PSES45-13/14MP
PSES45-13/14MP
Award Date:
24 May 2014
Case Number: PSES45-13/14MP
Province: Mpumalanga
Applicant: Ntombizodwa Priscilla Martha Masombuka
Respondent: Department of Education, Mpumalanga
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Ermelo
Award Date: 24 May 2014
Arbitrator: E Maree
EDUCATION LABOUR
RELATIONS COUNCIL
Panellist :E. Maree
Case Number : PSES45-13/14MP
Date of Award: 24 May 2014
In the ARBITRATION between
Ntombizodwa Priscilla Martha Masombuka
Applicant
and
Department of Education- Mpumalanga
1ST Respondent
Sibongile Jorine Masilela
2ND Respondent
Applicant’s representative Mr. M. Mabule
Applicant’s address Fax 086 6100 395
1st Respondent’s representative Mr. S. Khoza
1stRespondent’s address Fax 086 658 8219
2nd Respondent’s representative Mr. T. Shiyinduku
2nd Respondent’s address Fax [013] 744 0128
DETAILS OF HEARING AND REPRESENTATION
1.The matter was set down for arbitration on the 15th of April 2014 at Mpumalanga Department of Education, situated at 1 de Jager Street, Ermelo.
2. The applicant was represented by Mr. M. Mabule an attorney, while the 1st respondent was represented by Mr. S. Khoza an official from Labour Relations and the 2nd respondent by Mr. T. Shiyinduku an official from SADTU.
4. Bundle ‘A’ was submitted on behalf of the applicant and bundle ‘B’ was submitted on behalf of the respondents.
5. After opening statements were submitted it was agreed between the parties that the matter could be determined by way of written arguments and to this end it was agreed that:
5.1. the applicant to submit arguments on the 1st & 2nd respondents’ on or before the 25th of April 2014;
5.2. The respondents’ to submit on the applicant on or before the 7th of May 2014;
5.3. The applicant to respond to the respondents’ on or before the 14th of May 2014;
5.4. All the arguments to simultaneously be submitted at the ELRC and to me on the agreed dates at the fax numbers provided for this purpose.
ISSUES TO BE DECIDED
6. Whether the applicant was the best candidate in terms of qualifications and experience and therefore should have been shortlisted;
6.1. Whether the applicant if short listed would have been promoted to the position of principal;
6.2. Whether the 1st respondent ignored the key criteria as stated in the EEA and the SGB ‘’deliberately flouted’’ their own criteria and predetermined their decision before short listing.
SURVEY OF ARGUMENTS
It is not my intention for purposes of this award to verbatim and/or fully reflect all written arguments/submissions submitted on behalf of the parties. All arguments were considered and are on record on the case file. I will only reflect the salient points of each parties arguments/submissions in so far as it has a bearing on the issue in dispute.
THE APPLICANTS ARGUMENTS
7. It was submitted on behalf of the applicant that the application form of the 2nd respondent was incomplete in that she had omitted to write her surname [bundle ‘’B’’ page 2] and thus had to be eliminate during sifting.
8. With regard to her experience, the 2nd respondent wrote the name of 2 school and not that of the department and wrote the name of the department where she had to write that of the school where she taught.
9. Based on these discrepancies the 2nd respondent should not have been short listed and the fact that she was is proof that the SGB was biased in her favour.
10. A further discrepancy is to be found in the marks allocated for managerial experience in that the 2nd respondent was given a mark of 5 and not 4 as her experience only amounted to 7 years. The agreed criteria were 4 points for managerial experience between 7 and 9 years. Regarding the score for extra curriculum was also irregular as the applicant [who had 8 such activities’] received ‘’0’’ and the 2nd respondent who had no activities, received ‘’1’’.
11. The SGB was illegally constituted as there were three secretaries and no interview committee. Mr. Khumalo was not a member of the SGB and there are no minutes indicating that he was co-opted, yet he actively participated. Mr. Mahlangu as circuit manager should have been part of the panel as the position to be filled was that of principal.
12. On the 17th of March 2013 an ‘’illegal meeting’’ was held by the SGB with the 2nd respondent and the acting principal. Mrs. Xaba an administrator at the school came upon this meeting and found that they were discussing interview questions.
13. On this same date the 2nd respondent attend a workshop for SGB members given by district officials. The training revolved around the conducting of interviews and how questions should be formulated. The 2nd respondent had no right to attend as she was not a principal or a member of the SGB. This was grossly irregular as she was an applicant to the post and gave her an unfair advantage.
14. The applicant was the better candidate in terms of qualifications and experience and should have been short listed and ultimately appointed. The applicant was however, eliminated during the short listing process as she was ‘’a threat’’ to the applicant and could better express herself having been selected by the district office to present training and workshops for district educators.
15. In response to the respondents’ submissions it was contented that numerous contentions made on behalf of the applicant was not disputed and that documents referred to are disputed.
THE RESPONDENT’S ARGUMENTS
16. It was submitted on behalf of the respondents’ that the selection committee had agreed on criteria regarding qualifications and teaching experience. Based on this the applicant and the 2nd respondent were awarded 5 points as they both had qualifications equivalent to REQV16. Both had more than 16 years’ experience and were thus awarded the maximum score of 5 points.
17. Management experience was the 3rd criteria and the applicant was given a maximum mark of 5 despite erroneously indicating that she had been and educator and HOD since 1992 when she had only been a HOD since 2008.
18. The applicant and 2nd respondent received 0 marks regarding management experience as deputy principals. With regard to their leadership roles in the community both were awarded the maximum of three points.
19. The 2nd respondent had in her curriculum vitae a portion that dealt with her extra mural activities where she occupied leadership positions and was awarded a point therefore. The applicant indicated no such activities and thus received no mark. The total scored by the applicant was a mark of 18 and the 2nd respondent a mark of 19.
20. The SGB was correctly composed as is clear from page 27 bundle ‘B’’ and does not reflect the name of ‘’Khumalo’’. The meeting was facilitated by the circuit manager [page 19] and S Khumalo, was the assistant of the circuit manager.
21. Original documents were submitted and are correct.
ANALYSIS OF ARGUMENTS
22. Section 186[2] [a] of the Labour Relations Act 66 of 1995 defines an unfair labour practice as follows:
[2] Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving –
[a] Unfair conduct by the employer relating to the promotion, demotion, probation [excluding disputes about dismissal for a reason relating to probation] or training an employee or relating to the provision of benefits to an employee’’
23. The definition of an unfair labour practice is very clearly set out in section 186 of the LRA and the limits thereof had been identified by case law.
24. Arguments presented on behalf of the applicant were that the respondent committed an unfair labour practice by not short listing her. The arguments revolved around the fact that she had better qualifications, experience and that if short listed would have been appointed as principal. It was also argued on her behalf that the SGB ignored their own criteria, predetermined their decision and was illegally constituted.
25. The onus in an unfair labour practice is on an applicant to proof that the failure of the respondent to promote her was unfair as a failure to promote per se does not necessarily fall within the definition of an unfair labour practice.
26. It was argued on behalf of the applicant that she was a more suitable candidate than the 2nd respondent as she had more experience, better qualifications, that there were defects regarding the 2nd respondent’s application as well as defects relating to the SGB.
27. In its argument the respondent contented that scores were allocated according to agreed criteria relating to qualifications, experience and management experience. As both the applicant and the 2nd respondent had REQV 16 they received the maximum score of 5 points. They also received the maximum score of 5 points as they both had more than 16 years’ experience. Both received 5 points for management experience and zero for experience as deputy principal. They were also both awarded a mark of 3 for leadership positions in community service.
28. At this stage of the short listing the applicant and 2nd respondent were on equal footing but the 2nd respondent then received a mark of 1 for extra mural activities listed on her curriculum vitae. The 2nd respondent had no such activities on her curriculum vitae and received a mark of zero, thereby giving the 2nd respondent 19 marks and the applicant 18 marks.
29. The applicant’s curriculum vitae [Pages 12 -19 Bundle ‘A’’] reflects no extra mural activities whereas that of the 2nd respondent [Bundle ‘’B’’ pages 16-18] do. The shortlisting minutes [bundle ‘B’’ pages 19-21] reflects on page 20 reflects the criteria to be considered and inter alia refers to extra-curricular activities.
30. The same page shows the 5 short listed candidates and their respective scores that range between 21 and 19. The first three candidates scored 21, 20 and 20 and candidates’ number 4 and 5 each scored 19. The applicant with a much lower score of 18 was thus not short listed.
31. I cannot find on the evidence presented that the applicant had been prejudiced during this process as she had received exactly the same marks as the 2nd respondent on all the agreed criteria but only failed to score regarding an agreed criteria that she not included on her curriculum vitae. She was clearly also scored lower than the 5 candidates that were short listed. In this regard it was argued in rebuttal on behalf of the applicant that although she had not listed extra mural activities on her curriculum vitae she had done so on her application [Form EDU 1 page 4 bundle ‘B’’]. It seems clear from reading of this that a candidate should state qualifications and/or proficiency relating to subjects and extra-curricular activities taught/presented at school. This is different from the extra-curricular activities that were listed by the 2nd respondent as this relates to non-school activities.
32. The applicant contented that the application of the 2nd respondent should have been excluded as she had not completed her application properly by failing to write her surname and by indicating the name of a school and not that of a department regarding her teaching experience.
33. It is indeed so that the 2nd respondent failed to write her surname. This alone however, is no ground to regard it as incomplete. The application is accompanied by a covering letter, curriculum vitae and copies of qualifications and a SACE registration number clearing identifying the applicant for the post.
34. Regarding the contention that the 2nd respondent identified 2 schools and not the department when indicating her teaching experience, a proper reading of this part of the application shows that although the 2nd respondent had given the name of two schools, she had qualified this by writing the name of the relevant department underneath. She had also repeated this and had written opposite the departments the name of the school. Based on this I cannot find that there was a discrepancy that should have resulted in an elimination from the short listing process.
35. It was also claimed that the SGB committee was ‘’illegally constituted’’ due to the inclusion of Mr. Khumalo as there is no proof that he [who was not part of the SGB] had been co-opted]. In this regard it was submitted on behalf of the 1st respondent that Mr. Khumalo who was the circuit secretary was the assistant of the circuit manager and thus attended on behalf of the 1st respondent and that the meeting was facilitated by the circuit manager.
36. In response to this the applicant argued that Mr. Khumalo was the principal of a neighbouring school and not an official of the 1st respondent. The applicant has the onus to proof irregularities and as such if such a claim is made, proof must be submitted. The minutes of the short listing submitted and signed by all involved [including the union representatives] clearly identified Mr. Khumalo as circuit secretary.
37. I cannot find on the arguments presented that the SGB was ’’illegally constituted.
38. The applicant failed to proof on a preponderance of probabilities that the failure to short list her amounted to an unfair labour practise.
FINDING
39. The applicant failed to prove that the failure of the 1st respondent in not-short listing her amounted to an unfair labour practice.
AWARD
40. The existence of an unfair labour practice was not proven and the dispute is subsequently dismissed.
DATED AT PRETORIA ON THIS 24th DAY OF MAY 2014
PANELIST
E. MAREE
Province: Mpumalanga
Applicant: Ntombizodwa Priscilla Martha Masombuka
Respondent: Department of Education, Mpumalanga
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Ermelo
Award Date: 24 May 2014
Arbitrator: E Maree
EDUCATION LABOUR
RELATIONS COUNCIL
Panellist :E. Maree
Case Number : PSES45-13/14MP
Date of Award: 24 May 2014
In the ARBITRATION between
Ntombizodwa Priscilla Martha Masombuka
Applicant
and
Department of Education- Mpumalanga
1ST Respondent
Sibongile Jorine Masilela
2ND Respondent
Applicant’s representative Mr. M. Mabule
Applicant’s address Fax 086 6100 395
1st Respondent’s representative Mr. S. Khoza
1stRespondent’s address Fax 086 658 8219
2nd Respondent’s representative Mr. T. Shiyinduku
2nd Respondent’s address Fax [013] 744 0128
DETAILS OF HEARING AND REPRESENTATION
1.The matter was set down for arbitration on the 15th of April 2014 at Mpumalanga Department of Education, situated at 1 de Jager Street, Ermelo.
2. The applicant was represented by Mr. M. Mabule an attorney, while the 1st respondent was represented by Mr. S. Khoza an official from Labour Relations and the 2nd respondent by Mr. T. Shiyinduku an official from SADTU.
4. Bundle ‘A’ was submitted on behalf of the applicant and bundle ‘B’ was submitted on behalf of the respondents.
5. After opening statements were submitted it was agreed between the parties that the matter could be determined by way of written arguments and to this end it was agreed that:
5.1. the applicant to submit arguments on the 1st & 2nd respondents’ on or before the 25th of April 2014;
5.2. The respondents’ to submit on the applicant on or before the 7th of May 2014;
5.3. The applicant to respond to the respondents’ on or before the 14th of May 2014;
5.4. All the arguments to simultaneously be submitted at the ELRC and to me on the agreed dates at the fax numbers provided for this purpose.
ISSUES TO BE DECIDED
6. Whether the applicant was the best candidate in terms of qualifications and experience and therefore should have been shortlisted;
6.1. Whether the applicant if short listed would have been promoted to the position of principal;
6.2. Whether the 1st respondent ignored the key criteria as stated in the EEA and the SGB ‘’deliberately flouted’’ their own criteria and predetermined their decision before short listing.
SURVEY OF ARGUMENTS
It is not my intention for purposes of this award to verbatim and/or fully reflect all written arguments/submissions submitted on behalf of the parties. All arguments were considered and are on record on the case file. I will only reflect the salient points of each parties arguments/submissions in so far as it has a bearing on the issue in dispute.
THE APPLICANTS ARGUMENTS
7. It was submitted on behalf of the applicant that the application form of the 2nd respondent was incomplete in that she had omitted to write her surname [bundle ‘’B’’ page 2] and thus had to be eliminate during sifting.
8. With regard to her experience, the 2nd respondent wrote the name of 2 school and not that of the department and wrote the name of the department where she had to write that of the school where she taught.
9. Based on these discrepancies the 2nd respondent should not have been short listed and the fact that she was is proof that the SGB was biased in her favour.
10. A further discrepancy is to be found in the marks allocated for managerial experience in that the 2nd respondent was given a mark of 5 and not 4 as her experience only amounted to 7 years. The agreed criteria were 4 points for managerial experience between 7 and 9 years. Regarding the score for extra curriculum was also irregular as the applicant [who had 8 such activities’] received ‘’0’’ and the 2nd respondent who had no activities, received ‘’1’’.
11. The SGB was illegally constituted as there were three secretaries and no interview committee. Mr. Khumalo was not a member of the SGB and there are no minutes indicating that he was co-opted, yet he actively participated. Mr. Mahlangu as circuit manager should have been part of the panel as the position to be filled was that of principal.
12. On the 17th of March 2013 an ‘’illegal meeting’’ was held by the SGB with the 2nd respondent and the acting principal. Mrs. Xaba an administrator at the school came upon this meeting and found that they were discussing interview questions.
13. On this same date the 2nd respondent attend a workshop for SGB members given by district officials. The training revolved around the conducting of interviews and how questions should be formulated. The 2nd respondent had no right to attend as she was not a principal or a member of the SGB. This was grossly irregular as she was an applicant to the post and gave her an unfair advantage.
14. The applicant was the better candidate in terms of qualifications and experience and should have been short listed and ultimately appointed. The applicant was however, eliminated during the short listing process as she was ‘’a threat’’ to the applicant and could better express herself having been selected by the district office to present training and workshops for district educators.
15. In response to the respondents’ submissions it was contented that numerous contentions made on behalf of the applicant was not disputed and that documents referred to are disputed.
THE RESPONDENT’S ARGUMENTS
16. It was submitted on behalf of the respondents’ that the selection committee had agreed on criteria regarding qualifications and teaching experience. Based on this the applicant and the 2nd respondent were awarded 5 points as they both had qualifications equivalent to REQV16. Both had more than 16 years’ experience and were thus awarded the maximum score of 5 points.
17. Management experience was the 3rd criteria and the applicant was given a maximum mark of 5 despite erroneously indicating that she had been and educator and HOD since 1992 when she had only been a HOD since 2008.
18. The applicant and 2nd respondent received 0 marks regarding management experience as deputy principals. With regard to their leadership roles in the community both were awarded the maximum of three points.
19. The 2nd respondent had in her curriculum vitae a portion that dealt with her extra mural activities where she occupied leadership positions and was awarded a point therefore. The applicant indicated no such activities and thus received no mark. The total scored by the applicant was a mark of 18 and the 2nd respondent a mark of 19.
20. The SGB was correctly composed as is clear from page 27 bundle ‘B’’ and does not reflect the name of ‘’Khumalo’’. The meeting was facilitated by the circuit manager [page 19] and S Khumalo, was the assistant of the circuit manager.
21. Original documents were submitted and are correct.
ANALYSIS OF ARGUMENTS
22. Section 186[2] [a] of the Labour Relations Act 66 of 1995 defines an unfair labour practice as follows:
[2] Unfair labour practice means any unfair act or omission that arises between an employer and an employee involving –
[a] Unfair conduct by the employer relating to the promotion, demotion, probation [excluding disputes about dismissal for a reason relating to probation] or training an employee or relating to the provision of benefits to an employee’’
23. The definition of an unfair labour practice is very clearly set out in section 186 of the LRA and the limits thereof had been identified by case law.
24. Arguments presented on behalf of the applicant were that the respondent committed an unfair labour practice by not short listing her. The arguments revolved around the fact that she had better qualifications, experience and that if short listed would have been appointed as principal. It was also argued on her behalf that the SGB ignored their own criteria, predetermined their decision and was illegally constituted.
25. The onus in an unfair labour practice is on an applicant to proof that the failure of the respondent to promote her was unfair as a failure to promote per se does not necessarily fall within the definition of an unfair labour practice.
26. It was argued on behalf of the applicant that she was a more suitable candidate than the 2nd respondent as she had more experience, better qualifications, that there were defects regarding the 2nd respondent’s application as well as defects relating to the SGB.
27. In its argument the respondent contented that scores were allocated according to agreed criteria relating to qualifications, experience and management experience. As both the applicant and the 2nd respondent had REQV 16 they received the maximum score of 5 points. They also received the maximum score of 5 points as they both had more than 16 years’ experience. Both received 5 points for management experience and zero for experience as deputy principal. They were also both awarded a mark of 3 for leadership positions in community service.
28. At this stage of the short listing the applicant and 2nd respondent were on equal footing but the 2nd respondent then received a mark of 1 for extra mural activities listed on her curriculum vitae. The 2nd respondent had no such activities on her curriculum vitae and received a mark of zero, thereby giving the 2nd respondent 19 marks and the applicant 18 marks.
29. The applicant’s curriculum vitae [Pages 12 -19 Bundle ‘A’’] reflects no extra mural activities whereas that of the 2nd respondent [Bundle ‘’B’’ pages 16-18] do. The shortlisting minutes [bundle ‘B’’ pages 19-21] reflects on page 20 reflects the criteria to be considered and inter alia refers to extra-curricular activities.
30. The same page shows the 5 short listed candidates and their respective scores that range between 21 and 19. The first three candidates scored 21, 20 and 20 and candidates’ number 4 and 5 each scored 19. The applicant with a much lower score of 18 was thus not short listed.
31. I cannot find on the evidence presented that the applicant had been prejudiced during this process as she had received exactly the same marks as the 2nd respondent on all the agreed criteria but only failed to score regarding an agreed criteria that she not included on her curriculum vitae. She was clearly also scored lower than the 5 candidates that were short listed. In this regard it was argued in rebuttal on behalf of the applicant that although she had not listed extra mural activities on her curriculum vitae she had done so on her application [Form EDU 1 page 4 bundle ‘B’’]. It seems clear from reading of this that a candidate should state qualifications and/or proficiency relating to subjects and extra-curricular activities taught/presented at school. This is different from the extra-curricular activities that were listed by the 2nd respondent as this relates to non-school activities.
32. The applicant contented that the application of the 2nd respondent should have been excluded as she had not completed her application properly by failing to write her surname and by indicating the name of a school and not that of a department regarding her teaching experience.
33. It is indeed so that the 2nd respondent failed to write her surname. This alone however, is no ground to regard it as incomplete. The application is accompanied by a covering letter, curriculum vitae and copies of qualifications and a SACE registration number clearing identifying the applicant for the post.
34. Regarding the contention that the 2nd respondent identified 2 schools and not the department when indicating her teaching experience, a proper reading of this part of the application shows that although the 2nd respondent had given the name of two schools, she had qualified this by writing the name of the relevant department underneath. She had also repeated this and had written opposite the departments the name of the school. Based on this I cannot find that there was a discrepancy that should have resulted in an elimination from the short listing process.
35. It was also claimed that the SGB committee was ‘’illegally constituted’’ due to the inclusion of Mr. Khumalo as there is no proof that he [who was not part of the SGB] had been co-opted]. In this regard it was submitted on behalf of the 1st respondent that Mr. Khumalo who was the circuit secretary was the assistant of the circuit manager and thus attended on behalf of the 1st respondent and that the meeting was facilitated by the circuit manager.
36. In response to this the applicant argued that Mr. Khumalo was the principal of a neighbouring school and not an official of the 1st respondent. The applicant has the onus to proof irregularities and as such if such a claim is made, proof must be submitted. The minutes of the short listing submitted and signed by all involved [including the union representatives] clearly identified Mr. Khumalo as circuit secretary.
37. I cannot find on the arguments presented that the SGB was ’’illegally constituted.
38. The applicant failed to proof on a preponderance of probabilities that the failure to short list her amounted to an unfair labour practise.
FINDING
39. The applicant failed to prove that the failure of the 1st respondent in not-short listing her amounted to an unfair labour practice.
AWARD
40. The existence of an unfair labour practice was not proven and the dispute is subsequently dismissed.
DATED AT PRETORIA ON THIS 24th DAY OF MAY 2014
PANELIST
E. MAREE