PSES72-14/15FS
PSES72-14/15FS
Award Date:
30 March 2015
Case Number: PSES72-14/15FS
Province: Free State
Applicant: SAOU obo VP VAN NIEKERK
Respondent: Department of Education Free State
Issue: Unfair Labour Practice - Discrimination
Award Date: 30 March 2015
Arbitrator: Jerome Mthembu
Case No PSES72-14/15FS
In the matter between
SAOU obo VP VAN NIEKERK Applicant
and
DEPARTMENT OF EDUCATION: FS First Respondent
and
Ms Skosana Second Respondent
ARBITRATOR: JEROME MTHEMBU
HEARD: 20 October 2014 and 26 February 2015
DATE OF AWARD: 30 March 2015
SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) - alleged unfair conduct relating to promotion
DETAILS OF HEARING AND REPRESENTATION:
1. The hearing was held on 20 October 2014 and 26 February 2015. Mrs Strydom of SAOU represented the Applicant and Mr Tladi the First Respondent.
2. The parties agreed that the matter be determined on the basis of their respective written arguments, namely:
2.1 The Applicant’s written arguments filed on 31 October 2014;
2.2 The First Respondent’s written arguments to be filed by 23 March 2015
2.3 The Second Respondent did not oppose the matter and did not file any arguments.
THE ISSUE TO BE DECIDED:
3. Whether the First Respondent committed an unfair labour practice relating to promotion in failing to promote the Applicant to the post of Deputy Principal at Luckhoff Combined School advertised in Departmental Vacancy List 2 of 2013.
BACKGROUND TO THE ISSUE:
4. During March 2013 a vacant post of Deputy Principal at Luckhoff Combined School was advertised in the Departmental Vacancy List 2 of 2013. The school is situated in the town of Luckhoff in the Xhariep District. The reference number for the post as advertised in the Vacancy List was 840022/301.
See: Bundle C, p. 12 – 20
5. According to the Vacancy List, the date for commencement of duty in the advertised posts was 1 July 2013.
6. The Applicant, Ms V P Van Niekerk, was one of the candidates who applied for this post. She was shortlisted for an interview, was interviewed and recommended by the SGB as their preferred candidate for the appointment to the advertised post of Deputy Principal. These processes were completed around July 2013.
7. During March 2014, the Applicant became aware of rumours that the short-listing and interviewing processes for the post were to be repeated. She reported this to the SAOU. The SAOU lodged a grievance on her behalf on 17 March 2014.
See: Bundle C, p. 21 – 22
8. According to the attached affidavit of the chairperson of the SGB (See: Bundle A) of Luckhoff Combined School, Mr Coetzee, the SGB made enquiries about the fact that after a long period of time, the appointment of the recommended candidate had not been confirmed by the Department of Education. Soon thereafter, officials of the department visited the school and informed them that a decision had been taken to repeat the process. Although the SGB objected to this decision, they were made to believe that they were ignorant of the correct processes and requirements. According to the SGB Chairperson, the Applicant was excluded from the second round of short-listing and interviews on the instruction of the departmental officials. She was therefore not considered for appointment during the second round of short-listing and interviews.
9. In a letter addressed to the office of the SAOU dated 28 March 2014, the Director of the Xhariep District office responded as follows to the grievance:
“The selection process is repeated because some of the short-listed candidates:
1. Did not meet the criteria of being “the HOD or acted on the HOD post or higher” as per application submitted;
2. Did not meet the criteria of Afrikaans first language and
3. One had a negative reference or reference check did not make a recommendation for promotion.
The abovementioned discrepancies lead to the repeat of the entire process.”
See: Bundle C, p. 23
10. On 16 April 2013 the SAOU sent an e-mail to the HOD of the Free State Education Department, as well as the District Director, Mr Mokoena informing them that the reasons given were not accepted and that a formal dispute would be registered with the ELRC. A request was made to the Department that the filling of the post be put on hold until the dispute had been resolved.
See: Bundle C, p. 24
11. On 6 May 2014 another e-mail was sent to the Director: Labour Relations requesting that the filling of the post at Luckhoff Combined School be placed on hold until the dispute had been resolved.
See: Bundle A, p. 25
No response was received on this e-mail.
SURVEY OF THE ARGUMENT:
The Applicant’s Submissions
12. The Applicant’s case is to the effect that her non-appointment in the post of Deputy Principal at Luckhoff Combined School constituted an unfair labour practice relating to promotion (Section 186(2)(a) of the LRA). That she qualified for appointment as Deputy Principal, as recommended by the SGB of Luckhoff Combined School, but it was declined by the Department in an unlawful manner.
13. The reasons provided by the District Office for repeating the process are not valid, and the processes which followed were unlawful and unfair in terms of the provisions of the EEA, Section 6(3) and the PAM, Chapter B, par. 3. It is a fact that the Applicant complied with the criteria set by the short-listing and interview panel of the SGB, as was also agreed to by the departmental representative who represented the Department during these processes.
14. The Applicant’s case is also that the Free State Education Department violated her right to lawful, reasonable and procedurally fair administrative action as contained in Section 33 of the Constitution of the Republic of South Africa, 108 of 1996.
15. Further in view of the fact that the advertised post had been filled, she should be appointed in the current vacant post of Deputy Principal at Luckhoff Combined School, retrospective from at least 1 September 2013. The process resulting in her being nominated for appointment was completed on 24 July 2013. A post of Deputy Principal at Luckhoff Combined School, had in the meantime become vacant due to the retirement of the incumbent and had not been advertised yet. It was available for her appointment. This had been confirmed by the SGB Chairperson.
See: Bundle A
16. Vacant educator posts are advertised in terms of the Employment of Educators’ Act (EEA) and Personnel Administration Measures (PAM).
17. Sections 6(3) and 7(1) of the EEA contain the fundamental prescriptions, both to the Governing Body and to the HOD as to how the selection and appointment procedures are to be conducted. Chapter B, par. 3.3 of the PAM prescribes the processes for the advertising and filling of educator posts. The HOD, District Directors and other senior officials at the Department should be well acquainted with the statutory provisions contained in Section 6 of the EEA, as well as the PAM.
18. The SGB, under the supervision of the departmental representative (School Management and Government Development (Circuit Manager)), fully complied with the prescribed criteria and procedures. No evidence exists that they violated any of the relevant prescriptions.
19. In addition to the above, the Free State Education Department also relies on a resolution concluded in the Free State ELRC, namely FS ELRC Resolution 1/2012 (hereinafter referred to as the Resolution) – “Guidelines for advertising and filling of educator posts at institutions.” This resolution contains further agreed upon guidelines to streamline the processes and prescripts of the PAM. All officials should be well acquainted with the contents of this Resolution.
See: Bundle C, p. 26 – 41
20. The SGB, under the supervision of the departmental representative (SMGD (Circuit Manager)) fully complied with the guidelines contained in this resolution. No evidence exists that they violated any of the relevant prescriptions.
21. The requirements for appointment are contained in PAM, Chapter B, par. 2 under the heading “Appointment in Education”. Refer to par. 2.2 which regulates the minimum requirements for appointment as an educator (par. 2.2(a)). The minimum requirements for appointment to a post of Deputy Principal (Post Level 3) (par. 2.2(b)(ii)) are as follows:
• PAM, Chapter B, par. 2.2(a)(i): In order to qualify for appointment as an educator a person must have at least a recognised three year qualification (REQV 13) which must include appropriate training as an educator.
• PAM, Chapter B, par. 2.2(b)(ii): The minimum requirements in respect of experience for appointment to promotion posts are as follows:
Post Level 3 (Deputy Principal) = 5 years
The Applicant met these requirements and was accordingly eligible for appointment to a post of Deputy Principal.
22. It is incomprehensible:
as to which prescripts and/or legislation the District Office based the identified “discrepancies” which “lead to the repeat of the entire process” as stated in the letter to the SAOU dated 28 March 2014. See: Par. 9 above
• as to which legislation the District Office based its decision to “repeat the entire process”.
23. The actions of the Free State Education Department is a total violation of Section 6.3 of the Educators’ Employment Act and the PAM, Chapter B, par. 3. It amounts to serious abuse of power. This will be dealt with in arguments.
24. All applications for advertised posts must be submitted to the relevant District Offices (par. 2.5 of the FS ELRC Resolution 1/2012). The role of the District Offices is to comply with the provisions of the PAM, Chapter B, par. 3.2, read with par. 3 of the Resolution, namely:
“The relevant district office shall handle the initial sifting process to eliminate all those candidates who do not comply with the requirements for the post(s) as stated in the advertisement” (own emphasis)
After the sifting process was done, only the applications of candidates who qualified for appointment to the advertised post of Deputy Principal at Luckhoff Combined School were submitted to the SGB of the school. The Applicant’s application was indeed submitted to the SGB for consideration during the formal short-listing and interview processes for appointment.
25. The initial processes of short-listing and interviews took place during April / May 2013. A short-listing and interviewing panel was duly appointed by the SGB of Luckhoff Combined School in accordance with the stipulations of PAM, Chapter B, par. 3.3, read with par. 4 of FS ELRC Resolution 1/2012 (Guidelines for advertising and filling of educator posts at institutions).
See: Bundle C, p. 32
26. Mrs V Buka-Koto (an SMGD / Circuit Manager) represented the Free State Education Department as an observer and resource person for both the short-listing and interview processes which took place during the initial process (April to July 2013). In terms of par. 4.4.2 of the Resolution the role of the departmental representative is restricted to the status of observer and advisor. Par. 4.4.2 (3rd bullet) of the Resolution indicates that “… The Resource person shall advise the panel pertaining to the relevant departmental policies, rules and regulations as well as appropriate legislation.” (own emphasis). As senior official of the Department it can be assumed that Ms Buka-Koto is aware of this responsibility and that she would have acted accordingly if and when necessary.
27. The short-listing process was done in accordance with par. 4.6 of the Resolution which reads as follows:
See: Bundle C, p. 34
“The committees must ensure that:
4.6.1 The short-listing criteria are fair, non-discriminatory and in line with the Departmental Employment Equity Plan, other prescripts and the Constitution of the RSA;
4.6.2 the nature of the post, as well as its inherent needs and the job profile, i.e. qualities of suitable candidates e.g. leadership, communication and other relevant skills, are taken into account;
4.6.3 the obligation of the employer towards serving educators is met;
4.6.4 the list of short-listed candidates for interview purposes should not exceed five and should not be less than three candidates per post.
4.6.5 a probity check (own emphasis) of each short-listed candidate’s credentials (authenticity of the CV, qualifications and all other documents) must be done by the Resource Person before the interviews;
4.6.6 the Resource person will in a prescribed format provide the report of the above to the interviewing panel as indicated on 4.6.5 above;
4.6.7 the minimum educational requirements of the post and required experience are complied with;
4.6.8 if more than five candidates complied with the requirements and criteria set by the committee and are scored, three candidates must be placed on a reserve list in case of possible withdrawals;
4.6.9 the panel only uses the score sheet approved by the Superintendent General for only those candidates who qualified according to the set requirements and criteria of the committee (own emphasis).”
28. Regarding the short-listing process, the following facts cannot be disputed.
See: Bundle A
• The SGB decided to score all applicants and to interview the five candidates with the highest scores. As already stated above, only the applications of those applicants who qualified for appointment in the advertised post, were submitted to the SGB. In view of the fact that all the applicants therefore were eligible for appointment, this criteria complied with the stipulations of the agreed upon guidelines as stipulated in par. 4.6.1 of the Resolution, which stipulates that:
“The committees must ensure that … The short-listing criteria are fair, non-discriminatory and in line with the Departmental Employment Equity Plan, other prescripts and the Constitution of the RSA;”
The official score-sheet as per Annexure B of the Resolution was used for scoring the candidates. According to the score-sheet in Annexure B, candidates were scored in terms of the following prescribed criteria.
See: Bundle C, p. 39
• Relevant and appropriate formal qualification = 40
• Relevant and appropriate informal qualification = 15
• Relevant and appropriate experience = 15
• Employee Equity = 30
Total = 100
• The SMGD (Circuit Manager) was in agreement with the above criteria and the outcome of the short-listing process.
• The SGB complied with the Equity Targets of the Department. Candidates from the designated groups (Africans, Coloureds, Indians) were awarded 30 points. This also applied to the Applicant as a candidate from the designated groups as defined by the Department regarding the definition for designated groups.
See: Bundle C, p. 40
• The Applicant was amongst the five candidates who scored the highest marks during the short-listing process and was invited for an interview.
• All the parties to the process (including the union representative/s who was present) accepted the criteria and the process followed for the short-listing of the candidates. During a pre-arb meeting held between the departmental representative and the SAOU on 10 October 2014, no documentation could be provided as proof that a grievance/dispute was received from any party to the process regarding the short-listing and/or interview processes.
29. The Applicant was interviewed, obtained the highest score during the interview process and was recommended by the SGB for appointment on the basis of the following:
See: Bundle A and Bundle C, p. 45 – 46
• The Applicant ranked the highest in score.
• The Applicant is the correct gender and race (comply with the equity targets of the department)
• The Applicant answered the questions fairly well
• The Applicant is very clear about the performance template (APIP).
This decision was once again supported by the departmental representative (SMGD/Circuit Manager) who attended both the short-listing and interview processes, and also the report back meeting with the full SGB of the school during July 2013 when the final decision was taken by the SGB of the school to appoint the Applicant. The SMGD was in agreement with the decision to recommend the Applicant for appointment as the best candidate for the vacant post of Deputy Principal at Luckhoff Combined School, based on her performance during the interview.
30. The process had been carried out according to the Department’s own guidelines/instructions and under the supervision of the SMGD (Circuit Manager) who was in agreement with the entire process. The fact that the recommendation was not accepted by the Free State Education Department and the fact that the process had been nullified by the departmental officials was not only unlawful, but also unreasonable and unfair. The question could rightfully be asked whether there was a hidden agenda. This question will remain unanswered.
31. The Applicant submits that the decision of the Free State Education Department to repeat the entire process of short-listing and interviews, to exclude her from the process and to appoint Ms Skosana in the post, was unlawful in terms of the provisions of Chapter 3, Section 6 of the EEA. Chapter 3, Sections 6 – 9 of the EEA deals with appointments, promotions and transfers of educators. The following is provided in support of this submission.
31.1 Section 6(3)(a) provides that:
“Subject to paragraph (m), any appointment … to any post on the educator establishment of a public school …, may only be made on the recommendation of the governing body of the public school …”
31.2 Section 6(3)(c) provides that:
“The governing body … must submit, in order of preference to the Head of Department, a list of:
(i) at least three names of recommended candidates; or
(ii) fewer than three candidates in consultation with the Head of Department.”
32. In exercising the power to make appointments, the Head of Department (HOD) is required by Section 6(3)(d) of the EEA to ensure that the SGB of a school has met the requirements of Section 6(3)(b) to the effect that the principles of equity, redress and representatively, as well as the democratic values and principles referred to in Section 7(1) have been complied with. No evidence exists that the SGB did not comply with the stipulations of Section 6(3)(b) of the EEA.
33. In terms of Section 6(3)(e) of the EEA the HOD must (own emphasis) decline the recommendation for appointment if the SGB of the school has not met the requirements of Section 6(3)(b). No evidence exists, however, that the appointment of the Applicant was declined on the basis of non-compliance with Section 6(3)(b). The SGB in fact fully complied with these stipulations. The declining of the applicant’s appointment for other reasons which was a misrepresentation of the facts, was therefore unlawful and also constituted unfair administrative action in terms of the Constitution of South Africa and PAJA Section 6.
34. If an HOD declines the recommendation of the SGB in terms of Section 6(3)(e), the provisions of Section 6(3)(g) must be applied. Section 6(3)(g) provides that:-
“If the Head of Department declines a recommendation, he or she must–
(i) consider all the applications submitted for that post;
(ii) apply the requirements in paragraph 6.3(b)(i) to (iv); and
(iii) despite paragraph (a), appoint a suitable candidate temporarily or re-advertise the post.”
This process could not happen and did not happen, because the HOD did not decline the recommendation of the SGB in terms of Section 6(3)(e). No other provision exists according to which the recommendation of the SGB of a school can be nullified, especially not in instances like this where the SGB complied with all departmental and other procedures as prescribed per applicable legislation. The decision therefore to nullify the process and to repeat it, was grossly unlawful and constituted gross misuse of power. The Applicant was the victim and suffered serious prejudice due to this.
35. It was clear from the provisions of Section 6(3) of the EEA that the HOD or delegated officials, given the reasons provided to the Applicant in the letter dated 28 March 2014, acted outside their statutory powers when the decision was taken.
• To repeat the short-listing and interview processes;
• To exclude the Applicant from competing for the post, and
• To appoint Ms Skosana and not the Applicant as Deputy Principal of Luckhoff Combined School.
36. The Applicant submitted further that the decision not to appoint her, violated her right to lawful, reasonable and fair administrative action as contemplated in Section 33 of the Constitution, read with Section 6 of the provisions of the Promotion of Administrative Justice Act (PAJA) in that:
• The administrative action taken was procedurally unfair;
• The action was taken for a reason not authorised by the empowering provision.
• The action was taken in bad faith.
• The action was taken arbitrarily and/or capriciously.
And that it was evident that the decision taken not to appoint the Applicant was irrational and not reasonable or in accordance with the provisions of PAJA and a gross violation of the Applicant’s Constitutional rights to fair and just administrative action.
37. The Applicant submitted further that she was seriously prejudiced due to the unlawful decision taken by the Free State Education Department not to appoint her in the advertised post of Deputy Principal as advertised at Luckhoff Combined School.
38. The Applicant submitted further that the Free State Education Department acted irresponsibly and maliciously when they continued with the appointment of Ms Skosana, well knowing that a dispute was registered in the ELRC. It is also the Applicant’s submission that the Free State Department was aware of the provisions of Section 6 of the EEA and the action taken was for a pre-determined reason known only to them.
39. The Applicant submitted further that she qualified for appointment as Deputy Principal at Luckhoff Combined School w.e.f. at least 1 August 2013. Although the advertised post had been filled by Ms Skosana, a vacant post of Deputy Principal was available on the establishment of Luckhoff Combined School due to the retirement of the previous incumbent. The post had not been advertised yet.
40. In conclusion, the Applicant argued that the officials who instructed the SGB to repeat the processes, acted disrespectfully towards the members of the SGB by making them believe that they were incompetent regarding the processes to be followed – this happened in spite of the fact that the SGB, under the supervision of the SMGD (Circuit Manager) executed their duties properly and correctly in accordance with the prescribed procedures. The SGB was given no option, but to repeat the processes. This was an abuse of power and should be seen in a very serious light.
41. The SGB of Luckhoff Combined School serves a very poor community. The school was financially not in a position to fight this decision in a Court of law because they could just not afford it. This makes the abuse of power on the part of a state organ even more serious and unacceptable. If the SGB was in a position to approach a Court of law, they would have been successful and the Applicant would have been appointed. Enough case law exists to prove this statement.
See: Neutral citation: Head of Western Cape Education Department v Governing Body of Point High School (584/2007 (2008) ZASCA 48 (31 March 2008).
See: Bundle C, p. 47 – 66
42. Section 6 of PAJA makes it possible for employees such as the Applicant to approach a tribunal such as the ELRC for the review of administrative action which is unlawful, not reasonable or unfair.
43. As to relief the Applicant sought:
• A finding that the Free State Education Department’s decision to repeat the processes and to exclude the Applicant from the processes was unlawful and constituted an unfair labour practice in terms of her promotion to the post of Deputy Principal at Luckhoff Combined School.
• A finding that the decisions taken by the Free State Education Department constituted unlawful, unreasonable and unfair administrative action
• A finding that the Applicant be promoted to the position of Deputy Principal retrospectively from at least 1 September 2013 in the vacant post of Deputy Principal which currently exists on the post establishment of Luckhoff Combined School.
The First Respondent’s Submissions
44. The Applicant was employed by the First Respondent as a post level 1 educator was mistakenly short-listed. The First Respondent advertised a vacancy list where all qualifying Applicants would apply for the posts that would be in their interests.
45. The basis of the Applicant’s case is that she was short-listed and interviewed and recommended and therefore she qualifies for a promotion to the level of Deputy Principal as alleged.
46. The Applicant is a post level one educator and the post she applied for is two ranks above her position and is a managerial position which needs a person with a certain level of experience to be able to manage those under her supervision.
47. In terms of the procedure relating to the selection process in respect of applicants for an educator’s post, a panel is established and constitutes of members of the SGB, who are mainly parents. SAOU at page 2 of their submission at par. 1.6 raise issue with the manner in which the criteria were formulated in annexure “A”.
48. The Applicant did not satisfy the criteria that requires her to be an Acting HOD or to be an HOD or acting as either the Deputy Principal or acting as an HOD in her current position. The Applicant was a post level 1 educator, whereas the position she applied for was a managerial position.
49. It would have been unfair of the employer to expect the Applicant to perform to the expected standard, if she was appointed, because as a post level 1 educator she does not possess the required knowledge and the relevant experience to perform such duties properly and it would have been a very expensive exercise for the employer.
50. The panel erred in recommending the Applicant because she did not satisfy a condition as set out in the criteria referred to in annexure “A”. The conduct of the panel by ignoring what was supposed to have guided them was irregular and therefore their recommendation was irregular and null and void ab initio.
51. The reason for setting certain criteria is to ensure that relevant people are appointed. If all post level one educators were permitted or short-listed the list would have been endless. It is reasonable that a criterion should be created so as to avoid short-listing candidates that did not possess the required knowledge and experience, unnecessarily.
52. The documents and legislation referred to by the Applicant are meant to apply in a normal interviewing process, where all processes and procedures were properly followed.
53. The minutes of the interviews (submitted as annexure “B”) indicate no amendment to the criteria. It must also be stated that a prerogative to appoint rests with the employer.
54. Where the referees of the Applicant state a negative report about the Applicant, who is a prospective employee, the employer has a discretion to appoint or not to appoint. In this instance, a negative report was also presented to the panel about the conduct of the Applicant which amongst other things is that she does not attend to her classes regularly and she keeps others off their jobs by visiting during schooling hours.
55. The Applicant did not meet the required criteria and she is not yet ready to lead, she must first be developed through the ranks of the Department of Education for her not to struggle in her future endeavours. The Dispute Committee of which every union is represented stand as an advisor to the SGB before an appointment is made to avoid unnecessary disputes.
ANALYSIS OF THE ARGUMENT:
56. In general, an employer has the right to appoint or promote employees whom it considers the best or most suitable. Arbitrators are, therefore reluctant to interfere with the employer’s choice in the absence of unfairness.
57. In Van Rensburg v Northern Cape Provincial Administration (1997) 18 ILJ 1421 (CCMA) it was held that interference in the employer’s decision is justified only where its conduct is “so grossly unreasonable as to warrant an interference that they failed to apply their mind”. See also: NUMSA v Aberdare Power Cables [2003] 3 BALR 123 METBC.
58. A number of principles have developed around promotion disputes one judgement that considered these is that of Arries v CCMA and Others [2006] 11 BLLR 1062 (LC). In that matter, Nel AJ approached the question as follows:
“What Ms Arries sought to persuade the Commissioner of was to interfere with the merits of a discretion exercised by the employer whether or not to promote Ms Arries. I, accordingly, first considered how our Courts generally have approached the question of interfering with a discretion which has been exercised by another party. Then I looked at how this has been approached in the employment juris prudence. A consideration of this question discloses that there are limited grounds on which an arbitrator, or a Court, may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. Interference with the discretion of an employer is, in my view, akin to the interference of an appeal with a discretion exercised by a Court of law…”
59. The above dictum was quoted with approval in City of Cape Town v SAMWU [2013] 3 BLLR 267 LC, where the Court also expressed the view that the proper test whether or not to interfere with the employer’s discretion is fairness.
60. In SAPS v SSSBC and Others [2010] 8 BLLR 892 (LC), the Court held that a decision to re-advertise a post externally fails within managerial prerogative and is not unfair.
61. The case for the Applicant was that the First Respondent had committed an unfair labour practice in terms of Section 186(2)(a) of the LRA. The Applicant argued that the officials of the First Respondent, who instructed the SGB to repeat the process, acted disrespectfully towards the members of the SGB, this happened despite the fact that the process followed happened under the supervision of the SMGD. The SGB executed their duties properly and correctly in accordance with the prescribed procedure. This was an abuse of power.
62. It was submitted on behalf of the First Respondent that the interviewing panel erred in recommending the Applicant because she did not satisfy a condition set out in the criteria. The Applicant was a level one educator and was recommended for a level three Deputy Principal post.
63. The Applicant did not satisfy the criteria that she should be an acting HOD or HOD, or acting Deputy Principal. In addition the position she applied for was a managerial position.
64. The conduct of the interviewing panel by ignoring what was supposed to have guided them was irregular and therefore their recommendation was irregular and of no force or effect.
65. The decision to promote or not to promote falls within the managerial prerogative of the employer. In the absence of gross unreasonableness or bad faith or where the decision relating to promotion is seriously flawed, the Court and arbitrator should not readily interfere with the exercise of the discretion.
66. The role of the Commissioner is to oversee that the employer did not act unfairly towards the candidate that was not promoted.
67. Without repeating the First Respondent’s arguments, it is apparent therefrom that there were cogent reasons to re-advertise the post. On the other hand, the Applicant has not demonstrated that the decision to redo the process in an arbitrary manner and therefore unfair. In any event, such a decision was a managerial decision and competent.
68. I am of the view that no unfair labour practice was committed in re-advertising the post and my conclusion is supported by the authorities that I have referred to above.
69. The Applicant is therefore not entitled to any relief.
AWARD:-
70. The First Respondent has not committed an unfair labour practice relating to the promotion in respect of the Applicant
71. The Applicant’s dispute, referred under case reference PSES72-14/15FS, is dismissed without an order for costs.
JEROME MTHEMBU
ELRC PANELIST
Province: Free State
Applicant: SAOU obo VP VAN NIEKERK
Respondent: Department of Education Free State
Issue: Unfair Labour Practice - Discrimination
Award Date: 30 March 2015
Arbitrator: Jerome Mthembu
Case No PSES72-14/15FS
In the matter between
SAOU obo VP VAN NIEKERK Applicant
and
DEPARTMENT OF EDUCATION: FS First Respondent
and
Ms Skosana Second Respondent
ARBITRATOR: JEROME MTHEMBU
HEARD: 20 October 2014 and 26 February 2015
DATE OF AWARD: 30 March 2015
SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) - alleged unfair conduct relating to promotion
DETAILS OF HEARING AND REPRESENTATION:
1. The hearing was held on 20 October 2014 and 26 February 2015. Mrs Strydom of SAOU represented the Applicant and Mr Tladi the First Respondent.
2. The parties agreed that the matter be determined on the basis of their respective written arguments, namely:
2.1 The Applicant’s written arguments filed on 31 October 2014;
2.2 The First Respondent’s written arguments to be filed by 23 March 2015
2.3 The Second Respondent did not oppose the matter and did not file any arguments.
THE ISSUE TO BE DECIDED:
3. Whether the First Respondent committed an unfair labour practice relating to promotion in failing to promote the Applicant to the post of Deputy Principal at Luckhoff Combined School advertised in Departmental Vacancy List 2 of 2013.
BACKGROUND TO THE ISSUE:
4. During March 2013 a vacant post of Deputy Principal at Luckhoff Combined School was advertised in the Departmental Vacancy List 2 of 2013. The school is situated in the town of Luckhoff in the Xhariep District. The reference number for the post as advertised in the Vacancy List was 840022/301.
See: Bundle C, p. 12 – 20
5. According to the Vacancy List, the date for commencement of duty in the advertised posts was 1 July 2013.
6. The Applicant, Ms V P Van Niekerk, was one of the candidates who applied for this post. She was shortlisted for an interview, was interviewed and recommended by the SGB as their preferred candidate for the appointment to the advertised post of Deputy Principal. These processes were completed around July 2013.
7. During March 2014, the Applicant became aware of rumours that the short-listing and interviewing processes for the post were to be repeated. She reported this to the SAOU. The SAOU lodged a grievance on her behalf on 17 March 2014.
See: Bundle C, p. 21 – 22
8. According to the attached affidavit of the chairperson of the SGB (See: Bundle A) of Luckhoff Combined School, Mr Coetzee, the SGB made enquiries about the fact that after a long period of time, the appointment of the recommended candidate had not been confirmed by the Department of Education. Soon thereafter, officials of the department visited the school and informed them that a decision had been taken to repeat the process. Although the SGB objected to this decision, they were made to believe that they were ignorant of the correct processes and requirements. According to the SGB Chairperson, the Applicant was excluded from the second round of short-listing and interviews on the instruction of the departmental officials. She was therefore not considered for appointment during the second round of short-listing and interviews.
9. In a letter addressed to the office of the SAOU dated 28 March 2014, the Director of the Xhariep District office responded as follows to the grievance:
“The selection process is repeated because some of the short-listed candidates:
1. Did not meet the criteria of being “the HOD or acted on the HOD post or higher” as per application submitted;
2. Did not meet the criteria of Afrikaans first language and
3. One had a negative reference or reference check did not make a recommendation for promotion.
The abovementioned discrepancies lead to the repeat of the entire process.”
See: Bundle C, p. 23
10. On 16 April 2013 the SAOU sent an e-mail to the HOD of the Free State Education Department, as well as the District Director, Mr Mokoena informing them that the reasons given were not accepted and that a formal dispute would be registered with the ELRC. A request was made to the Department that the filling of the post be put on hold until the dispute had been resolved.
See: Bundle C, p. 24
11. On 6 May 2014 another e-mail was sent to the Director: Labour Relations requesting that the filling of the post at Luckhoff Combined School be placed on hold until the dispute had been resolved.
See: Bundle A, p. 25
No response was received on this e-mail.
SURVEY OF THE ARGUMENT:
The Applicant’s Submissions
12. The Applicant’s case is to the effect that her non-appointment in the post of Deputy Principal at Luckhoff Combined School constituted an unfair labour practice relating to promotion (Section 186(2)(a) of the LRA). That she qualified for appointment as Deputy Principal, as recommended by the SGB of Luckhoff Combined School, but it was declined by the Department in an unlawful manner.
13. The reasons provided by the District Office for repeating the process are not valid, and the processes which followed were unlawful and unfair in terms of the provisions of the EEA, Section 6(3) and the PAM, Chapter B, par. 3. It is a fact that the Applicant complied with the criteria set by the short-listing and interview panel of the SGB, as was also agreed to by the departmental representative who represented the Department during these processes.
14. The Applicant’s case is also that the Free State Education Department violated her right to lawful, reasonable and procedurally fair administrative action as contained in Section 33 of the Constitution of the Republic of South Africa, 108 of 1996.
15. Further in view of the fact that the advertised post had been filled, she should be appointed in the current vacant post of Deputy Principal at Luckhoff Combined School, retrospective from at least 1 September 2013. The process resulting in her being nominated for appointment was completed on 24 July 2013. A post of Deputy Principal at Luckhoff Combined School, had in the meantime become vacant due to the retirement of the incumbent and had not been advertised yet. It was available for her appointment. This had been confirmed by the SGB Chairperson.
See: Bundle A
16. Vacant educator posts are advertised in terms of the Employment of Educators’ Act (EEA) and Personnel Administration Measures (PAM).
17. Sections 6(3) and 7(1) of the EEA contain the fundamental prescriptions, both to the Governing Body and to the HOD as to how the selection and appointment procedures are to be conducted. Chapter B, par. 3.3 of the PAM prescribes the processes for the advertising and filling of educator posts. The HOD, District Directors and other senior officials at the Department should be well acquainted with the statutory provisions contained in Section 6 of the EEA, as well as the PAM.
18. The SGB, under the supervision of the departmental representative (School Management and Government Development (Circuit Manager)), fully complied with the prescribed criteria and procedures. No evidence exists that they violated any of the relevant prescriptions.
19. In addition to the above, the Free State Education Department also relies on a resolution concluded in the Free State ELRC, namely FS ELRC Resolution 1/2012 (hereinafter referred to as the Resolution) – “Guidelines for advertising and filling of educator posts at institutions.” This resolution contains further agreed upon guidelines to streamline the processes and prescripts of the PAM. All officials should be well acquainted with the contents of this Resolution.
See: Bundle C, p. 26 – 41
20. The SGB, under the supervision of the departmental representative (SMGD (Circuit Manager)) fully complied with the guidelines contained in this resolution. No evidence exists that they violated any of the relevant prescriptions.
21. The requirements for appointment are contained in PAM, Chapter B, par. 2 under the heading “Appointment in Education”. Refer to par. 2.2 which regulates the minimum requirements for appointment as an educator (par. 2.2(a)). The minimum requirements for appointment to a post of Deputy Principal (Post Level 3) (par. 2.2(b)(ii)) are as follows:
• PAM, Chapter B, par. 2.2(a)(i): In order to qualify for appointment as an educator a person must have at least a recognised three year qualification (REQV 13) which must include appropriate training as an educator.
• PAM, Chapter B, par. 2.2(b)(ii): The minimum requirements in respect of experience for appointment to promotion posts are as follows:
Post Level 3 (Deputy Principal) = 5 years
The Applicant met these requirements and was accordingly eligible for appointment to a post of Deputy Principal.
22. It is incomprehensible:
as to which prescripts and/or legislation the District Office based the identified “discrepancies” which “lead to the repeat of the entire process” as stated in the letter to the SAOU dated 28 March 2014. See: Par. 9 above
• as to which legislation the District Office based its decision to “repeat the entire process”.
23. The actions of the Free State Education Department is a total violation of Section 6.3 of the Educators’ Employment Act and the PAM, Chapter B, par. 3. It amounts to serious abuse of power. This will be dealt with in arguments.
24. All applications for advertised posts must be submitted to the relevant District Offices (par. 2.5 of the FS ELRC Resolution 1/2012). The role of the District Offices is to comply with the provisions of the PAM, Chapter B, par. 3.2, read with par. 3 of the Resolution, namely:
“The relevant district office shall handle the initial sifting process to eliminate all those candidates who do not comply with the requirements for the post(s) as stated in the advertisement” (own emphasis)
After the sifting process was done, only the applications of candidates who qualified for appointment to the advertised post of Deputy Principal at Luckhoff Combined School were submitted to the SGB of the school. The Applicant’s application was indeed submitted to the SGB for consideration during the formal short-listing and interview processes for appointment.
25. The initial processes of short-listing and interviews took place during April / May 2013. A short-listing and interviewing panel was duly appointed by the SGB of Luckhoff Combined School in accordance with the stipulations of PAM, Chapter B, par. 3.3, read with par. 4 of FS ELRC Resolution 1/2012 (Guidelines for advertising and filling of educator posts at institutions).
See: Bundle C, p. 32
26. Mrs V Buka-Koto (an SMGD / Circuit Manager) represented the Free State Education Department as an observer and resource person for both the short-listing and interview processes which took place during the initial process (April to July 2013). In terms of par. 4.4.2 of the Resolution the role of the departmental representative is restricted to the status of observer and advisor. Par. 4.4.2 (3rd bullet) of the Resolution indicates that “… The Resource person shall advise the panel pertaining to the relevant departmental policies, rules and regulations as well as appropriate legislation.” (own emphasis). As senior official of the Department it can be assumed that Ms Buka-Koto is aware of this responsibility and that she would have acted accordingly if and when necessary.
27. The short-listing process was done in accordance with par. 4.6 of the Resolution which reads as follows:
See: Bundle C, p. 34
“The committees must ensure that:
4.6.1 The short-listing criteria are fair, non-discriminatory and in line with the Departmental Employment Equity Plan, other prescripts and the Constitution of the RSA;
4.6.2 the nature of the post, as well as its inherent needs and the job profile, i.e. qualities of suitable candidates e.g. leadership, communication and other relevant skills, are taken into account;
4.6.3 the obligation of the employer towards serving educators is met;
4.6.4 the list of short-listed candidates for interview purposes should not exceed five and should not be less than three candidates per post.
4.6.5 a probity check (own emphasis) of each short-listed candidate’s credentials (authenticity of the CV, qualifications and all other documents) must be done by the Resource Person before the interviews;
4.6.6 the Resource person will in a prescribed format provide the report of the above to the interviewing panel as indicated on 4.6.5 above;
4.6.7 the minimum educational requirements of the post and required experience are complied with;
4.6.8 if more than five candidates complied with the requirements and criteria set by the committee and are scored, three candidates must be placed on a reserve list in case of possible withdrawals;
4.6.9 the panel only uses the score sheet approved by the Superintendent General for only those candidates who qualified according to the set requirements and criteria of the committee (own emphasis).”
28. Regarding the short-listing process, the following facts cannot be disputed.
See: Bundle A
• The SGB decided to score all applicants and to interview the five candidates with the highest scores. As already stated above, only the applications of those applicants who qualified for appointment in the advertised post, were submitted to the SGB. In view of the fact that all the applicants therefore were eligible for appointment, this criteria complied with the stipulations of the agreed upon guidelines as stipulated in par. 4.6.1 of the Resolution, which stipulates that:
“The committees must ensure that … The short-listing criteria are fair, non-discriminatory and in line with the Departmental Employment Equity Plan, other prescripts and the Constitution of the RSA;”
The official score-sheet as per Annexure B of the Resolution was used for scoring the candidates. According to the score-sheet in Annexure B, candidates were scored in terms of the following prescribed criteria.
See: Bundle C, p. 39
• Relevant and appropriate formal qualification = 40
• Relevant and appropriate informal qualification = 15
• Relevant and appropriate experience = 15
• Employee Equity = 30
Total = 100
• The SMGD (Circuit Manager) was in agreement with the above criteria and the outcome of the short-listing process.
• The SGB complied with the Equity Targets of the Department. Candidates from the designated groups (Africans, Coloureds, Indians) were awarded 30 points. This also applied to the Applicant as a candidate from the designated groups as defined by the Department regarding the definition for designated groups.
See: Bundle C, p. 40
• The Applicant was amongst the five candidates who scored the highest marks during the short-listing process and was invited for an interview.
• All the parties to the process (including the union representative/s who was present) accepted the criteria and the process followed for the short-listing of the candidates. During a pre-arb meeting held between the departmental representative and the SAOU on 10 October 2014, no documentation could be provided as proof that a grievance/dispute was received from any party to the process regarding the short-listing and/or interview processes.
29. The Applicant was interviewed, obtained the highest score during the interview process and was recommended by the SGB for appointment on the basis of the following:
See: Bundle A and Bundle C, p. 45 – 46
• The Applicant ranked the highest in score.
• The Applicant is the correct gender and race (comply with the equity targets of the department)
• The Applicant answered the questions fairly well
• The Applicant is very clear about the performance template (APIP).
This decision was once again supported by the departmental representative (SMGD/Circuit Manager) who attended both the short-listing and interview processes, and also the report back meeting with the full SGB of the school during July 2013 when the final decision was taken by the SGB of the school to appoint the Applicant. The SMGD was in agreement with the decision to recommend the Applicant for appointment as the best candidate for the vacant post of Deputy Principal at Luckhoff Combined School, based on her performance during the interview.
30. The process had been carried out according to the Department’s own guidelines/instructions and under the supervision of the SMGD (Circuit Manager) who was in agreement with the entire process. The fact that the recommendation was not accepted by the Free State Education Department and the fact that the process had been nullified by the departmental officials was not only unlawful, but also unreasonable and unfair. The question could rightfully be asked whether there was a hidden agenda. This question will remain unanswered.
31. The Applicant submits that the decision of the Free State Education Department to repeat the entire process of short-listing and interviews, to exclude her from the process and to appoint Ms Skosana in the post, was unlawful in terms of the provisions of Chapter 3, Section 6 of the EEA. Chapter 3, Sections 6 – 9 of the EEA deals with appointments, promotions and transfers of educators. The following is provided in support of this submission.
31.1 Section 6(3)(a) provides that:
“Subject to paragraph (m), any appointment … to any post on the educator establishment of a public school …, may only be made on the recommendation of the governing body of the public school …”
31.2 Section 6(3)(c) provides that:
“The governing body … must submit, in order of preference to the Head of Department, a list of:
(i) at least three names of recommended candidates; or
(ii) fewer than three candidates in consultation with the Head of Department.”
32. In exercising the power to make appointments, the Head of Department (HOD) is required by Section 6(3)(d) of the EEA to ensure that the SGB of a school has met the requirements of Section 6(3)(b) to the effect that the principles of equity, redress and representatively, as well as the democratic values and principles referred to in Section 7(1) have been complied with. No evidence exists that the SGB did not comply with the stipulations of Section 6(3)(b) of the EEA.
33. In terms of Section 6(3)(e) of the EEA the HOD must (own emphasis) decline the recommendation for appointment if the SGB of the school has not met the requirements of Section 6(3)(b). No evidence exists, however, that the appointment of the Applicant was declined on the basis of non-compliance with Section 6(3)(b). The SGB in fact fully complied with these stipulations. The declining of the applicant’s appointment for other reasons which was a misrepresentation of the facts, was therefore unlawful and also constituted unfair administrative action in terms of the Constitution of South Africa and PAJA Section 6.
34. If an HOD declines the recommendation of the SGB in terms of Section 6(3)(e), the provisions of Section 6(3)(g) must be applied. Section 6(3)(g) provides that:-
“If the Head of Department declines a recommendation, he or she must–
(i) consider all the applications submitted for that post;
(ii) apply the requirements in paragraph 6.3(b)(i) to (iv); and
(iii) despite paragraph (a), appoint a suitable candidate temporarily or re-advertise the post.”
This process could not happen and did not happen, because the HOD did not decline the recommendation of the SGB in terms of Section 6(3)(e). No other provision exists according to which the recommendation of the SGB of a school can be nullified, especially not in instances like this where the SGB complied with all departmental and other procedures as prescribed per applicable legislation. The decision therefore to nullify the process and to repeat it, was grossly unlawful and constituted gross misuse of power. The Applicant was the victim and suffered serious prejudice due to this.
35. It was clear from the provisions of Section 6(3) of the EEA that the HOD or delegated officials, given the reasons provided to the Applicant in the letter dated 28 March 2014, acted outside their statutory powers when the decision was taken.
• To repeat the short-listing and interview processes;
• To exclude the Applicant from competing for the post, and
• To appoint Ms Skosana and not the Applicant as Deputy Principal of Luckhoff Combined School.
36. The Applicant submitted further that the decision not to appoint her, violated her right to lawful, reasonable and fair administrative action as contemplated in Section 33 of the Constitution, read with Section 6 of the provisions of the Promotion of Administrative Justice Act (PAJA) in that:
• The administrative action taken was procedurally unfair;
• The action was taken for a reason not authorised by the empowering provision.
• The action was taken in bad faith.
• The action was taken arbitrarily and/or capriciously.
And that it was evident that the decision taken not to appoint the Applicant was irrational and not reasonable or in accordance with the provisions of PAJA and a gross violation of the Applicant’s Constitutional rights to fair and just administrative action.
37. The Applicant submitted further that she was seriously prejudiced due to the unlawful decision taken by the Free State Education Department not to appoint her in the advertised post of Deputy Principal as advertised at Luckhoff Combined School.
38. The Applicant submitted further that the Free State Education Department acted irresponsibly and maliciously when they continued with the appointment of Ms Skosana, well knowing that a dispute was registered in the ELRC. It is also the Applicant’s submission that the Free State Department was aware of the provisions of Section 6 of the EEA and the action taken was for a pre-determined reason known only to them.
39. The Applicant submitted further that she qualified for appointment as Deputy Principal at Luckhoff Combined School w.e.f. at least 1 August 2013. Although the advertised post had been filled by Ms Skosana, a vacant post of Deputy Principal was available on the establishment of Luckhoff Combined School due to the retirement of the previous incumbent. The post had not been advertised yet.
40. In conclusion, the Applicant argued that the officials who instructed the SGB to repeat the processes, acted disrespectfully towards the members of the SGB by making them believe that they were incompetent regarding the processes to be followed – this happened in spite of the fact that the SGB, under the supervision of the SMGD (Circuit Manager) executed their duties properly and correctly in accordance with the prescribed procedures. The SGB was given no option, but to repeat the processes. This was an abuse of power and should be seen in a very serious light.
41. The SGB of Luckhoff Combined School serves a very poor community. The school was financially not in a position to fight this decision in a Court of law because they could just not afford it. This makes the abuse of power on the part of a state organ even more serious and unacceptable. If the SGB was in a position to approach a Court of law, they would have been successful and the Applicant would have been appointed. Enough case law exists to prove this statement.
See: Neutral citation: Head of Western Cape Education Department v Governing Body of Point High School (584/2007 (2008) ZASCA 48 (31 March 2008).
See: Bundle C, p. 47 – 66
42. Section 6 of PAJA makes it possible for employees such as the Applicant to approach a tribunal such as the ELRC for the review of administrative action which is unlawful, not reasonable or unfair.
43. As to relief the Applicant sought:
• A finding that the Free State Education Department’s decision to repeat the processes and to exclude the Applicant from the processes was unlawful and constituted an unfair labour practice in terms of her promotion to the post of Deputy Principal at Luckhoff Combined School.
• A finding that the decisions taken by the Free State Education Department constituted unlawful, unreasonable and unfair administrative action
• A finding that the Applicant be promoted to the position of Deputy Principal retrospectively from at least 1 September 2013 in the vacant post of Deputy Principal which currently exists on the post establishment of Luckhoff Combined School.
The First Respondent’s Submissions
44. The Applicant was employed by the First Respondent as a post level 1 educator was mistakenly short-listed. The First Respondent advertised a vacancy list where all qualifying Applicants would apply for the posts that would be in their interests.
45. The basis of the Applicant’s case is that she was short-listed and interviewed and recommended and therefore she qualifies for a promotion to the level of Deputy Principal as alleged.
46. The Applicant is a post level one educator and the post she applied for is two ranks above her position and is a managerial position which needs a person with a certain level of experience to be able to manage those under her supervision.
47. In terms of the procedure relating to the selection process in respect of applicants for an educator’s post, a panel is established and constitutes of members of the SGB, who are mainly parents. SAOU at page 2 of their submission at par. 1.6 raise issue with the manner in which the criteria were formulated in annexure “A”.
48. The Applicant did not satisfy the criteria that requires her to be an Acting HOD or to be an HOD or acting as either the Deputy Principal or acting as an HOD in her current position. The Applicant was a post level 1 educator, whereas the position she applied for was a managerial position.
49. It would have been unfair of the employer to expect the Applicant to perform to the expected standard, if she was appointed, because as a post level 1 educator she does not possess the required knowledge and the relevant experience to perform such duties properly and it would have been a very expensive exercise for the employer.
50. The panel erred in recommending the Applicant because she did not satisfy a condition as set out in the criteria referred to in annexure “A”. The conduct of the panel by ignoring what was supposed to have guided them was irregular and therefore their recommendation was irregular and null and void ab initio.
51. The reason for setting certain criteria is to ensure that relevant people are appointed. If all post level one educators were permitted or short-listed the list would have been endless. It is reasonable that a criterion should be created so as to avoid short-listing candidates that did not possess the required knowledge and experience, unnecessarily.
52. The documents and legislation referred to by the Applicant are meant to apply in a normal interviewing process, where all processes and procedures were properly followed.
53. The minutes of the interviews (submitted as annexure “B”) indicate no amendment to the criteria. It must also be stated that a prerogative to appoint rests with the employer.
54. Where the referees of the Applicant state a negative report about the Applicant, who is a prospective employee, the employer has a discretion to appoint or not to appoint. In this instance, a negative report was also presented to the panel about the conduct of the Applicant which amongst other things is that she does not attend to her classes regularly and she keeps others off their jobs by visiting during schooling hours.
55. The Applicant did not meet the required criteria and she is not yet ready to lead, she must first be developed through the ranks of the Department of Education for her not to struggle in her future endeavours. The Dispute Committee of which every union is represented stand as an advisor to the SGB before an appointment is made to avoid unnecessary disputes.
ANALYSIS OF THE ARGUMENT:
56. In general, an employer has the right to appoint or promote employees whom it considers the best or most suitable. Arbitrators are, therefore reluctant to interfere with the employer’s choice in the absence of unfairness.
57. In Van Rensburg v Northern Cape Provincial Administration (1997) 18 ILJ 1421 (CCMA) it was held that interference in the employer’s decision is justified only where its conduct is “so grossly unreasonable as to warrant an interference that they failed to apply their mind”. See also: NUMSA v Aberdare Power Cables [2003] 3 BALR 123 METBC.
58. A number of principles have developed around promotion disputes one judgement that considered these is that of Arries v CCMA and Others [2006] 11 BLLR 1062 (LC). In that matter, Nel AJ approached the question as follows:
“What Ms Arries sought to persuade the Commissioner of was to interfere with the merits of a discretion exercised by the employer whether or not to promote Ms Arries. I, accordingly, first considered how our Courts generally have approached the question of interfering with a discretion which has been exercised by another party. Then I looked at how this has been approached in the employment juris prudence. A consideration of this question discloses that there are limited grounds on which an arbitrator, or a Court, may interfere with a discretion which had been exercised by a party competent to exercise that discretion. The reason for this is clearly that the ambit of the decision-making powers inherent in the exercising of a discretion by a party, including the exercise of the discretion, or managerial prerogative, of an employer, ought not to be curtailed. It ought to be interfered with only to the extent that it can be demonstrated that the discretion was not properly exercised. Interference with the discretion of an employer is, in my view, akin to the interference of an appeal with a discretion exercised by a Court of law…”
59. The above dictum was quoted with approval in City of Cape Town v SAMWU [2013] 3 BLLR 267 LC, where the Court also expressed the view that the proper test whether or not to interfere with the employer’s discretion is fairness.
60. In SAPS v SSSBC and Others [2010] 8 BLLR 892 (LC), the Court held that a decision to re-advertise a post externally fails within managerial prerogative and is not unfair.
61. The case for the Applicant was that the First Respondent had committed an unfair labour practice in terms of Section 186(2)(a) of the LRA. The Applicant argued that the officials of the First Respondent, who instructed the SGB to repeat the process, acted disrespectfully towards the members of the SGB, this happened despite the fact that the process followed happened under the supervision of the SMGD. The SGB executed their duties properly and correctly in accordance with the prescribed procedure. This was an abuse of power.
62. It was submitted on behalf of the First Respondent that the interviewing panel erred in recommending the Applicant because she did not satisfy a condition set out in the criteria. The Applicant was a level one educator and was recommended for a level three Deputy Principal post.
63. The Applicant did not satisfy the criteria that she should be an acting HOD or HOD, or acting Deputy Principal. In addition the position she applied for was a managerial position.
64. The conduct of the interviewing panel by ignoring what was supposed to have guided them was irregular and therefore their recommendation was irregular and of no force or effect.
65. The decision to promote or not to promote falls within the managerial prerogative of the employer. In the absence of gross unreasonableness or bad faith or where the decision relating to promotion is seriously flawed, the Court and arbitrator should not readily interfere with the exercise of the discretion.
66. The role of the Commissioner is to oversee that the employer did not act unfairly towards the candidate that was not promoted.
67. Without repeating the First Respondent’s arguments, it is apparent therefrom that there were cogent reasons to re-advertise the post. On the other hand, the Applicant has not demonstrated that the decision to redo the process in an arbitrary manner and therefore unfair. In any event, such a decision was a managerial decision and competent.
68. I am of the view that no unfair labour practice was committed in re-advertising the post and my conclusion is supported by the authorities that I have referred to above.
69. The Applicant is therefore not entitled to any relief.
AWARD:-
70. The First Respondent has not committed an unfair labour practice relating to the promotion in respect of the Applicant
71. The Applicant’s dispute, referred under case reference PSES72-14/15FS, is dismissed without an order for costs.
JEROME MTHEMBU
ELRC PANELIST