IN THE ELRC ARBITRATION
BETWEEN:
PSA obo Naicker A “the Applicant”
And
THE HEAD OF DHET KwaZulu Natal “the 1st Respondent”
And
SADTU obo Ngcobo S G, “the 2nd Respondent”
ARBITRATION AWARD

Date of arbitration: 28 July 2023, 27 October 2023, 15 January 2023 & 26 February 2024.

Date of award: 08 May 2024

Lungisani Mkhize
ELRC Arbitrator
Education Labour Relations Council
ELRC Building
261 West Avenue
Centurion
Tel: 012 663 0452
Fax: 012 643 1601
E-mail: gen.sec@elrc.co.za
DETAILS OF HEARING AND REPRESENTATION

1. The arbitration hearing was held at the Esayidi TVET College Central Office in Port Shepstone at the dates mentioned on the first page of this award.

2. The Applicant, Mrs. Ashnee Naicker was present and represented by Mr. Rama Naidoo, a PSA Union Official. The 1st Respondent, the Head of Department of Higher Education and Training, was represented by Mr. Sakhile Benedict Mthethwa, its Senior Employment Relations Officer from the Human Resource Management and Development Section. The 2nd Respondent, Mr. Sanele Gregory Ngcobo was present and represented by Mr. S B Mkhize, SADTU Official. The parties provided documentary evidence.

3. The proceedings were digitally recorded.

4. The services of an interpreter were not requested.

ISSUE TO BE DECIDED

5. I am required to determine whether the Applicant was unfairly overlooked for promotion when the 2nd Respondent was appointed to a position of Head of Department: NPS NCV post number 02/11/2022. The Applicant sought retrospective promotion to the position of HOD: NPS NCV with full remuneration and benefits as relief.

BACKGROUND

6. On 01 February 2008, the Applicant was employed on a permanent basis as a Post Level 1 Lecturer by the Department of Higher Education and Training at the Esayidi TVET College’s Port Shepstone Campus. In June 2013, she was promoted to Senior Lecturer. In November 2022, the Applicant applied for an HOD: NPS NCV position at the Esayidi TVET College’s Port Shepstone Campus. On 03 February 2023, the Applicant was invited to an interview that was to take place on 07 February 2023 at the Esayidi TVET College’s Central Office. She attended the interview, was scored but not recommended for the position. Another candidate, Mr. Sanele Gregory Ngcobo, the 2nd Respondent in this matter was appointed to the HOD: NPS NCV position.

7. Aggrieved about her non appointment to the position and contending being unfairly overlooked on promotion, the Applicant referred an unfair labour practice dispute relating to promotion to the ELRC on 16 May 2023.

8. The ELRC then set the matter down for conciliation on 08 June 2023 via a virtual platform. However, the matter remained unresolved. The Applicant then requested the matter to be arbitrated and the ELRC then scheduled the matter to be arbitrated before me as shown on paragraph [1] of this award. On 28 July 2023, the parties agreed on documents to be exchanged, on a pre-arbitration meeting date, to include the 2nd Respondent on further communications and to conduct the hearing face to face at the Esayidi TVET College Central office in Port Shepstone. The hearing started on 27 October 2023 with the narrowing of the issues. Thereafter, the parties addressed me on opening statements. On the same day, evidence was led by the Applicant party until conclusion. On 15 January 2024, the 1st Respondent’s case resumed and testimony from the 1st witness was heard. On 26 February 2024, the 1st Respondent called its 2nd witness and finalized its case. The 2nd Respondent also called its witness and finalized their case. The Applicant Union Representative then requested 14 days to prepare closing arguments as he had significantly high number of arbitrations to attend and prepare for. The 1st and 2nd Respondents did not object and the request was granted.

SUMMARY OF EVIDENCE AND ARGUMENTS

9. Applicant testified on her own behalf and provided a bundle of documents referred to as Applicant’s Bundle A1 and A2. The 1st Respondent called two witnesses and provided two bundles named Respondent Bundle 1 and 2 in support of their case. The 2nd Respondent testified on his own behalf and provided no documentary evidence. I only summarized evidence which I regarded to be relevant to the dispute and which helped me to reach my decision.

The Applicant’s Case

10. In his opening statements, the Applicant Union Representative, Mr. Rama Naidoo submitted that the 1st Respondent appointed the 2nd Respondent as it did not comply with the TVET Colleges Equity Profile. The Applicant will prove to the Council by relying on page 25 of the Applicant’s Bundle 1 documents. The Applicant will also prove their case through documentation from page 46 to 63 and refer to some clauses. If deemed necessary, the Applicant will be called to testify. The relief sought was that the Applicant be appointed to the post in dispute with retrospective payments and benefits in full. Two more witnesses will be called if a need arises.

11. Mr. Rama Naidoo called the Applicant, Mrs. Ashnee Naicker who testified under oath as follows: The DHET Recruitment and Selection Policy in clause 4.1.6 stated that (a) All appointments must be made in line with the employment equity targets of the Department and (b) The Department may partner with organizations that focus on the recruitment and selection of People with Disabilities and other designated groups with the aim of recruiting them when posts become available.

12. When she became aware of the appointment made by the 1st Respondent on the post, she felt it was necessary to refer an unfair labour practice dispute because the selection and recruitment policy was not adhered to. She was aggrieved as a designated group when the appointment was made.

13. Naicker further testified that the DHET Recruitment and Selection Policy in clause 4.2.2 (b) (ii) stated that Panel Members should include the Chairperson of the College Council or his/her delegate if applicable. The Employment equity Unit must submit the updated employment equity profile to the Recruitment and Selection Unit for presentation in the panel committee. The College Council Chairperson was not present at the interviews. A Representative from the College Council was supposed to come and present the Equity Profile at the interview but none was present and would have considered the Equity Profile had they have been present. Had the Council Representative been present, the compliance of the Recruitment and Selection Policy would have been done. She was not sure if a Council Representative was available or not but there was no apology from anyone from the Council.

14. Naicker testified that clause 4.2.4 (k) of the DHET Recruitment and Selection Policy stated that all interview proceedings must be recorded both manually and electronically by the HR scribe and minutes approved by the chairperson. The word must mean that there was no other option but for the recording to be made but it was not done. She queried if the other candidates were recorded and found that they were not.

15. Naicker further testified that clause 4.3.1 and 4.3.2 of the DHET Recruitment and Selection Policy stated that for Recruitment and Selection Processes held during the lockdown phases of levels 5 to 1 must strictly follow the departmental health guidelines, all shortlisting and interview sessions may be conducted virtually utilizing the Microsoft Teams/Zoom or any other possible virtual platform in order to avoid physical contact. In case where the above provision (4.3.1) is not possible, a face to face meeting may be held following strict health protocols. The holding of a virtual Interview should have been applied to all candidates. Hers was conducted face to face. Only one candidate out of five conducted a virtual interview. It was not during lockdown phases and it had been a year and half since lockdown. This was unfair.

16. Clause 4.2.4 (k) of the same policy stated that the Chairperson was to submit motivation for deviation on the Employment Equity profile to the delegated authority. If one submitted a deviation for consideration, then they should receive feedback on whether the deviation was approved or not.

17. Under cross examination by the 1st Respondent’s Representative, Mr. Sakhile Mthethwa, Mrs. Ashnee Naicker testified that she applied for the position of HOD: HOD NCV at Port Shepstone Campus of Esayidi TVET College. She attended an interview but was unfairly overlooked for promotion to that post. She was unfairly overlooked as males were over represented. The Department did not meet its’ equity targets. The Employer’s target was three Indian females and there were two. In the Employment Equity Analysis February 2023, for post level 2 to post level 5, there were 23 Africans, 1 Coloured, 2 Indians and 2 White males. For females in the same category, 29 Africans, 0 Coloureds, 3 Indians and 1 White. She did not check with anyone on her interpretation of the employment equity analysis.

18. Naicker testified that it was fine if the 1st Respondent would call a witness to testify that at the time, the target was 43.2 for African males and at the time the Employer was at 37.5. This was 5 short. For African females, the College was sitting at 47.54 and was 6.44 in excess. The Indian females target was 3.80 but sitting at 4.92 which meant it was 1.12 over represented.

19. She testified that clause 4.1.6 (a) & (b) of the DHET Recruitment and Selection Policy which stated that all appointments must be made in line with the employment equity targets of the Department and that the Department may partner with organizations that focus on the recruitment and selection of People with Disabilities and other designated groups with the aim of recruiting them when posts become available was not met. She knew this because she looked at the College appointments for PL1 to PL5 and noticed that the Employment Equity Plan was not met.

20. Naicker knew that the College Council was not represented at the interviews because the Employment Equity Unit was not there. The College Council Chairperson’s presence was a must at the interviews. She read in clause 4.2.2 (b) (ii) third bullet other DHET Recruitment and Selection Policy that the Panel Members should include the Chairperson of the College Council or his/her delegate if applicable.

21. After reading the confirmation of shortlisted candidates with her name listed in number 3, she testified that she was not overlooked. She further testified that she attended interviews and had an opportunity to respond to questions. She did not dispute the scoring of the candidates and the scores for the highest scored candidate. What was wrong with the appointment of the highest scoring candidate was not about the individual but about the interview process. She testified that the Union Representatives were present to observe the interviews process and to note if there were any irregularities.

22. She testified about a candidate that had an interview virtually which she found unfair as that person had a privilege as someone could have given him an answer. She did not know why the candidate was given an opportunity to be interviewed virtually. She was not sure if the candidate was asked different questions than she was asked. She found out through an employee at the College about the candidate that was interviewed virtually.

23. She testified that she was unfairly discriminated against based on race which was against clause 2.3.1 of the DHET Recruitment and Selection Policy which stated that the process of selection should not discriminate against external and/or internal applicants or against any applicant on the ground of race, colour, gender amongst other grounds.

24. The post was not earmarked for Employment Equity and could not discriminate against any group of persons. She was not informed that the process was recorded and she knew she was not because according to the POPI Act she would have been told if she was recorded. She did not respond when it was put to her that for PL1 to PL3 appointments, there was no requirement for the presence of the principal and there was no deviation from the process. She did not respond when it was put to her that the 1st Respondent’s witnesses were to testify that the appointment was done on merits and in accordance with the DHET Recruitment and Selection Policy.

25. Under cross examination by the 2nd Respondent’s Representative, Mr. S B Mkhize, Mrs. Ashnee Naicker testified she attended the interview around the 7th of February 2023. Prior to her lodging the dispute, she did not know the DHET Recruitment and Selection Policy. She testified that there was no member from the College Council because when she attended the interview, she realized that there none. When she realized, she did not lodge a grievance but contacted her Representative and they waited for the outcome before lodging a grievance. Her Union was not invited to take part in the interview process. It was put to her that her Union was invited as the ELRC recognizes SADTU and CTUATU. Her Union was invited through CTUATU. Hence, no dispute was referred by a Union. She agreed.

26. It was put to Naicker that she was shortlisted for the interview because she acted in the position and she agreed. She referred the dispute around March or end of April after the appointment. For Naicker, manual and electronic recording meant written notes and use of a device. She further testified that her interpretation of the policy was that manual recording referred to someone writing and electronic recording referred to a voice recording in a device. She was okay that the policy did not mention the type of a recorder.

27. The candidate that was interviewed virtually was unfairly advantaged over others. The score for the candidate that was interviewed virtually was 52%. It was advantageous for his as it was less intimidating and more comfortable via a virtual platform. When it was put to her that the score did not reflect any advantage, she did not want to comment on the score.

28. She denied that she lodged the dispute after the appointment had been made because had she been appointed, she was not going to lodge her dispute. At the time of the interviews, she was not aware that the Council was supposed to be there. When it was put to her that the process was fair, she did not respondent.

29. There was no re-examination of the Applicant’s testimony.

30. In his closing arguments, the Applicant Union Representative, Mr. Rama Naidoo submitted as follows: Mrs. Naicker claims that the Higher Education and Training Recruitment and Selection Policy read with the said clauses below was not complied with by the 1st Respondent. The dispute was referred to Council as Unfair Labour Practice Promotion that the Applicant was overlooked and the Respondent did not comply with the Recruitment and Selection Policy. The relief we are seeking is the Applicant be appointed to the post in dispute and be paid in full retrospectively with all benefits.

31. Commissioner it must be noted that the above DHET Recruitment and Selection Policy was not fully complied with as stated below:

• Chairperson of the College Council was not invited.
• The Equity Plan was only discussed after the interview process.
• The interviews were not electronically recorded.
• The Chairperson did not make any submission for deviation.

32. Commissioner it is important to note that the First Respondent failed to comply with the Recruitment and Selection procedures by not inviting a delegate from College Council which is a must in terms of the Higher Education and Training for Recruitment and Selection Policy. The interviewing processes were not electronically recorded in terms of the above Policy, which the Respondent failed in terms of its procedures. Commissioner, Respondent (1) and the HR witness failed to proof that the interview processes were recorded electronically to substantiate that the minutes was verbatim. It must be noted that without the recorded minutes, the HR witness could not prove that she wrote the exact answers of Mrs. Naicker at the interview, it is evident in (bundle R1 pages 39-40). The HR witness alluded to the fact that this was a summary of the minutes recorded by hand writing. Commissioner it must be borne in mind that the aforementioned minutes is very unlikely due to the fact that the questions must be answered comprehensively for a Management post, and Mrs. Naicker did exactly.
33. The advert of this post did not reflect the Equity Plan Targets but was implemented only at the end of the interviews which is totally not procedural and also unfair.
34. In conclusion, the First Respondent was inconsistent and unfair by interviewing one candidate virtually and the others face to face, did not comply with the Recruitment and Selection Policy of Higher Education and Training with no delegate present from College Council at the interviews was not procedurally, the Equity Target Plan was not placed in the advert of the said post but was only implemented after the candidates were interviewed which indicates unfairness and the deviation was not authorized by Senior Management of the Department or by Head Office which is tantamount to an Unfair Labour Practice.

The 1st Respondent’s Case

35. In his opening statements, the 1st Respondent Representative, Mr. Sakhile Mthethwa submitted that the 1st Respondent will prove through witnesses and documents that the Employment process engaged in was fair to all candidates. The post and advertisement was not earmarked for any equity balancing and was not advertised as such.

36. The 1st Respondent will prove that the Applicant was not unfairly overlooked in the employment process. There were no recruitment and selection irregularities in terms of the filling of the post.

37. The 1st Respondent will deal with the issue of whether the Employer can be ordered to grant a position and for someone to just receive it. It would be prejudicial for the Employer to remove a person who got a position on merit. The 1st Respondent will call three witnesses.

38. The Respondent Representative, Mr. Sakhile Benedict Mthethwa called his 1st witness, Ms. C B Mpanza, its HR Manager who testified under oath as follows: She was responsible for the controlling of service, training, recruitment and the employment equity act. When the Applicant applied for the HOD: NPS NCV position, she was part of the recruitment process and committee. In the minutes of the interview process for the position, there were no apologies. There were no complaints that were raised by panelists or union representatives. If a person is aggrieved about the interview process, they should write to the Chairperson of the Committee but no one did.

39. Five candidates were shortlisted for the position. Mr. Ngcobo scored the highest and was recommended for appointment to the position. Should he not accept, the next in line was Ms. D L Mntungwana. She submitted how the candidates performed to the Delegated authority. She reported on the candidates’ qualifications. Mr. Ngcobo had 15 years’ experience as a Senior Lecturer and Mrs. Naicker had 8 years’ experience as a Senior Lecturer. Ngcobo had superior qualifications at Honours level. The process was fair and not disputed.

40. The position was not earmarked for specific designated groups in terms of the EEA. If it was earmarked for a specific group, they would have shortlisted as normal and then after the interviews, then kick in the targets to ensure they did not disadvantage those that were competent.

41. HR Department was responsible for compiling the Employment Equity Analysis of the College but the document came from the national department. The target was 43.2 for African males and at the time the Employer was at 37.5. This was 5 short. For African females, the College was sitting at 47.54 and was 6.44 in excess. The Indian females target was 3.80 but sitting at 4.92 which meant it was 1.12 over represented. African males target had to be prioritized first before the Indian females.

42. When asked if the Employer recorded the interviews in-line with clause 4.24 (k) of the DHET Recruitment and Selection Policy, Mpanza testified that there were minutes of the proceedings, manual recordings that had templates with verbatim answers. She was not sure if one of the candidates was interviewed virtually but would have been handled like it was done in the arbitration hearing. The questions to the candidates were the same. Union Representatives were there to observe and ensure consistency. Clause 4.16 of the DHET Recruitment and Selection Policy stated that all appointments had to be in-line with employment equity targets of the department and it was done as such. If the Applicant was appointed, they would have deviated from the Recruitment and Selection Policy and would need approval from the delegated authority to do so.

43. Considering the Applicant’s allegations and the evidence led, there was nothing wrong done by the panel during the interview. The decision made was based on scores and performance on the day. The Applicant was not overlooked in terms of the Employment Equity Targets.

44. Under cross examination, Mpanza testified that the Employment Equity Policy referred to equity targets and they were fair even though they were not put in the position advertisement. She was not sure which clause referred to the equity targets. She authored the candidates’ submissions in relation to their suitability for the position. She also recorded the panel members’ submissions. Her recording was not verbatim as she could not write everything each candidate submitted.

45. When asked if what she recorded was all that was said per candidate, she replied that the interview lasted 15 minutes and she analyzed what was said and summarized points to write as notes. Her notes were neither a draft nor a transcript, there were originals of what each panel member wrote.

46. When asked if it would not have been appropriate for her to have the proceedings electronically recorded, she replied that panel members wrote whatever was said and she did not change the decision of the panel. The decision to appoint was made by the panel on the day of the interview. Mpanza denied that the interview proceedings had to be recorded both manually and electronically as per clause 4.2.4 k of the DHET Recruitment and Selection Policy.

47. When it was put to her that both Ngcobo and Naicker had 10 years’ experience, she replied that she read the transcripts. Mpanza testified that it was correct to put equity in place after the interview process. She further testified that it did not need to be put up front.

48. She did not set equity targets for the college but used targets from the National Department. She put targets against her current to get variances. For KZN, she actioned against a 3 year plan.

49. She did not confirm nor deny that out of the five candidates, one was interviewed virtually but she stated that if one was interviewed virtually, reasons which made sense would have been given and considered. When it was put to her that Mr. Mseleku attended virtually, she testified that Mseleku had been attending week long training in Pretoria.

50. There was no need to have the Chairperson of the College Council as per clause 4.2.2 (b) (ii) of the DHET Recruitment and Selection Policy as the position in question was not a Council Post but a Department Post. Hence the clause included the words “if applicable”.

51. In re-examination, Mpanza testified `that the line manager had to be present. The Chairperson of the College Council did not need to be present as it was not a council post. She recorded the interview process by typing submissions from the panel members to her laptop. Minutes were not handwritten but were typed. She emailed electronic typed copies.

52. The Respondent Representative called his 2nd witness, Mr. C Migochi, the 1st Respondent’s Deputy Principal- Academic Services who testified under oath as follows: All the College’s six campuses reported to him. The Head of Unit (NVC) position at the Port Shepstone Campus was a post level 3 post. He was appointed by the Acting College Principal to chair the recruitment process proceedings as the post fell within his department.

53. Minutes were captured electronically using a computer. Mr. Nathi Mseleku was interviewed virtually. Clause 4.2.2 (b) (ii) bullet 3 of the DHET Recruitment and Selection Policy state that the Panel members should include the following people as per PSR: Employment Equity Unit must submit the updated employment equity profile to the Recruitment and Selection Unit for presentation in the panel committee. In terms of the position in question, they looked at the ideal candidate for it. African males were in the green and Indian females were in the red.

54. The target was 43.2 for African males and at the time the Employer was at 37.5. This was 5 short. For African females, the College was sitting at 47.54 and was 6.44 in excess. The Indian females target was 3.80 but sitting at 4.92 which meant it was 1.12 over represented. African males target had to be prioritized first before the Indian females. It was not true that the Applicant was overlooked for the position. In terms of equity, the Applicant was not overlooked. In terms of the interview results, she did not beat the 2nd Respondent, Mr. Ngcobo.

55. Under cross examination, Migochi testified that the reason the College Council was not invited was that the post was for the Department of Higher Education and Training. It was for DHET to appoint. The College Council did not have to be invited. Clause 4.2.2 (b) (ii) 2nd bullet of the DHET Recruitment and Selection Policy states that the selection panel must be constituted with panel members which include the Line Manager/Immediate Supervisor of the vacant post; Chairperson of the College Council or his/her delegate, (if applicable). Thus, the invitation is not mandated. In this case, the position was not for a Council Employee. The Council was not the Employer but the DHET.

56. Migochi further testified that a typed document was a recording. He supposed that the last three lines on the Applicant’s submission to the panel as typed in the Filling of the HOU (NCV) Post Ref: HODNPS02/11/2022 was a true reflection of the minutes. A Senior Lecturer, HOD and Campus Manager all form part of Management. As Chairperson, he had to ensure interviews were conducted, candidates scored and that HR recorded the proceedings.

57. When asked if he could confirm that the letter to the Acting Principal with a recommendation to fill the post contained a correct reflection what transpired, he replied that he just received the bundle that day and needed time to confirm each candidate. He testified that he followed every rule in the recruitment policy.

58. A candidate was recommended after interview results were scored. Ngcobo’s results were 81% which was the highest. The Applicant was number 3 on the candidates’ scoring list.

59. In re-examination, Migochi testified that interview scores for the candidates as reflected in page 2 (Page 38 of Employer Bundle) of the letter to the acting principal titled filling of the post of the head of unit (NCV) Ref: HODNPS02/11/2022 were a true reflection of the interviews outcomes.

60. In his closing arguments, the 1st Respondent Representative, Mr. Sakhile Benedict Mthethwa submitted as follows amongst others: The evidence of both witnesses was consistent and factual. The Respondent successfully proved compliance to the DHET Recruitment and Policy in respect of the recruitment and selection interview process for the post in question. The Applicant bore the burden of proof and dismally failed on a balance of probabilities to prove that the 1st Respondent failed to comply with its Selection and Recruitment Policy. and

2nd Respondent’s Case

61. The 2nd Respondent’s Union Representative, Mr. S. B. Mkhize called the 2nd Respondent, Mr. S. G. Ngcobo as his witness who testified under oath as follows: His full names were Mr. Sanele Gregory Ngcobo. He was employed as a Head of Unit- NCV at the Port Shepstone Campus but he was acting as a Campus Manager in one of the campuses with the Esayidi TVET College. Candidate 3, himself was the best candidate.

62. If someone was to lodge a promotional dispute of this nature, he expected the 2nd best performing candidate, Ms. D L Mntungwana and not the Applicant. The first requirement for the position in question is possession of a Bachelor’s Degree or National Diploma in Business Studies or a Management Qualification. The Applicant is in possession of a National Professional Diploma in Education, Foundation Phase which is the lowest phase but the College started from grade 8 and above. A foundation phase qualification was not suitable for higher education. He did not think that the Applicant’s qualification qualified her to teach. She was shortlisted because she acted on the post. There was nothing in the policy stating that acting Employees would automatically be considered for the post.

63. As one of the candidates, he was informed that HR would be recording the proceedings via a laptop computer. The type (visual or audio) of recording was not specified. He had no reason to mislead the conference.

64. Under cross examination, Ngcobo testified that the Applicant obtained her national professional diploma on 5 December 2012. On 05 April 2016, the Applicant obtained her advanced certificate in education-Professional Education Development. The advanced certificate obtained in 2016 was advancing what she learned in the Diploma and was based on it. According to him, the advanced certificate did not put the Applicant in the intermediate nor the senior phase. He assumed the advanced certificate was SAQA approved.

65. When it was put to him that if the Advanced Certificate in Education for the Applicant did not meet the minimum requirements, then she would not have been shortlisted, he replied that she was shortlisted because she acted in the post. Recording through the laptop as part of the process was not against the law.

66. In re-examination, Ngcobo testified that the Applicant did not have an FET Phase Qualification. Thus, the North West University could not advance it. Clause 4.2.2 of the DHET Acting Appointment Policy states that the employee appointed in writing to act in a senior post by the delegated authority shall be paid an acting allowance provided she is appointed to act in a senior and vacant funded post, the period of appointment shall be for an uninterrupted period and longer than 6 weeks.

67. In his closing arguments, the 2nd Respondent Union Representative, Mr. Siphesihle B Mkhize submitted as follows amongst others: Ms. A. Naicker informed the conference that she was acting in the same post for a period of 1 year and 6 months and it was unfair that she was not the successful candidate for appointment.

68. Mr. SG Ngcobo told the conference that he was the best candidate for the position based on the scores and recommendations of the selection panel. Mr. SG Ngcobo indicated that it would be justifiable if a dispute is referred by the 2nd ranked candidate. Mr. SG Ngcobo also testified that Mrs. A. Naicker does not have a qualification to teach at TVET since her teaching qualification is for the foundation phase (grade R to 3). He concluded by saying that as a candidate, he was not informed of any type of an electronic recorder but he saw laptop computers and knew that he was being recorded.

69. The representative of Ms. A. Naicker asked if Mr. SG Ngcobo knew what an advanced certificate in education is, Mr. SG Ngcobo indicated that the qualification is based on what Ms. A. Naicker already possessed. Mr. SG Ngcobo also said the qualifications of Ms. A. Naicker are not questionable as they are SAQA approved but they are not relevant for a TVET educator in terms of the FET policy.

70. Mr. SG Ngcobo confirmed that the Advanced certificate in Education for Ms. A. Naicker is upgrading or advancing her knowledge in the foundation phase not in the FET (grade 10 to 12). He also indicated that a promotion could not be used to compensate candidates who were acting in the position. Ms. A Naicker was not the best candidate for appointment in to this post. She was given a fair opportunity to express herself through the interview. Ms. A Naicker was not overlooked for promotions. The selection panel did not deviate from the policy as all her claims were rebutted. Ms. A. Naicker was acting in the position and she was compensated by means of receiving an acting allowance.

71. Commissioner, we wish to close by indicating that Ms. A. Naicker was not in any way disadvantaged neither was Mr. SG Ngcobo was advantaged by any of the processes. Even though Ms. A. Naicker is exploring her rights but she is just being opportunistic and wasting the time and resources of the employer and council. She was not the most suitable candidate for the position.
• Mr. SG Ngcobo was the best candidate hence appointed.
• The processes were free and fair as per the evidence presented.
• It was unreasonable to wish for the process to be re-done when you are among the sifted in and shortlisted candidates.
• The panel executed their duties according to the selection policy and recommended the most suitable candidate.

ANALYSIS OF EVIDENCE AND ARGUMENT

72. Section 186(2) (a) of the LRA stipulates that an unfair labour practice means any unfair act or omission that arises between an employer and an employee involving 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.
73. This is a dispute relating to promotion and therefore, my determination will focus on whether there was unfair conduct by the first Respondent against the Applicant concerning procedure of appointing the second Respondent instead of the Applicant to the position of HOD: NPS02/11/2022.

74. In Buffalo City Public FET College v CCMA and others (P372/12) [2016] ZALCPE 18 (handed down on 4 November 2016) it was held that in unfair labour practice disputes, particularly in those relating to promotions, the onus is on the Employee to prove that he/she is a suitable and better candidate for the position in question. Mrs. Naicker then had the burden of proof and started leading evidence.

75. In City of Cape Town v SAMWU obo Sylvester and others (2013) 34 ILJ 1156 (LC); [2013] 3 BLLR 267 (LC) it was held, with reference to the Aries case that the overall test is one of fairness. In deciding whether the employer acted fairly in failing or refusing to promote the Employee it is relevant to consider the following:

a) Whether the failure or refusal to promote was caused by unacceptable, irrelevant or invidious consideration on the part of the Employer; or
b) Whether the Employer’s decision was arbitrary, or capricious, or unfair; or
c) Whether the Employer failed to apply its mind to the promotion of the Employee;
d) Whether the Employer’s decision not to promote was motivated by bad faith;
e) Whether the Employer’s decision not to promote was discriminatory;
f) the law requires the Employee to show the existence of the conduct or decision complained of. Therefore, the onus rests with the Employee. It follows that if the Employee is challenging the process and that decision or conduct by the Employer is not established by the Employee, then that is the end of the issue.

76. The Applicant’s overall allegation was that she was unfairly overlooked for appointment to the position in question and sought to be appointed to the position retrospectively with all payments and benefits. Evidence presented showed that the Applicant was invited to an interview amongst four other candidates. Furthermore, she was given a chance to answer standard interview questions and scored by members of a panel like other candidates. The results of the interview showed that the Applicant scored the 3rd highest marks. The Chairperson of the interviewing committee recommended the candidate that scored the highest marks of 81% and the decision was confirmed by the 1st Respondent. In the Applicant’s own testimony under cross examination, she conceded that she was not overlooked for the promotion.

77. The 2nd Respondent, Mr. S. G. Ngcobo testified that the first requirement for the position in question was possession of a Bachelor’s Degree or National Diploma in Business Studies or a Management Qualification. The Applicant is in possession of a National Professional Diploma in Education, Foundation Phase which is the lowest phase but the College started from grade 8 and above. A foundation phase qualification was not suitable for higher education. He did not think that the Applicant’s qualification qualified her to teach at Higher Education level. She was shortlisted because she acted on the post. There was nothing in the policy stating that acting Employees would automatically be considered for the post. He further testified that the advanced certificate the Applicant acquired, furthered her foundation phase qualification. He further testified that she was paid an acting allowance for acting in the position. That she acted for a year and six months did not make her entitled to the position in question. The Applicant did not rebut this testimony. Based on the above, it is my finding that the Applicant was not overlooked for the position in question and consequently should not be appointed to the position in question. I still need to determine if there was any unfairness on the part of the 1st Respondent based on specific allegations by the Applicant.

78. In determining whether there was unfairness in the selection and recruitment process conducted by the 1st Respondent, I will consider the allegations put by the Applicant. Firstly, the Applicant alleged that the 1st Respondent failed to adhere to clause 4.2.2 (b) (ii) of the DHET Recruitment and Selection Policy as the Chairperson of the College Council or his delegate was not included as a Member of the Panel conducting interviews.

79. The 1st Respondent’s 1st witness, Ms. C. B. Mpanza testified that there was no need to have the Chairperson of the College Council as per clause 4.2.2 (b) (ii) of the DHET Recruitment and Selection Policy as the position in question was not a Council Post but a Department Post. Hence the clause included the words “if applicable”. This testimony was not rebutted by the Applicant. Thus, it is my finding that there was no unfairness in not inviting the College Council Chairperson to be part of the Interview Panel Members as this is not applicable in Department posts.
80. Secondly, the Applicant alleged that the College Council Representative was not invited to present the Departmental Equity Profile and she was unfairly disadvantaged as an Indian Female. Clause 4.2.4 (k) of the DHET Recruitment and Selection Policy allowed for a deviation on the Employment Equity Profile to the Delegated Authority. Naicker further submitted that had the chairperson submitted, he would have received feedback whether the deviation was approved or not. Mpanza testified the position was not earmarked for a specific designated group in terms of the EEA. If it was earmarked for a specific group, they would have shortlisted as normal and then after the interviews, then kick in the targets to ensure they did not disadvantage those that were competent. She further testified that HR Department was responsible for compiling the Employment Equity Analysis of the College but the document came from the national department. The target was 43.2 for African males and at the time the Employer was at 37.5. This was 5 short. The Indian females target was 3.80 but sitting at 4.92 which meant it was 1.12 over represented. African males target had to be prioritized first before the Indian females.

81. The Applicant did not score the highest on the interview questions and did not need to be recommended for the position. Moreover, there was no need for the Chairperson to deviate from the policy so as to appoint the Applicant as this could not be justified both on performance and on the equity targets. It is my finding that there was no unfairness on the part of the 1st Respondent with regards to the Applicant’s second allegation.

82. Thirdly, the Applicant alleged that interview proceedings were not electronically recorded as per clause 4.2.4 (k) of the DHET Recruitment and Selection Policy. She further alleged that the manual recording done was not a true reflection of what transpired during the interviews. The 1st Respondent provided typed minutes of the interviews which it regarded as electronic recording of the proceedings since they were typed by HR into the laptop application. Migochi testified that to him, that was an electronic recording of the proceedings. The Applicant did not present what the actual interview answers were against what was recorded by HR manually and electronically. Hypothetically, it can be said that typed minutes of the proceedings were an electronic recording of the event. However, the recording is one that has been summarized and somewhat edited by the person that heard and typed. Mpanza testified that she did not type what was said verbatim. Thus, the accuracy of the electronic recording was dependent on Mpanza’s efficiency in capturing what was said correctly. Had Naicker provided her own notes of the answers she gave at the interview and they happened to differ from the ones Mpanza typed, a verbatim electronic or even digital recording of the proceedings would have settled the issue. However, the policy does not explicitly state that a manual or electronic recording needs to be recorded verbatim. Thus, I cannot find that there was no electronic recording as per clause 4.2.4 (k) of the policy. Interviews in many institutions sometimes include compulsory signing of confidentiality clauses but this does not assist when interested parties doubt the summary of the proceedings. It would add to fairness if the 1st Respondent could update their policy to include verbatim recordings that could be accessed where aggrieved candidates make allegations on the interview process and contents.

83. Fourthly, the Applicant alleged that one candidate; Mr. Mseleku was allowed to do a virtual interview whilst others did face to face interviews. She further testified that clause 4.3.1 of the DHET Recruitment and Selection Policy allowed the 1st Respondent to conduct virtual interviews during the lockdown period due to the Covid 19 pandemic. However, when Mr. Mseleku was allowed to participate virtually, it had been a year and a half since lockdown. The candidate that was interviewed virtually was unfairly advantaged over others. The score for the candidate that was interviewed virtually was 52%. It was advantageous for him as it was less intimidating and more comfortable via a virtual platform.

84. Mpanza testified that the 1st Respondent considered the reasons for a candidate to request to participate virtually on interviews. In Mr. Mseleku’s case, he had been attending a weeklong training in Pretoria and could not attend the interviews face to face. The reason relied upon by the 1st Respondent was reasonable and plausible. Moreover, the score of 52% achieved by Mr. Mseleku did not show that attending via the virtual platform put him in a more advantageous position than the others. Thus, it is my finding that the 1st Respondent did not commit any unfair practice by allowing Mr. Mseleku to participate virtually in the interviews for the position in question.

85. Based on the evidence before me, it is my finding that the Applicant failed to prove that the 1st Respondent committed an unfair labour practice against her in appointing the 2nd Respondent to the position of head of unit (NCV) Ref: HODNPS02/11/2022.

AWARD

86. I hereby find that the 1st Respondent, Head of DHET-KwaZulu Natal did not commit any unfair labour practice against the Applicant, PSA obo Naicker A by appointing the 2nd Respondent, SADTU obo Ngcobo S G.

87. Accordingly, the Applicant’s Case is dismissed.

88. There is no order as to costs.

L Mkhize

Arbitrator 08 May 2024
ELRC94-23/24 KZN