Case Number: PSES 459 – 12/13 LP
Applicant: Mr. NJ Mashaba
Respondent: Department of Education, Limpopo
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 7 August 2013
Arbitrator: Coen Havenga
IN THE ELRC ARBITRATION
Mr. NJ MASHABA “the Applicant”
DEPARTMENT OF EDUCATION – LIMPOPO PROVINCE “the 1ST Respondent”
Ms. TE BALOYI “the 2ND Respondent”
Case Number: PSES 459 – 12/13 LP
Date of arbitration: 07 June 2013
Date written arguments received: 09 July 2013
Date of award: 07 August 2013 (extension arranged)
Education Labour Relations Council
261 West Avenue
Tel: 012 663 0452
Fax: 012 643 1601
DETAILS OF HEARING AND REPRESENTATION
The hearing of the arbitration took place on 07 June 2013, at the offices of the Limpopo Department of Education in Polokwane.
The Applicant is Mr. NJ Mashaba, represented by Dr. S Gregan, an attorney. The 1st Respondent is the Department of Education, Limpopo Province, represented by Ms. T Netshitungulu. The 2nd Respondent is Ms. TE Baloyi, represented by Mr. Mohlatole, a PEU official.
TERMS OF REFERENCE AND ISSUES TO BE DECIDED
The arbitration takes place in terms of the referral of the dispute by the Applicant. A pre – arbitration meeting was held by the parties. The parties agreed on the following:
The Applicant applied for the position of deputy principal at Mafumani Secondary School.
The Applicant was interviewed but was not recommended or not appointed. The 2nd Respondent was appointed.
The facts in dispute are the correctness of the procedure followed in the appointment, whether the procedure was flawed and amounts to an unfair labour practice and whether the process should be re-done.
The relief sought is that the matter is referred back to the Interview Committee, and/or that the Applicant be compensated.
To empower the arbitrator to determine whether the 1st Respondent committed an unfair labour practice relating to promotion by not appointing the Applicant to the deputy Principal post at Mafumani Secondary School, and if so, what relief is to be awarded;
The 1st Respondent submitted documents contained in Bundle B, page 1 to 50, and the Applicant submitted documents contained in Bundle A, page 1 to 68.
APPLICANT submitted the following opening statement:
The Applicant was short listed and interviewed.
He received the 3rd highest marks in the interview.
He cannot say or prove that he was the best candidate.
The procedure was flawed.
No workshop was held for the panel prior to the process.
The principal should have recused himself from the process as he knew the 2nd Respondent well.
The two issues in dispute is the lack of the workshop and the constitution of the interview panel.
It constituted an unfair labour practice.
The appropriate remedy would be to redo the whole process.
1st RESPONDENT submitted the following opening statement:
There was no unfair labour practice committed against the Applicant.
Witnesses will testify that a workshop was held.
The interview panel was properly constituted.
There was no arbitrary action by the Respondent.
2nd RESPONDENT made no opening statement.
SUMMARY OF EVIDENCE
The proceedings have been recorded mechanically, and a short summary of the Applicant’s and Respondents’ witnesses’ evidence follows below.
NTSACCO MASHABA testified that he is employed by the DOE as an educator at Mafumani Secondary School. He acted as deputy principal before the 2nd Respondent was appointed. He applied for the post when it was advertised. The advert had no special requirements. He was telephonically informed by the principal that he was shortlisted. He went for an interview. It felt as if it was window dressing. He had a good interview according to him. He headed the mathematics and physical science department at the time. B26-31 reflect his score sheet. He received scores of 73, 72, 68 and 62. He was informed he was ranked no. 3, and was therefore not appointed. He believes the process was flawed. The 2nd Respondent was a close friend of the principal, who named the interview panel. He has a feeling that an injustice was done. He does not know whether any of the panelists were prejudiced. He has a feeling of being treated unfairly. He bases it on information he received. A66 is the minutes of the short listing meeting. A67 contains a remark that no one is acting in the post. He was surprised as he was announced to be acting. He cannot say anything about the interview panel’s capability, but he feels there was a wrong before they were appointed. B47 and 48 reflects a workshop for short listing and interview for a HOD post. The principal refused to let the SGB members go to a later workshop for the deputy principal post. During cross – examination he testified that it is not a requirement that the SGB members attend a workshop, but it is common practice. According to what he heard the principal suggested the panel members. He should have recused himself because he knew the incumbent, they were friends. He heard from friends they were friends. He saw her driving his car. He is a member of SADTU. There was a SADTU observer in the process. He made no objections, maybe he made a mistake. He has a feeling of unfairness. The principal was not the chairperson of the interview panel.
MARIA SONO testified that she is an educator and secretary of the SGB. The principal and 2nd Respondent were friends. The principal said in a staff meeting the post is for a lady. She was then surprised that a lady was appointed. He said he wanted to balance the equity as the other deputy is a man. There was no such requirement in the advert. On page 18 of Bundle B it shows that the admin clerk signed as secretary. The witness was also an applicant for the deputy principal post. The SGB did not attend a workshop for this post. They only attended one for the HOD post.
Note: At this stage the representative for the 1st Respondent placed on record that they do not dispute that no workshop was held specifically for the deputy principal post, but will argue that they did attend a workshop as reflected on page 47 and 48 of bundle B, which is sufficient. The parties agreed that the issue that needs to be addressed is whether any workshop, i.e. including the one for the HOD post, held within the three year term of the SGB is sufficient.
During cross-examination she testified that she does not know what role the principal played in the interviews. She did attend a workshop for the HOD post during her term in the SGB. The provisions of Collective Agreement 1/2008 was part of the workshop.
YUZA MAKHUBELA testified that he is an educator and SGB member at Mafumani School. He attended the workshop for the HOD post. He was not at a workshop for the deputy principal post. His signature appears on page 47 of Bundle B. He heard there was another workshop for the deputy principal post. He did not attend as he did not receive an invitation. The governance phoned the principal and said they were absent. The principal called them to his office when the interview committee was appointed. The two applicants were excused. The principal requested the witness to write minutes. He said they must form a panel. The principal nominated names of panelists. The witness suggested Maria Sono to be on the panel because others were unknown to him. The witness was not involved in further processes. He has never seen pages 49 and 50 of bundle B before. The book in which he wrote the minutes is given to the principal after meetings. He only knows no. 7 of the persons introduced on page 49 as the interview committee, but he does not remember well. He does not remember writing their names down. The principal did not say why he recommended certain members. There were no-one from the school on the interview committee, all were co-opted. When he asked why he was excluded from further processes the principal said he joined the HOD and deputy principal posts together. He thinks the process of appointing the 2nd Respondent was unfair because he was not invited. During cross – examination he testified that he only heard about the principal being called about the workshop. He thought he will be the scribe for the whole process. He did attend one workshop. It dealt with Collective Agreement 1/2008.
ZONDIE SHIKHIBANE testified that he is from the governance department. They held a workshop for SGB elected for 2012/2013. They were informed of the short listing and interview processes provided for in Collective Agreement 1/2008. There are not specific workshops for specific posts. They only workshop the new SGB. According to the collective agreement newly elected SGB members have to attend one workshop. They invite the cluster for the workshop. In 2011 they did conduct a workshop for the Mafumani SGB. During cross – examination he testified that separate workshops are not held for each post. At the workshop SGB members are informed how to form panels and source people if they don’t have competencies. He would say the SGB did not do their work if one member dominates the process. They leave the creation of the panels to the SGB members.
VINCENT MTOMBENI testified that he was the deputy chairperson of the SGB at Mafumani in 2011. He was involved with the filling of the deputy principal post. They formed a panel for short listing and conducting interviews. They outsourced. They phoned suggested candidates and the ones that agreed were put on the panel. They then decided who would be the chairperson. The principal was involved as the resource person, to give advice. The principal only did what he was supposed to do. During cross-examination he testified that Makhubela was also a member of the SGB. There is a book containing all SGB minutes. He does not know where the book is. He is not a member of the SGB anymore. It is not correct that all the names were proposed by the principal. The witness proposed three names. The principal was only doing what he was supposed to do. The witness would propose a name, they write it down, then phone them with the phone on speaker, and those who accept are ticked off. They kept notes of the process which were collected by the circuit draft team, and they were satisfied that the panel was formed correctly. He was present in the other processes and all other SGB members were invited. Makhubela was not present at the meeting of the SGB confirming the interview panel, as they were advised by the district not to attend if one has an interest in the matter, and maybe he took that advice. All of them were invited to the meeting. He was not excluded. Makamu is a clerk at the school. They attended one workshop and he cannot remember if it was for the HOD or deputy principal post.
LAMSON NGWENYA testified that he is the principal of Mafumani School. He remember the interviews. He was the departmental representative. He had to observe and be the resource person. He submitted the applications to the interview committee. He did not influence the SGB in constituting the interview panel. They sat in a meeting where names were suggested, they contacted the nominees and some accepted and others not. They have powers to co-opt others to represent them. Only one of the four surrounding schools’ principals were available. Everybody was free to suggest a name. He cannot remember that there were any objections. There were no disputes afterwards. He never said in a staff meeting that the post has been reserved for a female. He only handed out blank score sheets. He did not score anywhere. He was just observing. Because Makamu is the administration clerk and because of that she was co-opted to be the secretary as Ms. Sono had serious interest as an applicant. They attended a workshop where collective agreement 1/2008 was dealt with. The chairperson of the SGB is responsible for calling meetings. They used his phone to call the proposed panel members. During cross – examination he testified that the Applicant did not act as deputy principal. He was never appointed to act as such. The purpose of the workshops is to equip the SGB with knowledge of their responsibilities regarding the appointment of educators on all levels. The principles are the same for all levels. It is not true that he decided not to attend the workshop. The governance decides and it is not for him to agree or not. He was the principal until 05 September 2012 when he was pushed out by the Applicant and his followers. The book containing the minutes should be at the school. He cannot remember whether Makhubela kept minutes. It is not true that he provided all the names. He knows the 2nd Respondent as being the appointed deputy principal. She was at the school when he got there in 2009. There is no special or close relationship between them, and he did not need to recuse himself. It is not true that he said a lady will be appointed. It is the HOD who makes the appointment. Number 2 to 7 on page 70, 71 of B were co-opted. It is not compulsory to have a member of the SGB on the panel. They thought it fit to have competent panel members. Makhubela did not attend the meeting because he had serious interest. He was not short listed for a post and submitted a grievance. He is not telling the truth. He did not influence the panel to appoint the 2nd Respondent. She obtained the most points.
SUMMARY OF CLOSING ARGUMENT
Both the Applicant and the 1st Respondent submitted extensive written closing arguments which form part of the record. I have studied and considered the contents of the submissions as well as the case law referred to, and will not repeat it here in full.
ANALYSIS OF EVIDENCE AND ARGUMENT
I have considered all the relevant provisions of the South African Schools Act, no. 84 of 1996 (SASA), the Employment of Educators Act, no. 76 of 1998 (EEA), the Personnel Administrative Measures (PAM), 1999, the provisions of Collective Agreement no. 1 of 2008 (Guidelines for sifting, short listing and interview procedures) as well as the case law relevant to the nature of this dispute. I have considered the arguments of the parties as well as the documentary evidence submitted.
The Applicant claims that the 1st Respondent committed an unfair labour practice relating to promotion by not appointing him to the deputy Principal post at Mafumani Secondary School.
Section 186 (2) of the Labour Relations Act, no. 66 of 1995, reads as follows:
“(2) ‘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 ………… of an employee….” .
The onus in an unfair labour practice disputes falls on the Applicant. The standard of proof applicable in hearings of this nature is identical to the civil standard – “the (applicant) must prove the case ……………on the balance of probabilities and not beyond reasonable doubt” – Meadow Feeds (Pietermaritzburg) vs. Sweet Food and Allied Workers Union (1998) Arb1.2.1.
The Head of Department must ensure that the governing body has met the statutory requirements imposed by the EEA when considering the recommendation by the SGB. If the governing body has not met the statutory requirements, the Head of Department must decline the recommendation.
Despite the order of preference of the SGB, the Head of Department may appoint any suitable candidate on the list, in terms of section 6(3)(f) of the EEA.
I have to decide whether the 1st Respondent acted fairly when it appointed the 2nd Respondent, instead of appointing the Applicant.
The Applicant must prove that the decision not to appoint him was unfair – see Ndlovu v CCMA (2000) 21 ILJ 1653 (LC). What is fair depends on the circumstances of a particular case and essentially involves a value judgement – see National Education Health & Allied Workers Union v UCT (2003) 24 ILJ 95 (CC) par 33. The fairness required in the determination of an unfair labour practice must be fairness towards both employer and employee – see National Union of Metalworkers of SA v Vetsak Co-Operative Ltd & others 1996 (4) SA 577 (A) 589C-D; National Education Health & Allied Workers Union v UCT supra para 38. In Provincial Administration Western Cape (Department of Health & Social Services) v Bikwani & others (2002) 23 ILJ 761 (LC) at paragraph – the Labour Court held that:
“There is considerable judicial authority supporting the principle that courts and adjudicators will be reluctant, in the absence of good cause clearly shown, to interfere with the managerial prerogative of employers in the employment selection and appointment process. Courts should be careful not to intervene too readily in disputes regarding promotion and should regard this an area where managerial prerogatives should be respected unless bad faith or improper motive such as discrimination are present.”.
The arbitration of a promotion dispute does not entail a hearing de novo, but a review of the employer’s decision. In this respect I have regard to the Constitutional Court’s examination of the concept of fairness in the matter of Sidumo and Another v Rustenburg Platinum Mines and others (2007), where it has been held that the arbitrator is not given the power to consider afresh what he would do but to decide whether what the employer did was fair.
The emphasis is not on the correctness of the employer’s decision but on the reasonableness of the decision. Provided that a decision by the employer to appoint one candidate instead of another is rational, no question of unfairness can arise. In the Point High School (supra) matter the Supreme Court of Appeal recently confirmed that a court or tribunal must not determine whether an education department could have arrived at a better decision in selecting a suitable educator for appointment to a teaching position, but whether its decision was a reasonable decision.
There are three basic requirements for a fair appointment or promotion. The procedure must have been fair, there must have been no unfair discrimination, and the decision must not have been grossly unreasonable – refer to Arries v CCMA and Others (2006) 27 ILJ 2324 (LC); Minister of Home Affairs v GPSBC (JR 1128/07) ZALC 35 (26 March 2008) par 12. In order to prove that the decision was grossly unreasonable, it needs to be demonstrated that the employer has acted irrationally, capriciously or arbitrarily, was actuated by bias, malice or fraud, failed to apply its mind or had exercised his discretion for insubstantial reasons, or based it on any wrong principle – refer to Arries v CCMA and Others (2006) 27 ILJ 2324 (LC); Minister of Home Affairs v GPSBC (JR 1128/07) ZALC 35 (26 March 2008) par 12; Ndlovu v CCMA & others (2000) 21 ILJ 1653 (LC); Benjamin v University of Cape Town  12 BLLR 1209 (LC) at 1223-1224.
I am mindful of the fact that the employer must follow a fair procedure that includes following a collectively agreed procedure or alternatively a legislated or regulated procedure. The employer must follow a fair procedure that includes advertising, sifting, short listing, the interview process, the SGB’s recommendation and the appointment by the HOD.
Conduct can be substantively and/or procedurally unfair. Substantive unfairness relates to the reason for not promoting an employee whereas procedural fairness relates to the process applied by the employer during the course of the selection process. As a legal concept substantive unfairness cannot exist in abstraction. Therefore in order to prove substantive unfairness that would entitle the Applicant to substantive relief such as appointment to the post, the Applicant also needs to establish a causal connection between the irregularity or unfairness and the failure to promote. To do that he needs to show that, but for the irregularity or unfairness, he would have been appointed to the post – see National Commissioner of the SA Police Service v Safety & Security Bargaining Council & others (2005) 26 ILJ 903 (LC); Woolworths (Pty) Ltd v Whitehead (2000) 21 ILJ 571 (LAC) para 24 per Zondo AJP; University of Cape Town v Auf der Heyde (2001) 22 ILJ 2647 (LAC) para 35; Minister of Safety and Security & others v Jansen NO (2004) 25 ILJ 708 (LC) para 27. This in any event needs to be proved in order to prove substantive unfairness and before any form of substantive relief such as appointment or protective promotion can be awarded – see KwaDukuza Municipality v SALGBC  11 BLLR 1057 (LC). This necessarily means that he must show that not only was he better qualified and suited for the post than the successful candidate who was appointed, but also that he was the best of all the candidates who applied for the position.
It is in this regards important to note that the interview panel ranked the 2nd Respondent first. The Applicant conceded that he was not the best candidate that applied for the post, and the result thereof is that he cannot prove that, but for any irregularity, he would have been appointed to the post.
The Applicant however claims that the process of appointment of the 2nd Respondent was procedurally unfair. If it is indeed found that there was procedural unfairness but the employee cannot or fails to prove that he was the best of all the candidates who applied for the post, the applicable relief would be to award compensation – refer to KwaDukuza Municipality v SALGBC  11 BLLR 1057 (LC).
I am mindful of the principle that trifling procedural irregularities should not form the basis of a finding in favour of the Applicant. Even in unfair dismissal disputes the LABOUR Court has held that substantial compliance with procedural fairness is all that is required – refer in this regard to Avril Elizabeth Home for the Mentally Handicapped v CCMA (2006) 27 ILJ 1644 (LC). Although PAM sets out the procedures to be followed in selecting suitable candidates for teaching positions the High Court has held, with reference to paragraph 3 of Chapter B of PAM, that strict compliance with PAM is not necessary, that form must not be elevated above substance and that: “One does not go digging to find points to stymie the process of appointing suitable candidates to teaching positions…” see Observatory Girls Primary School & another v Head of Dept: Dept of Education, Province of Gauteng, Case No 02 / 15349,  JOL 17802 (W), as well as Douglas Hoërskool & 'n ander v Premier, Noord-Kaap & andere 1999 (4) SA 1131 (NC) at 1144I–1145I. Arbitrators should therefore be careful not to make findings too easily that an unfair labour practice was committed when there was some sort of procedural irregularity. Provided that there was substantial (as opposed to strict) compliance with PAM, it cannot be said that an unfair labour practice has necessarily been committed merely because PAM has not been followed to the letter. Members of governing bodies are not trained lawyers, but lay people, and in some instances even illiterate. It is therefore unrealistic to expect them to be able to follow PAM to the letter like a trained lawyer would have done.
The Applicant claims procedural unfairness on the basis of the principal influencing the selection of the interview panel, stating that the position has been reserved for a female and the lack of a workshop for the SGB members for the deputy principal post.
I find no proof that the appointment of the 2nd Respondent by the 1st Respondent was procedurally unfair. The Applicant provided no substance to his claims. His claims are merely based on “feelings” of injustice, a “feeling” that the process was flawed, a “feeling” of being treated unfairly, a “feeling” that the panel was prejudiced. He cannot testify to the interview panel’s capability, but “feels” there was an irregularity before they were appointed. His evidence is to a large extent based on hearsay, perceptions and speculation. Surely the union observers from SADTU, of which the Applicant is a member, would have voiced their concerns if unfairness was evident, more so keeping in mind that the 2nd Respondent was from another union, i.e. PEU. The principal did not chair the interview panel, and it is improbable that he would have been able to influence the members. Mere unhappiness or a perception of unfairness does not establish unfair conduct. I also find no substance in the allegation that he declared the post to be reserved for a female. I am satisfied that a workshop during the tenure of the SGB is sufficient to comply with the requirement of training the SGB members. The principles remain the same, irrespective of the specific post involved. It is not in dispute that the SGB members did attend a workshop where the provisions of Collective Agreement 1/2008 were dealt with.
It is indeed also so that the 1st Respondent retains the managerial prerogative to appoint or not. In the matter of Herbert and the Department of Home Affairs CCMA (1998) it was held that Goliath v Medscheme (Pty) Ltd (1996) 5 BLLR 603 (IC) provides the correct answer when dealing with decisions to promote where discrimination on prohibited grounds is not alleged, as in this case. It was stated there 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”. Le Roux, in his article entitled “Developments in individual labour law” in Current Labour Law 1996 page 46, reinforces this view.
Measured against the principles of fairness as discussed above I find no reason to interfere with the decision of the 1st Respondent not to appoint the Applicant.
The onus is on the Applicant to prove an unfair labour practice relating to promotion, and I am of the opinion that the Applicant did not discharge that onus.
My award, accordingly, is as follows:
1. I find that the Applicant is not entitled to relief. The Applicant’s claim is dismissed.
2. No order is made in respect of costs.
07 August 2013