Case Number: PSES 2/0910 WC
Province: Western Cape
Applicant: NAPTOSA obo Gavin Adams
Respondent: Department of Education, Western Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Cape Town
Award Date: 2 November 2009
Arbitrator: Bella Goldman
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD IN CAPE TOWN
Case No PSES 2/0910
In the matter between
NAPTOSA obo Gavin Adams Applicant
Department of Education Western Cape Respondent
ARBITRATOR: Bella Goldman
HEARD: 26 August and 21 October 2009
DELIVERED: 02 November 2009
SUMMARY: Labour Relations Act 66 of 1995 – alleged unfair labour practice relating to promotion in terms of section 186(2)(a) – whether not short listing an applicant amounted to an unfair labour practice in terms of 186(2)(a)
DETAILS OF THE HEARING AND REPRESENTATION
1. The arbitration hearing was held at the Cape Town offices of the Labour Relations Division of the respondent on 26 August 2009 and 21 October 2009. The applicant was initially represented by Faeez Tassiem, Union Official but eventually took over the presentation of his own case. Ms Monique Stoffels represented the respondent. It was agreed that closing argument would be submitted in writing. The proceedings were digitally recorded.
ISSUE TO BE DECIDED
2. Whether the respondent by not short listing the applicant for the advertised post of Deputy Director: Internal Human Capital Development (Teacher and Public Service Development) subjected the applicant to an unfair labour practice in terms of section 186(2) (a) of the Labour Relations Act 1995 as amended (LRA).
BACKGROUND TO THE ISSUE
3. The applicant is employed as an office based educator and hold the post of Deputy Chief Education Specialist which resides in the Further and Education and Training Directorate. He earns R240, 816.00 per annum. The applicant applied for the advertised post number 514 of Deputy Director: Internal Human Capital Development (Teacher and Public Service Development) which resides in the Internal Human Capital Development Directorate. The applicant was not short listed and referred an unfair labour practice dispute to the council on the basis that he is in possession of the minimum requirements and competencies for the job and that they exceed those of the short listed applicants and that the advertisement and the criteria in terms of which applications were measured were designed around a particular person, the successful applicant, who had been acting in the post as opposed to the functions of the post.
4. The minimum requirements of the post were a recognised 3 year post matric qualification with at least 8 years teaching experience and 3 to 5 years management experience in the public sector.
5. The recommendations were experience in the skills and teacher development environment and programmes; project management experience; financial management experience and a valid driver’s licence.
6. The applicant is not claiming that he should be appointed to the position in question or that the appointment of the successful candidate be set aside whilst the recruitment and selection process is revisited. The applicant is claiming compensation on the basis of procedural unfairness.
7. The respondent denied having acted unfairly. It claimed that selection criteria were developed from the requirements as per the advert. The information contained in each applicant’s Curriculum Vitae (CV), application form and covering letter (if there was one) was scored out of a possible 30 points. Five applicants were short listed. The highest score allocated to the information contained in a short listed applicant’s written application was 29 out of 30 and the lowest score was 21 out of 30. The information contained in the applicant’s (Adams) written application scored 16 out of a possible 30.
8. The applicants’ information obtained from their CVs, application forms and covering letters were scored in terms of ten areas; 8 key performance areas (KPAs) and two competencies. For each area an applicant could score of 1, 2 or 3. 1 being complies, 2 being comply fully, 3 being exceed compliance. The competencies were:
· Driver’s licence
· Knowledge of relevant legislation
9. The KPAs were:
Management and facilitation of Human Resource and Development regarding bursary schemes for public service staff and educators
Experience in liaising with HEI’s and manage NPDs and ACE Programmes and other qualification programmes for serving under qualified educators
Management of NTA and other and other excellence award programmes
Management and co-ordination of the CPTD system
Experience in liaising and co-ordinating pre service training programmes through the bursary scheme for IPET
Experience in management of mentorship, internship learnership – learnership and School Business Management and Training Programmes
Experience in Management of Financial Resources
SURVEY OF THE EVIDENCE AND ARGUMENT
10. I have considered all the evidence and argument, but because the LRA (section 138(7)) requires an award to be issued with brief reasons for the findings, I have only referred to the evidence and argument that I regard as necessary to substantiate my findings and the determination of the dispute.
The parties each submitted a bundle of documents. The applicant’s bundle was marked ‘A’ and was numbered 1 to 45. The respondent submitted a bundle of documents on 26 August 2009 which was marked ‘B’ and numbered 1 to 80 and another bundle marked ‘C’ on the 21 October 2009 and was numbered 1 to 93. The documents in evidence were agreed as being what they purported to be without agreeing the contents thereof:
The applicant Gavin Adams gave evidence under oath. The following is a summary of his testimony:
11. The applicant is in possession of a BTech degree in Education and is in the process of completing a Masters Degree. Since 2001 the applicant has been responsible for managing the process of training / learnership within the FET colleges. The applicant was also responsible for managing the capacity building of staff members in FETs under the auspices of the Human Relations Development Directorate and served on one of its forums in this respect.
12. The applicant stated that he had more experience in the field in which the job than the successful incumbent Gavin de Bruyn who was an educator until he acted in the advertised position as from 1 October 2007.
13. The applicant stated that the advert and short listing selection criteria were designed around the detailed functions of the job as at that moment in time and hence only the person in job could score in terms of the criteria for short listing. The applicant stated that acronyms referred to in the advertisement and the criteria would only be known to the person in that position.
14. The applicant referred to his score sheet where the figure of 0 was changed to 2, the applicant stated that believed that this indicated that his score had been tampered with one he referred a grievance.
The respondent called one witness, Edgar Denis Kirsten, Director Human Capital Development who gave evidence under oath. The following is a summary of his testimony:
Edgar Denis Kirsten
15. The witness stated that the post in question was one of four Deputy Director Posts advertised within the Directorate. The witness said that the same panel was used to develop the criteria for short listing for all posts and to do the actual short listing. The witness was a member of the panel. Criteria were taken from advert and the advert from the job description of the position.
16. The witness denied that the applicant’s or any other score was tampered with; he stated that the members of the panel worked in pairs and moderated each others scores and through this system of moderation scores were changed. The application forms were distributed between the pairs and hence each member of the panel only saw a portion of the application forms. Acronyms did not disadvantage the applicants and members of the panel looked for similar experience / competencies in the information contained in the application forms. The witness was however not able to state what the similar experience / competencies were.
17. The witness asked for a postponement so that he could have sight of the CV’s in questions and notes and guidelines which defined the criteria to refresh his memories.
18. The witness continued giving evidence on 22 October 2009, it transpired on that day that the notes and guidelines which would have given an indication of what would amount to a requirement or competency of the post were missing.
19. The witness went through the application forms, CVs, and covering letters of the short listed applicants and the applicant (Adams) in this matter and stated that he was not able to explain why the applicant and the short listed applicants received the scores they did.
20. The witness was asked why each of the competencies and key performance area were equally weighted. The witness could not offer an explanation.
21. It was put to the witness that the required competencies of the position as per the selection criteria and advertisement did not correlate with what appeared to be a job description of the post which the applicant had taken of the internet. That job description did not refer to the programmes and acronyms referred to in the advertisement and the selection criteria. The witness stated that the document referred to was not the official job description.
22. The parties submitted argument in support of their respective cases which I will refer to where necessary in my analyses.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
23. In this case the applicant claimed that the unfair labour practice relating to promotion that he was subjected to; was not being short listed for a post. The applicant confirmed that he was not claiming the post or asking that the recruitment and selection process be revisited.
24. In a case where an applicant is claiming that he was subjected to an unfair labour practise relating to promotion he must show that he was overlooked for promotion (in this case read short listing for a promotion) when he posses objective attributes such as experience or qualifications which others who have been short listed do not possess and the employer cannot explain why he was overlooked (PSA v Dept of Justice & others (2004) 25 ILJ 692 (LAC))
25. Further if an employer has regard to irrelevant criteria when choosing between candidates this may be unfair. The employer if it uses certain selection criteria must be able to say what the criteria are and to indicate that they are reasonably related to the requirements of the position in question.
26. In this case, the respondent advertised a post. The advertisement referred to certain KPAs in terms of which applicants were short lists. The KPA referred to acronyms which only a person who was in the job would understand. The acronyms referred to very specific programmes and schemes. No one except the successful applicant could score for the most part in terms of those KPA’s. The respondent’s witness was referred to a job description in which none of the acronyms were referred to. The witness stated that that it was not the Job Description of the post; however the respondent did not discover the actual job description.
27. Further the witness was not able to explain why all the selection competencies and KPAs were equally weighted nor could he explain why the applicant and the other shot listed applicant (apart from the successful applicant) received the scores they did. I looked though the CV’s and application forms and could not understand how apart from the successful applicant the short listed applicants and the applicant in this case received the scores they did. In the case of the successful applicant he was the only one who was actually undertaking the tasks and who could refer to the KPAs as per the advertisement and the criteria.
28. In this case the respondent through its witness was not able to explain why the applicant and the short listed applicant’s received the scores they did in terms of the selection for short listing criteria. The respondent was not thus able to show that the applicant was less able albeit on paper than the short listed applicants and he also could not explain as to how the panel arrived at an equal weighting for each of the KPA’s and competencies.
29. For the reasons stated above I find that the respondent did not act fairly in the short listing of applicants for the post in question, in that the employer could not show that a valid and fair process was used for short listing and hence the applicant was subjected to an unfair labour practise in terms of the LRA. It should be noted that it is particularly important that the processes of the employer are seen to be valid and fair where the employer is part of the Public Service.
30. The applicant in his closing argument requested that he be financially compensated in terms of amounts and for losses which I do not have the jurisdiction to award.
31. Given that it has not been proved that should the applicant have been short listed he would have been the successful applicant, I find that it would be fair and equitable to order that the respondent pay the applicant compensation equal to the remuneration he would earn over a period of one and a half months which amount to R30, 102.00 (R240, 816 divided by 12 x 1.5)
32. I find that the applicant was subjected to an unfair labour practice relating to promotion in terms of the LRA in that the respondent did not act fairly when it short listed applicants for the post of Deputy Director: Internal Human Capital Development (Teacher and Public Service Development).
33. The respondent, Department of Education Western Cape is ordered to pay the applicant, Gavin Adams the sum of R30, 102.00 by no later than 31 December 2009 after which interest will run at the prescribed rate.
34. No order as to costs is made
Arbitrator/Panellist: Bella Goldman