Phase starts at Grade 4-6 and Senior Phase is from Grade 7-9. The 2nd Respondent had B. Ed in Senior and FET Phase, and she met the minimum requirements of the post. She conceded that the Office of the HOD was correct in appointing the 2nd Respondent, according to her qualifications as per A1.

Respondent’s evidence –
41. Ms Anita Jansen is the Manager: Corporate Services. She manages Conditions of Service, Appointments, Recruitment and Selection processes in the Department. Posts are determined according to needs. The HR and the SGB met to complete the post profile and identified posts were advertised. Management Plan would be attached accordingly. Applications were received, sifted through and the SGB finalised the shortlist.

42. The selected candidates were subjected to interviews. Upon conclusion of the interviews, the SGB make a recommendation to the HoD. At least three candidates to nominate one for appointment. The issues of equity, redress and representivity must be taken into consideration. All documents including the recommendation were submitted to the District Office for verification and to check compliance with all policies and legislations.

43. These were then presented to the Provincial Committee made of Senior Managers, Legal Services/Labour Relations and 5 District Representatives. A decision was made based on the post requirements, who met the criteria and finally presenting that to the HoD for approval and signing off the appointments. That was the process which was followed in this case. After the appointment letters were signed off, they were distributed to the Districts, and then to the schools.

44. The SGB and the Applicant made an enquiry on the DH post following their recommendation. They did not receive all appointment letters at the same time. The first ones were received in December 2023 and others came later as usual. The schools closed in December 2023 and re-opened in January 2024. She made an enquiry again to the Provincial Office regarding outstanding appointments. She went into her emails and realised there was an appointment letter dated 8 November 2023, received in December 2023. That was for the post being contested. She conceded it was an oversight on her part to miss that before the school closed in December 2023.

45. With regard to the Applicant’s qualification, verification was done with the University. He obtained NPDE in the Intermediate and Senior Phase. The confirmation letter from the University was not corresponding with the transcript, hence the enquiry for clarity from the University. In terms of his qualification, the Applicant qualifies to teach the Senior Phase, which is just but a portion of the post profile. As a result, he would not qualify to teach all subjects listed on the post profile. That is in line with the statutory requirements listed in the PAM.

46. In his Diploma qualification, there is no FET Phase. In comparison, the 2nd Respondent had a bachelor’s degree in Senior and FET Phase, which matched the post profile. The reasons given for her appointment by the HoD are correct and there was no unfair labour practice as alleged by the applicant. The process that was followed was also fair.

ANALYSIS OF EVIDENCE AND ARGUMENT
47. This is a referral in terms of section 186 (2) (a) of the Labour Relations Act, no 66 of 1995 (as amended) (LRA). The relief sought by the applicant is that the respondent be ordered to promote him or appointment to the DH post as advertised.

48. In determining the dispute between the parties, I considered the provisions of the LRA as well as the Departmental Policy: Recruitment and Selection Policy, Personnel Administration Measures (PAM) of 2022 among others and arrived at the decision here after.

49. The LRA entitles employees to institute action against an employer for what is termed ‘unfair labour practice’ in terms of section 186 thereof. Section 185 of the LRA states that “every employee has the right not to be (b) subjected to unfair labour practice”.

50. Section 186(2) provides that;
‘Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving –
(a). unfair conduct by the employer relating to 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.

51. The applicant’s case is that he was subjected to an unfair labour practice by the respondent when the HoD declined the SGB recommendation to appoint him as DH. Further that the procedure was unfair given the time lapse since the interviews and recommendation done and the date on which the appointment was made. Essentially, he was not promoted within the meaning of section 186(2)(a) of the LRA while he was the most suitably qualified as recommended by the SGB. Disputes relating to promotional disputes are defined as unfair labour practice in terms of the LRA.

52. The HoD declined the recommendations of the SGB as per A1, clearly stating that ‘the Applicant’s qualifications did not match the post profile’. The post phase is FET and Senior Phase (see B10). The subjects are Geography (G10-12); History (G10-12) and Social Science (G8-9). The Applicant’s highest qualification is NPDE – Intermediate and Senior Phase (B35). In comparison, the 2nd Respondent holds B. Ed Senior and FET Phase (B92) and B. Ed Honours in Curriculum Studies, which in my view, fits the post profile (B91).

53. The applicant’s 3rd witness, Ms Brandt stated under cross examination that Intermediate Phase equips one to teach from Grade 4-6. Senior Phase is G7-9. This crucial piece of evidence was never revisited during re-examination and stands out like a proverbial albatross. The evidence was corroborated by the Respondent’s witness, Ms Jansen who stated that the applicant is qualified to teach the Senior Phase, which is just but a portion of the post profile.

54. She held that the Applicant would not qualify to teach all subjects listed on the post profile looking in terms of the statutory requirements listed in the PAM. That evidence was not rebutted as well. The post phase is FET and Senior Phase, for Grade 10-12 in Geography and History. Axiomatically, that disqualified the Applicant, and I cannot find that the HoD’s decision was irrational, ill-conceived or malicious.

55. Employees often believe that because they have been employed by the company or have valuable years of experience in the job that once a position becomes vacant, they are entitled to be promoted or that they are entitled to receive preferential treatment above other candidates seeking the promotion.

56. An employer may promote or appoint individuals as it deems fit. The employer’s managerial prerogative relates to the ability to appoint an employee of his or its choice. The term “prerogative” denotes that the person holding the prerogative has a right that others – employee or job applicant – does not have. This right is weighed up against the question as to whether a job applicant has a right to be appointed in a position and can s/he therefore challenge the managerial prerogative of the employer or Manager and demand to be appointed.

57. The right to appoint belongs to the employer. However, this right is not absolute. The employer must comply with the principles of fairness and can also not contravene legislation. The right is also limited by the right of the job applicant not to be subjected to unfair labour practice.

58. The employee bears the onus of proving that the decision of the employer not to promote him is unfair (see Apollo Tyres South Africa (Pty) v CCMA and Others [2013] 34 ILJ 1120 (LAC)). It should be noted that because it remains the prerogative of the employer to appoint and promote who s/he sees fit for the position at hand, the fact that another employee is more qualified does not constitute an unfair labour practice. The law requires the employee to show the existence of the conduct or decision complained of.

59. I find that the applicant has excellent qualifications and experience. However, the fact that an employee alleges that he was the most qualified candidate as recommended by the SGB is not a basis for finding that the Respondent in fact acted unfairly by promoting another candidate. In fact, possession of superior qualifications is not in itself sufficient to lay a basis for unfair labour practice claim by an unsuccessful candidate when the successful candidate satisfies the minimum requirements for the position.

60. The appointment or promotion of an inferior weaker candidate does not necessarily mean that the respondent has acted unfairly. In general, the employer has the right to appoint or promote an employee whom he considers the best or the most suitable candidate.

61. Arbitrators should be reluctant to interfere with an employer’s choice in promoting a specific candidate. The relative strength and weakness of candidates for a position cannot themselves prove that an employer committed an unfair labour practice by appointing or promoting an inferior weaker candidate, provided that the employer can provide a good reason for preferring the inferior weaker candidate.

62. I reiterate that I find nothing irrational, capricious or arbitrary in the appointment of the 2nd Respondent. It was the prerogative of the employer to select the candidate which best suited the needs of the employer, and in this case, the post profile. Besides even if the applicant was a stronger candidate than the 2nd Respondent when one compares their qualifications and experience, this would still not prove that an unfair labour practice was committed when the 2nd Respondent and not the Applicant was appointed because as a legal concept unfairness cannot exists in abstraction.

63. The discretion to select candidates for promotion is a wide discretion which had been entrusted to the Panel. While the Applicant and the SGB are disgruntled by the decision not to accept their recommendation, the Recruitment and Selection process in the practical sense, does not end with a recommendation. As long as the discretion of the appointing authority is exercised in good faith in a rational and reasonable manner, it is not permissible for arbitrators to intervene.

64. I have no doubt that the applicant is a good employee who is passionate about his profession. That is commendable. He should however accept that the SGB can only recommend and that he was not the best and suitable candidate for this particular position and for that reason he was not appointed. On the flip side, the finding that a failure to promote was unfair must be a rational one, i.e. it must be supported by facts.

65. It is not enough to merely show that there is a breach of protocol or procedures in the recruitment process when the outcome was delayed for whatever reason. It is also necessary for an employee to show that the breach of the procedure had unfairly prejudiced him. That was not established. The Applicant must not merely show that he was a suitable candidate for consideration, but that he was the best candidate.

66. In the circumstances, I find that in exercising this discretion, there is no factual basis to suggest that there was capricious, irrational, or arbitrary conduct on the part of the 1st Respondent and I am accordingly not permitted to interfere with their decision. It could not equally be demonstrated that there was a contravention of the First Respondent’s Recruitment and Selection Policy as alleged by the Applicant.

67. I have considered both the Applicant and the Respondent’s testimony and conclude that while he submitted that the conduct of the Respondent in rejecting the recommendation of the SGB to appoint him as DH is unfair labour practice, that allegation has not been substantiated. I am not persuaded that the conduct of the Respondent is tantamount to unfair labour practice as envisaged in section 186(2)(a) of the LRA.

68. Having regard to the full conspectus of all relevant facts and circumstances of the matter, I make the award here after –
AWARD

69. No unfair conduct or any other legally recognized ground to justify interference with the 1st Respondent’s decision was proved with regard to the process followed during shortlisting, interviewing and filling of the post: DH for Roodepan High.

70. The appointment of the 2nd Respondent in the aforesaid position and the decision of the 1st Respondent to make the appointment is not unfair labour practice as envisaged in Section 186(2)(a) of the LRA.
71. The Applicant’s dispute referral is dismissed.

SM. BEESNAAR
ELRC ARBITRATOR