Case Number: PSES 178-15/16EC
Province: Eastern Cape
Applicant: Naptosa abo. Leon Mark Nico Zealand
Respondent: Department of Education Eastern Cape
Venue: District Offices in Uitenhage
Award Date: 5 November 2015
Arbitrator: Jonathan Gruss
Panellist/s: Jonathan Gruss
Case No.: PSES 178-15/16EC
Date of Award: 5 November 2015
In the ARBITRATION between:
NAPTOSA obo LEON MARK NICO ZEALAND
DEPARTMENT OF EDUCATION: EASTERN CAPE& 3 OTHERS
Applicant’s representative: Mr Adams
Applicant’s address: PO Box 34700
Port Elizabeth, 6055
Telephone: 041 364 0399
Telefax: 041 364 0259
Respondent’s representative: Ms Watson
Respondent’s address: Private Bag x 64
Telephone: (041) 9954044
Telefax: (041) 995 4018 / 082451 55580
DETAILS OF HEARING AND REPRESENTATION
1. The dispute was referred for arbitration in terms of section 191(5)(a)(iv) of the Labour Relations Act 66 of 1995 as amended (“the LRA”). The hearing was held at the District Offices in Uitenhage on 19 August 2015 and 14 October 2015. The proceedings were electronically recorded. The Applicant, Leon Mark Nico Zealand was represented by Mr Adams, an official from NAPTOSA. The Respondent, Department of Education: Eastern Cape was represented by Ms Watson, a Labour Relations Officer. The MEC for Education: Eastern Cape and the Superintendent General for the Department of Education: Eastern Cape was joined at the commencement of the proceedings and was represented by Ms Watson. The incumbents of the two dispute posts, Mr Gouza and Ms Baartjies and the SGB of St Colmcille Secondary School were also joined. The Applicant abandoned his claim for the two appointments to be set-aside and instead he sought compensations as relief. As a consequence to the change in relief, they chose not to participate in the arbitration in that they no longer had a substantive interest in the arbitration. The parties by agreement submitted written closing arguments; the final date for submission was on 29 October 2015.
ISSUE TO BE DECIDED
2. I am required to determine whether or not, the Respondent, Department of Education: Eastern Cape committed an unfair labour practice as contemplated in terms of section 186(2) of the LRA in not short-listing the Applicant, Leon Mark Nico Zealand to be interviewed for the two (2) posts of Deputy Principal, Post level 3, post number 1267 and 1269 at St Colmcille Secondary School.
3. At the commencement of the arbitration hearing, the parties agreed that the following were accepted as common cause facts, namely:
3.1 The Applicant commenced employment with the Respondent during 1991.
3.2 He is currently the HOD for languages and sciences at St Colmcille Secondary School in Kirkwood and has been in that position since 1994.
3.3 He currently earns R321 723.00 per annum.
3.4 He has previously acted in the position of Principal, post level 2 for a period of four months.
3.5 On 3 February 2015, two posts of Deputy Principal, post level 3 at St Colmcille Secondary School in Kirkwood were advertised. Closing date was 27 February 2015. He applied for both positions, post number 1267 and 1268, both at the same school.
3.6 On 19 March 2015, the SGB conducted the short listing for the posts and the Applicant was not shortlisted.
3.7 Interviews for the posts were held on 28 March 2015.
3.8 Both posts were filled on 1 June 2015 by Mr Gouza and Ms Baartjies.
3.9 On 6 May 2015, the Applicant’s union, NAPTOSA enquired from the District Director in Uitenhage reasons why the Applicant was not shortlisted. The Union furthermore requested the District Director not to make an appointment until the Applicant’s grievance had been resolved.
3.10 On 1 June 2015, the Respondent provided that Applicant with reasons why the Applicant was not shortlisted. The reasons were compiled in a written reply dated 19 May 2015 by the Principal, Mr Balie.
3.11 According to the reasons, relevant to both posts, the following was provided:
3.11.1 The candidate used an incorrect abbreviation on application form to indicate an institution (D.E which is a Diploma in Education instead of D.O.E which is Department of Education.)
3.11.2 Incorrect post level indicated on the form regarding previous post in Education .
3.11.3 No specialised subjects indicated on application form.
3.11.4 Incorrect information furnished on CV reflects Finestone Foundation and on application form it stated D.E. instead of The Stone fountain Model presents Drug Abuse Prevention Management Workshop .
3.11.5 The candidate did not indicate NQF level on application form.
3.11.6 The panel felt that the posts advertised required a candidate to be strong in Management and Administration. If a candidate makes administrative errors in the application form, the candidate would not serve the needs of the school.
3.11.7 The panel, in the pre-short listing, when drawing up the criteria clearly indicated completed, correct application form. This will reflect strong administration skills which was a need at the school.
3.11.8 Due to the large number of application forms received, the panel had to draw up very strict criteria regarding Management and Administration and especially administration errors by candidates lead to disqualification.
3.12 The Applicant claims that the Respondent perpetrated an unfair Labour practice by acting procedurally unfair in relation to short listing because the reasons given are trivial.
3.13 The Respondent in response thereto, argued that the SGB was entitled to list additional criteria according to the needs of the school.
SURVEY OF EVIDENCE AND ARGUMENT
4. This is a brief summary of evidence considered as provided for in terms of section 138(7)(a) of the LRA relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.
EVIDENCE AND ARGUMENT
5. The Respondent elected to commence first in leading evidence. Mr Ian Theophilus Balie testified to the following effect.
5.1 He is the Principal at St Colmcille Secondary School in Kirkwood and was appointed as the Principal on 1 March 2014. Prior thereto, he acted as the Principal since 1 July 2013 in that he was at the time the Deputy Principal of the school.
5.2 When he arrived at the school in 2013 the Applicant was acting as the Principal.
5.3 He was the resource person for the selection panel and represented the Respondent during the process. He attended the short listing meeting. The panel decided to add additional short listing criteria and the SGB had a broad discussion concerning how critical the Deputy Principals’ posts were to the school. So specific needs of the school was addressed that culminated in additional criteria for short listing.
5.4 In relation to post number 1268 they received 16 application forms and regarding post number 1267 they received 20 application forms. It was a requirement that application forms must have been completed correctly and completed in full. A lot of candidates fell out because their application forms were not completed correctly or completed in full and as a consequence thereto they were left with only three candidates to interview.
5.5 The Applicant fell out in that in he made numerous mistakes in his application form when applying for both positions. When listing previous posts, he was not sure whether he acted in a post level 3 or post level 4 post when acting as Principal. The Applicant also failed to include subjects in which he specialised when recording his qualification.
5.6 The panel felt that as a Deputy Principal, management and administration was a priority and the fact that the Applicant made errors and left out important information on his application form, this meant that he was not suitable for the post.
5.7 When short listing candidates and discussing respective candidates they referred to the candidates by their number and not by name.
ANALYSIS OF EVIDENCE AND ARGUMENT
6. In SAPS v Safety and Security Bargaining Council & others (LC Case no: P426/08; judgment date 27/10/2010). A candidate for promotion (Noonan) referred a dispute to arbitration. The successful candidate had failed to disclose that he had a valid verbal warning and in fact indicated that he had not been convicted of any disciplinary offences during the period of his current rank or post level. Mr Noonan alleged that this failure to disclose his prior disciplinary record resulted in the selection panel not being able to apply its mind to his integrity and suitability; as a consequence thereto, the selection panel's failure to apply its mind to this aspect rendered its recommendation of the third party invalid. Mr Noonan argued that SAPS had committed an unfair labour practice relating to promotion in not promoting him, which prejudiced his career progression within the SAPS.
7. The Arbitrator in the Noonan matter found that SAPS had committed an unfair labour practice and ordered SAPS to promote Mr Noonan. The award was taken on review to the Labour Court where Cheadle AJ set down the following principles, which were interpreted to give a very wide discretion to employers in the selection / recruitment process. These are summarised below:
• There is no right to promotion in the ordinary course; only a right to be given a fair opportunity to compete for a post.
• Any conduct that denies an employee an opportunity to compete for a post constitutes an unfair labour practice.
• If the employee is not denied the opportunity of competing for a post then the only justification for scrutinising the selection process is to determine whether the appointment was arbitrary or motivated by an unacceptable reason.
• As long as the decision can be rationally justified, mistakes in the process of evaluation do not constitute unfairness justifying an interference with the decision to appoint.
• As a general rule the appropriate remedy is to refer the decision back in order to allow the complainant a fair opportunity to compete. The exception being where there has been discrimination or victimization and there are compelling constitutional interests at stake or if the applicant proves that but for the unfair conduct, he or she would have been appointed.
8. Noonan took the Labour Court’s decision on appeal to the Labour Appeal Court (Noonan v Safety & Security Sectoral Bargaining Council & others (2012) 33 ILJ 2597 (LAC)). The LAC criticized Cheadle AJ’s approach that the unfairness of the non-disclosure and its consequences were not material unless it affected the opportunity for promotion, which it held was not the case. The LAC said the following:
'This approach overlooks several aspects. The first is that there was no disclosure by the third party at all. The second is that the National Commissioner condoned the failure after the appointment was made. The third is that it downplays the value of process and lends support to possible dishonest practices. Fourthly it devalues the role of the first selection panel. And importantly it prejudiced the appellant as he would possibly have been ranked first on the list of recommendations.'
9. The LAC, in dealing with the Labour Court's view, that mistakes do not constitute unfairness if the decision can be rationally justified, said the following:
'...the non-disclosure enables the non-disclosing candidate to rise through the process to a stage where the National Commissioner is able to condone the lapse. This is manifestly unfair. Every applicant is obliged to apply his or her mind carefully to the application form and to complete it honestly and diligently so as to compete fairly with other candidates.'
10. Quoting Professor PAK Le Roux writing in Cheadle Landman Le Roux and Thompson Current Labour Law 1991/1992 at 17: ‘The court should be careful not to intervene too readily in disputes regarding promotion, especially to senior management positions, and should regard this as an area where managerial prerogative should be respected unless bad faith or improper motives such as discrimination are present.’
11. The Applicant chose not to testify and relied on common cause facts as presented at the commencement of the proceedings as well as information provided under cross examination of Mr Balie. His decision not to testify had no negative bearing on the outcome of this matter. The Applicant referred to the application form of Mr Gouza, one of the successful candidates and pointed out that he left out his language proficiency for isizulu and he recorded that his highest NQF level qualification was 5 whereas he should have written in 6. Therefore, he argued that Mr Gouza, did not know his own NQF level. In response thereto, Mr Balie pointed out that the Applicant left the space blank where one would write down the NQF level. It was further pointed out to Mr Balie, contrary to a testimonial attached to the application form that Mr Gouza was a HOD (head of department) whereas Mr Gouza’s application form makes no mention of this. Mr Balie responded that in short listing candidates they did not look at testimonials, they only looked at the application forms and CV’s. In relation to the application form of Ms Baatjie, also a successful candidate, it was pointed out that she failed to indicate her language proficiency for isiXhosa and isiZulu.
12. The determining question is whether or not it was fair of the Respondent not to shortlist the Applicant for reasons as provided. I must agree with the Applicant that some of the reasons provided are trivial in this regard I refer to the Applicant’s reference in his application of short courses such as D.E instead of DOE or Finestone Foundation. The fact that the Applicant recorded his post level for acting in the position of Principal to be post level 3/4 cannot be a justifiable reason to penalise the Applicant. However, the failure of the Applicant in recording his highest NQF level and subjects he specialised in when referring to qualifications is fatal. This is because candidates are measured up against each other in that the strongest candidates are the candidates that are shortlisted and invited to interviews. The positions advertised were that of Deputy Principal and good managerial and administrative qualities were determined by the panel to be characteristics of a candidate to succeed to be appointed. Therefore, the panel took exception to the manner in which the Applicant completed his application form in that he left out important information such as highest NQF level and specialised subjects. Reference to purported errors in the application forms of Mr Gouza and Ms Paatjie was not convincing. Firstly, I can find no fault in a candidate when dealing with language proficiency leaving out comments for languages that they do not speak, we have 9 official languages and therefore in relation to Mr Gouza, he does not speak, read or write IsiZulu and Ms Plaatjie also does not speak, read or write certain languages. The fact that the short listing panel did not pick up the error of Mr Gouza’s highest NQF level does not mean that the panel did not apply their minds. They simply made a mistake. Based on the evidence of Mr Balie because of errors on application forms, the vast majority of candidates were excluded for that reason and only three candidates were interviewed. There is nothing wrong with the SGB setting high standards for candidates they want to teach their children. It is clear in relation to short listing; the panel was consistent in their approach.
13. I can find no irregularity in the process of short listing and therefore the panel did not treat the Applicant unfairly in not short listing him. The Applicant has not shown that the Respondent was arbitrary or capricious in its conduct. The Applicant has not shown that the Respondent deliberately attempted to exclude him from the recruitment process. Based on the evidence, the applicant has failed to discharge the onus that the Respondent committed an unfair labour practice in relation to promotion.
14. I find that the Respondent, Department of Education: Eastern Cape did not committed an unfair labour practice as contemplated in terms of section 186(2)(a) of the LRA in not short listing the Applicant, Leon Mark Nico Zealand.
Name: Jonathan Gruss