Case Number: PSES620-09/10
Province: Western Cape
Applicant: R.S. Baleka
Respondent: Department of Education, Western Cape
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Adderley Street, Cape Town
Award Date: 16 September 2010
Arbitrator: Mr L Martin
IN THE EDUCATION LABOUR RELATIONS COUNCIL HELD AT CAPE TOWN
Case No PSES620-09/10
In the matter between
DEPARTMENT OF EDUCATION WESTERN CAPE Respondent
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
The arbitration took place at the offices of the Department of Education Western Cape in Adderley Street Cape Town on Thursday 5 August 2010 and 2 September 2010.
The applicant, Mr. Royal SabelaBaleka (Baleka) was represented by Mr. E. Simons, a practicing attorney. The respondent, the Department of Education Western Cape (the respondent), was represented by Mr. L Tshangana, a senior labour relations officer.
At the conclusion of the arbitration the parties undertook to submit closing arguments in writing by no later than Friday 10 September 2010.
THE ISSUE IN DISPUTE
4. Does the failure of the respondent to shortlist Baleka in respect of his application for the post of deputy principal constitute an unfair labour practice as contemplated in section 186 (2) of the Labour Relations Act 66 of 1995 as amended (the Act)?
THE BACKGROUND TO THE DISPUTE
5. Baleka is an educator at NomsaMapongwana Primary School which is located in Mandela Park,Khayelitsha.
6. Baleka is currently a head of department and earns R17,000.00 (seventeen thousand rand) per month.
SUMMARY OF EVIDENCE AND ARGUMENT
7. The respondent handed a bundle of documents into evidence.
8. It was common cause between the parties that the post in question had been readvertised in January 2009.
Baleka and Eric MlungiseleliMagodla (Magodla), the head of IMG(Institutional Management and Governance), testified under oath for the applicant.Isaac Sigqumo(Sigqumo) a member and deputy chair of the School Governing Body(SGB) and NompumeleTywakadi (Tywakadi) the principal testified under oath for the respondent.
THE EVIDENCE FOR THE APPLICANT:
Baleka had applied for the post and was unsuccessful.
Consequent upon Baleka’slodging a grievance, Magodla, who was the school inspector at the time (in 2008), had found that he should have been shortlisted and accordingly instructed that the post be re-advertised.
While Baleka testified that he had applied only once for the post it was argued by
Mr. Simons that he had in fact applied twice for the post.
Baleka wants the post to be re-advertised and interviews to be conducted by a neutral panel as the entire SGB is subject to the influence of the principal of the school. She also has a personal vendetta against him.
The school will not make an announcement as to whether or not the post has been filled. There is however someone currently acting in the position.
In his view Baleka meets the requirements of the position.
17. Baleka had not been shortlisted as his application, a copy of which is on page 9 of the respondent’s bundle of documents, was defective in that he had not completed section C thereof.
It was important to complete section C of the application form. The section says “attach particulars if necessary”.
The form requires that it be completed fully and Baleka considers his form to have been fully completed.
While it was put to Baleka that he had completed section C in his first application for the position he could not recall whether he had attached his qualifications on that occasion
Speaking hypothetically Baleka, as a parent on an SGB, would deal with an incomplete job application form taking into account which section had not been completed by the applicant. He would look at the person as a whole.
THE EVIDENCE FOR THE RESPONDENT:
Sigqumo was part of the shortlisting process. According to him the application form had to be filled in completely (i.e. there had to be no gaps) and had to be correct (i.e. the information had to be relevant).
If the application form was not complete the application would be disqualified.
Baleka’s application had been disqualified as it was not complete in that there was a gap because of the fact that section C had not been filled in. This section pertained to the applicant’s academic and professional qualifications which could be attached later on. Two legs had to be completed and correctly.
It was fair to disqualify on the basis of its being incomplete as attachments were not looked at yet. The instruction was to complete the form.
If the applicant had numerous qualifications one or more could be filled in on the form and the remaining could be attached.
The only reason why Baleka’aapplication had been rejected was because he did not complete section C. This had not been discussed with the respondent.
He had not met one of the primary requirements so his application could not be taken to another criterion.
Additional criteria were introduced by the interviewing committee before shortlisting of which this was one example, as there may be a hundred applications to deal with.
These criteria may differ from school to school.
Section C does not give an instruction to exercise an option whether or not to attach. The instruction was to complete the form.
Tywakadi was involved in the process as the departmental representatribve on the panel to ensure that the interviews were properly conducted. She was not involved in the counting or scoring process but was merely an observor.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
I accept the argument of Mr. Simons that Baleka had applied twice for the post. This dispute in fact is in respect of the second application for the position of deputy principal.
The evidence shows that Baleka had not completed section C of the application form.
It is clear however that Baleka had attached documentary evidence of his qualifications to the application form.
36. It was argued by Mr. Simons that Mage’s form was also incomplete and yet she had been shortlisted. This he argued constituted the unfair labour practice as Baleka had been disqualified for having an incomplete form.
37. The testimony of Sigqumo was clear in respect of what he would have considered a completing of section C. His testimony was that even one only of the qualifications could be filled in while the rest were attached. That explanation is sufficiently clear for me to understand that not everything must be filled in in the section but that at least something must be filled in.
38. The evidence is also clear that Sigqumo had been directly involved in the establishment and application of the selection criteria.
39. The evidence shows further that Baleka’stestimony was in fact that his main objection is in respect of the “sifting” for the post. The evidence shows clearly that Sigqumo had been involved at this stage while Tywakadi was not involved in the scoring or counting but was merely an observer at the interviews.
40. That the criteria on the second occasion of the post to be filled remained the same as it had been on the first occasion had been determined by the respondent’s representative at the interviews, Mr. Philander.
41. As stated above the main contention of Baleka according to his own testimony was that he had considered his application to have been completed because he had attached his qualifications notwithstanding the fact that he had not filled in section C of the application form.
42. The further evidence of Baleka’s application form on the occasion of his first application for the post in 2008 shows that he had in fact filled in section C on the form. I am therefore of the view that Baleka was aware of his having to fill in section C and that he was negligent in failing to do so on the occasion of his second application for the post.
43. In respect of the validity of the primary criteria including that all sections of the application form having to be filled in and the failure of which would have as a consequence that the application would be rejected, I find this to be a valid criterion. I am of the view that its validity derives from the fact the SGB, as testified to by Tywakadi, had had 100 applications to deal with.
44. Baleka’s disqualification on the basis of his having failed to complete section C of the application form cannot therefore be said to constitute an unfair labour practice on the part of the respondent.
45. Regarding the argument that the respondent had perpetrated an unfair labour practice by virtue of Mange’s not having been similarly disqualified for failing to have submitted a completed application form, there is no evidence of her having failed to comply with a primary criterion set by the SGB.
46. The criterion in question was that of applicants having to complete all sections of the application form. Mange, in terms of the criteria established by the selection panel as testified to by Sigqumo had completed all the sections on the application form. This she had achieved by completely answering at least one question in each section of the application form.
47. That the SGB considered this sufficient for Mange to advance to the next stage and ultimately to the shortlist isvalid
48. This cannot therefore constitute a ground for the finding of the respondent’s having perpetrated an unfairlabour practice against Baleka.
49. Having considered all the evidence and arguments presented art this arbitration I find that the respondent had not committed an unfair labour practice against Balekain disqualifying him in respect of his application for Post Number0134 of Vacancy List 1/200 and by not similarly disqualifying Mange.
50. This application for relief in terms of the provisions of the Labour Realations Act 66 of 1995 as amended is dismissed.
COMMISSIONER: L. MARTIN