Case Number: PSES 298-08/09 GP
Applicant: R A TSOTETSI
Respondent: GAUTENG DEPARTMENT OF EDUCATION
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 17 September 2009
Arbitrator: K DRISCOLL
IN THE EDUCATION LABOUR RELATIONS COUNCIL
Case number: PSES298-08/09 GP
In the arbitration between:
R A TSOTETSI (Applicant)
GAUTENG DEPARTMENT OF EDUCATION (Respondent)
1. Details of hearing and representation
The above arbitration was held on the 3rd of September 2009 at the Respondent’s offices, Johannesburg. Mr. Moodley, an attorney, represented the Applicant and Mr. Selowa appeared on behalf of the Respondent. No interpreter was required. The proceedings were mechanically recorded and witnesses gave evidence under oath.
2. Issue to be determined
Whether the Respondent committed an unfair labour practice in not promoting the Applicant.
3. Preliminary issues
Both parties submitted bundles of documents to the arbitration and agreed that the documents are what they purport to be.
After narrowing the issues the parties agreed that the following are common cause:
1) That the Applicant applied for the CES post, Johannesburg Central: Curriculum Development and was interviewed and recommended for the post.
2) That the CES Johannesburg Central is presently vacant.
3) That male candidates were appointed to CES positions in other districts.
The parties agreed that the following remain in dispute:
1) Whether the CES post, Johannesburg Central was erroneously advertised as it was not vacant at the time.
2) Whether the Respondent applied its Employment Equity Plan fairly and consistently.
3) Whether the Respondent’s Employment Equity Plan was applicable as at October 2007 and that the 50% women target was applicable.
4) Whether the Employment Equity Plan target was a minimum of 30% to a maximum of 50%.
4. Survey of evidence
The Applicant testified that he had been appointed as a DCES co-coordinating the senior phase unit within the Curriculum Development sub-directorate on the 1st of September 2004. The Applicant testified further that when the CES posts had been advertised on the 23rd of October 2007 he had been acting in the position of CES post, Curriculum Development (See page 1 Applicant bundle) in Johannesburg South and as the post had not been vacant he had applied for the post in Johannesburg Central. The Applicant stated that in his view the post had been vacant as it had been advertised. The Applicant stated further that the interview panel had included the Directors for Johannesburg South and Johannesburg Central and neither had indicated to him that the post had been erroneously advertised. The Applicant testified that in January 2008 his then Director had informed him that he had been recommended for the post and that they were awaiting approval from the Head of Department. The Applicant testified further that his Director had subsequently informed him that the Head of Department had declined to appoint him on the basis of equity but that he (Director) would make an appointment with the Head of Department as the Employment Equity Plan was not applicable in that district. The Director had then submitted the equity grid and a motivation as to why the Applicant could be appointed nit the Head of Department had indicated that the Respondent considered equity on a provincial and not on a district level. The Applicant stated that he had stopped acted in the CES position in September 2008, but that the post had not been filled.
The Applicant testified that he had lodged a grievance (See pages 2 to 5 Applicant bundle) in January 2008 as two of the CES posts had been filled by men (Gauteng West and Johannesburg East) and that one of the candidates, Mr. Koapeng, who was a personal friend of the Applicant and confirmed that he had been appointed. The Applicant testified further that he had then written a letter (See page 7 Applicant bundle) as he had not received any response to his grievance. The Applicant stated that the Respondent had informed him that the matter was being investigated but had not indicated that the post had been erroneously advertised.
With regard to the Respondent’s Employment Equity Plan (the Plan) the Applicant stated that he was aware of the Plan but had not been informed as to how it would be implemented and that in his view the Plan had not been applicable at the time as it only applied to 2005. The Applicant agreed that in terms of the Employment Equity Act a plan should be in place for not less than one year but not more than five years. The Applicant referred to a table he had compiled of his district (See page 24 Applicant bundle) and stated that there had been three CES posts, one of which had been filled and that there were three women and one man in managerial positions. The Applicant referred to CES posts which were advertised between January and December 2008 and stated that males had been appointed to some of these positions (See page 25 Applicant bundle). The Applicant stated that he felt he had been unfairly discriminated against on the basis of his gender especially as other males had been appointed. The Applicant stated further that he did not have an issue with the appointment of women, only that it be done fairly and that if the Respondent had not achieved its target of 50% then it should not have appointed males to the other CES positions.
Mr. Ismail, Deputy Chief Education Specialist in charge of recruitment for the district testified that between October 2007 and April 2008 he had occupied the position of Senior Education Specialist, Recruitment. Mr. Ismail testified further that when vacant posts were identified they were advertised and after the short listing, interview process the recommendations were sent to his office so that he could check compliance. Mr. Ismail stated that the implementation date of the Plan was the 22nd of February 2005 and that the Plan was to stay in place until reviewed or five years had elapsed. Mr. Ismail stated further that as far as he was aware the Plan had not been reviewed. Mr. Ismail testified that the Respondent should have attempted to attain the percentage indicated in terms of its demographics and that these targets should have been attained by 2005. Mr. Ismail testified further that if the target was not attained then those offices which had not reached the minimum target must promote the attainment of the targets through promotion, recruitment and placement. Mr. Ismail agreed that at the time of the advertisement the Respondent had reached a target of 48% women and that this was above the minimum target of 30%. Mr. Ismail however stated that he had not been involved in the decision to decline the Applicant’s appointment. Mr. Ismail stated further that he was not aware of the criteria which the Head of Department had used to determine which CES posts would be earmarked for female candidates and that as far as he was aware the only criteria were appropriateness and representivity.
Mr. Ismail confirmed that the CES post in question was presently vacant but stated that when he had been appointed to the position of Deputy Chief he had checked the Respondent’s records and they had shown that the position had in fact been occupied at the time it had been advertised and that the incumbent had been on secondment to Kwa-Zulu Natal. Mr. Ismail testified that before a post was advertised it was ordinarily checked to confirm that it was vacant and where a post was erroneously advertised then his directorate would request that the advertisement be withdrawn. Mr. Ismail confirmed that the CES post in question had not been withdrawn. Mr. Ismail agreed that it had been unfair to have allowed the Applicant to apply for the post, go though the interview, lodge a grievance and refer the matter to arbitration before he was informed that the post had not been vacant.
5. Summary of argument
The Applicant submitted that the Respondent had stated two reasons why the Applicant had not been appointed, namely that the post had not been vacant and equity considerations. The Applicant contended that the post had not been vacant was a fabrication and that this was not the real reason why the Applicant had not been appointed. The Applicant argued further that if the post had not been vacant it was improbable that the Respondent would not have raised this at any time between 2007 and 2009.
The Applicant submitted that at the time of the advertisement 48% of the CES positions had been held by women and that this was markedly higher than the minimum requirement of 30%. The Applicant submitted further that the Respondent had failed to discharge its onus of proving that it had acted fairly by applying employment equity criteria. The Applicant contended that the Respondent had relied on the evidence of a single witness who had been unable to answer certain material questions. The Applicant submitted that there was nothing to prevent the Applicant from being appointed to the position as he was qualified for the post and was the recommended candidate and his appointment would not have affected the Respondent’s Employment Equity Plan. The Applicant argued that the Respondent had nonetheless appointed other males to CES positions between January and December 2008 but had declined to appoint the Applicant. The Applicant requested that the Applicant be appointed to the claimed position and that should this not be possible, that he be compensated.
The Respondent submitted that the Applicant bore the onus of proving that the conduct of the Respondent was unfair. The Respondent referred to Dlamini and Toyota SA Manufacturing (2004) 25 ILJ 1513 (CCMA) where it was held than an arbitrator should be hesitant to interfere with managerial discretion and that only if the decision was shown to be grossly unreasonable that the arbitrator should interfere.
The Respondent submitted that the reason the Applicant had not been appointed was equity and that this decision had been based on the figure of 48% female CES’ at the time of the advertisement, which was below the target of 50% in terms of the Employment Equity Plan. The Respondent contended that it was only through recruitment that the Respondent could address issues of equity. The Respondent argued further that the appointment of the Applicant had been declined was because his appointment would not have assisted the Respondent in attaining its target. The Respondent submitted that the Applicant had not adduced any evidence to corroborate his assertion that other male candidates had been appointed during the same time period.
The Respondent submitted that the post in question had not been vacant at the time and had reflected as such on the persal system. The Respondent submitted further that although the incumbent had not physically been present he had nonetheless occupied the post. The Respondent contended that the Applicant had failed to show that the Respondent’s decision had been grossly unreasonable. The Respondent argued further that the decision had been reasonable as the Respondent had an Employment Equity Plan in place and had applied it reasonably. The Respondent requested that the Applicant’s case be dismissed as to grant otherwise would imply that the Respondent had not complied with its imperative to ensure representivity.
6. Assessment of evidence and argument
Unfair conduct in the context of an unfair labour practice refers to conduct that is reprehensible in view of societal norms (see Leonard Dingler Employee Representative Council & others v Leonard Dingler (Pty) Ltd & others 1997 BLLR 1438 (LC)) and is arbitrary or inconsistent, whether negligent or intended. The courts and arbitrators have, however, been hesitant to interfere in the area of management prerogative, the Court in Goliath v Medscheme (Pty) Ltd 1996 BLLR 603 (IC) remarking that “..in the absence of gross unreasonableness which leads the court to draw an inference of mala fides, this court should be hesitant to interfere with the exercise of management’s discretion.” The employee is required to show that the employer acted in a defective manner by not applying its mind properly to the matter (see SAMWU obo Damon v Cape Metropolitan Council 1999 ILJ 714 (CCMA)), or that the employee was overlooked on the basis of some unacceptable, irrelevant or invidious comparison (see Goliath v Medscheme).
The Employment Equity Act renders unfair any act or omission involving the unfair discrimination, either directly or indirectly against any employee on various grounds. An intention to discriminate need not necessarily be present. The impact of the discriminatory practice is the decisive factor (See Association of Professional Teachers & another v Minister of Education & others (1995) 16 ILJ 1048 (IC)). Discrimination may therefore exist where others are granted benefits the employee is denied, even though the discrimination entails no actual prejudice to the employee. “Thus employees who are denied promotion lose nothing in an objective sense, they are merely denied the benefits accorded to those who are promoted (Grogan, J, Workplace Law, page 281). Section 6(2) of the Employment Equity Act however provides that it is not unfair discrimination to “take affirmative action measures consistent with the purpose of this Act.” The purpose of the Employment Equity Act as stated in the preamble is to “achieve equity in the workplace by (a) promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination.” Thus an employer must show that the discrimination was fair (See Section 11 of the Employment Equity Act).
In Independent Municipal & Allied Workers Union v Greater Louis Trichardt Transitional Local Council (2000) 21 ILJ 1119 (LC) it was held that an employer can only rely on affirmative action as a defence if it has an affirmative action policy. Section 20(1) of the Employment Equity Act requires a designated employer to “prepare and implement an employment equity plan which will achievereasonable progress towards employment equity in that employer’s workforce.” (Emphasis added). Section 20(2) further requires that the employment equity plan “must state – (a) the objectives to be achieved for each year of the plan;” and “(e) the duration of the plan, which may not be shorter than one year or longer than five years;”. (Emphasis added). A designated employer is in addition required to prepare a subsequent employment equity plan prior to the end of its current plan (See Section 23). It is common cause that the Respondent’s Employment Equity Plan (Circular 12 of 2005) refers in its annexure to targets set for 2004 and 2005 and that the Respondent has not presented a new Employment Equity Plan. Although I am of the view that the targets set by the Respondent would no longer have been applicable at the time of the Applicant’s interview and recommendation in terms of Section 20 of the Employment Equity Act, in Gordon v Department of Health, Kwa-Zulu Natal (2004) 7 BLLR 708 (LC) the Labour Court held, and I concur, that although plans were relevant, the proper test was whether there was a rational connection between the decision to appoint or not to appoint. On appeal the Supreme Court of Appeal reiterated the importance of an affirmative action plan in showing that the employer had acted rationally (See Gordon v Department of Heath (2008) 29 ILJ 2535 (SCA) and held that an employer must have a valid affirmative action plan in order to implement affirmative action (See also Head, Western Cape Education Department & others v Governing Body, Point High School & others (2008) 5 SA 18 (SCA)). The Respondent’s Employment Equity Plan was in my view still applicable at the time of the Applicant’s interview and recommendation.
What does appear from the Circular is a very specific drive by the Respondent to promote women into managerial positions and thus a preference for female candidates for appointment to the CES posts is not in my view inherently unfair. The Respondent’s Employment Equity Plan does not in addition, create an absolute barrier or an ‘insurmountable obstacle’ to the Applicant being appointed to the post (See Du Preez v Minister of Justice and Constitutional Development & others (2006) 8 BLLR 767 (SE)) and it is apparent that male candidates were appointed to CES posts during the period January to December 2008. Although the Respondent argued that as the Applicant did not submit any supporting documents regarding such appointments I am persuaded that the Applicant was able to demonstrate sufficient knowledge with regard to at least two of the appointees (See page 24 Applicant bundle) for me to accept that this was indeed the case.
The question then is whether the Respondent applied its Employment Equity plan fairly, consistently and rationally. Clearly the CES post was created to enhance the effective functioning of the directorate. Section 195(1) (b) of the Constitution requires the public service to promote the “efficient, economic and effective use of resources…” and (j) that the “Public administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness and the need to redress the imbalances of the past to achieve broad representation.” The requirement that the Respondent should be ‘broadly representative’ must therefore be balanced with the Constitutional imperative to provide an efficient and effective service. The refusal by the Respondent to appoint the Applicant and to leave the post vacant in my view, overlooked the Constitutional imperative to maintain efficiency, which in my view is of critical importance in the education sector (See Coetzer & others v Minister of Safety & Security & another (2003) 24 ILJ 163 (LC) and Settlers Agricultural High School v Head of Department: Department of Education, Limpopo Province (2002) JOL 10167 (T)). In the public service the goal of representivity must be pursued rationally and rationality cannot be served where a public service fails to make any appointment simply because there is no candidate available from the intended group of beneficiaries of affirmative action. (See Coetzer & others v Minister of Safety & Security & another and Settlers Agricultural High School v Head of Department: Department of Education, Limpopo Province supra). In fact the Respondent adduced no evidence that a suitable female candidate was available for appointment to the post in question and thus the only objection to appointing the Applicant was his gender.
In Kadiaka v Amalgamated Beverage Industries (1999) 20 ILJ 373 (LC) the Court held that discrimination is unfair if it is purposeless, or for a purpose of insufficient importance to outweigh the rights of the employee or if it is ‘morally offensive’. It is common cause that the Respondent advertised 48 CES positions in October 2007 (See page 1 Respondent bundle). In terms of the Respondent’s equity grid (See page 2 Respondent bundle) 52% of the CES posts were occupied by men and 48% by women. I accept that the Respondent intended to use the recruitment process to attain the desired 50% female incumbents. However, it is unclear whether the Respondent intended to appoint women to all of the advertised posts, which would have resulted in a skewered outcome in terms of the other targets set and would in addition have been in contravention of Section 15(4) of the Employment Equity Act (See Engineering Council of SA v City of Tshwane Metropolitan Municipality (2008) 6 BLLR 571 (T), or whether certain positions were ‘earmarked’ for female candidates. If it was the Respondent’s intention to appoint only female candidates then the Respondent should not, as it appears to have done, have interviewed or appointed any male candidates. As it appears that male candidates were indeed appointed, I can only conclude that the Respondent designated certain of the posts for female candidates only. There is however, no evidence before me that the Respondent applied any rational criteria to such a selection process. For instance, it would be logical for the Respondent to have focused on those districts who had not attained the minimum 30% target, such as Gauteng East and Gauteng West, or who had not attained the 50% target such as the Head Office. (See page 2 Respondent bundle). Mr. Ismail was unfortunately unable to state what criteria had been applied when the Applicant’s post had been selected for the application of the Respondent’s Employment Equity Plan. I am therefore inexorably drawn to the conclusion that the Respondent did not apply its Employment Equity Plan rationally or consistently and that the Applicant was discriminated against on an arbitrary basis.
I have considered the Respondent’s argument that in any event the post in question had not been vacant at the time and had been erroneously advertised. It was however conceded by Mr. Ismail that the process followed when advertising a post is to first verify that the post is indeed vacant and should it be erroneously advertised, that the advertisement would be withdrawn. It was agreed that the advertisement for the post in question was never withdrawn, that the Applicant was interviewed and recommended for the post and was not informed until the day of the arbitration that the post was not vacant when advertised. It further appears that the Applicant submitted a grievance and was informed that the Respondent was investigating the matter and yet there was no indication by the Respondent that the post had in fact been erroneously advertised. I am therefore of the view that, on a balance of probability, that the post was vacant at the time it was advertised. It further appears that the Applicant is suitably qualified for the post and as the recommended candidate, may be appointed to the post. I have also considered the Respondent’s submission that granting the Applicant’s request would imply that the Respondent had not complied with its imperative to ensure representivity. I agree that the Respondent has a Constitutional imperative in this regard, however both the Constitution and the Employment Equity Act, and in fact the Labour Relations Act, require that the Respondent act fairly in its employment practices. The existence of an employment equity plan does not in my view exempt the Respondent from this requirement.
As the Applicant did not request retrospective appointment I am of the view that it would be the most practical to appoint the Applicant to the post with effect from the 15th of October 2009.
1) The Respondent committed an unfair labour practice in not promoting the Applicant.
2) The Respondent unfairly discriminated against the Applicant on an arbitrary ground.
3) The Applicant is to be appointed to the position of Chief Education Specialist, Curriculum Development, Johannesburg Central with effect from the 15th of October 2009.
4) There is no order as to costs.
Arbitrator 17 September 2009