Case Number: PSES472-15/16 GP
Applicant: MACHETE E
Respondent: Department of Education Gauteng
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Department of Education Tshwane North District Office
Award Date: 4 May 2016
Arbitrator: JOHANN E PRETORIUS
Case Number: PSES472-15/16 GP
Commissioner: JOHANN E PRETORIUS
Date of Award: 04 MAY 2016
In the ARBITRATION between
DEPARTMENT OF EDUCATION - GAUTENG
Employee’s representative: EJ Makaleng (SADTU Rep)
Employee’s address: 288/1 Block BB
Respondent’s representative: Department of Education – Gauteng
Respondent’s address: Private Bag X7710
DETAILS OF HEARING AND REPRESENTATION
1. This matter was heard at the Department of Education Tshwane North District Office on 15 April 2016, the applicant was represented by Mr. Makaleng a SADTU official. The respondent was represented by Mr. Matli of the respondent. The successful candidate Ms. Mangwane was joined in the process as second respondent.
2. The hearing was digitally recorded.
3. Bundles of documents were handed up “A and B which include Annexures D to H”.
THE BACKGROUND TO THE DISPUTE
4. The applicant is employed by the respondent as a HoD at Kgadime Matsepe Secondary School. The applicant applied and was shortlisted for a Deputy Principal position at Mathaga Primary School.
5. The applicant was listed as the number 01 candidate in terms of points scored during the interviews by the SGB. The respondent appointed the number 03 candidate on the list of preferred candidates.
6. The applicant is of the view that the decision not to appoint him was arbitrarily made as he was found to be the best candidate during the shortlisting and interview process.
POINTS IN LIMINE
7. The applicant’s representative raised a point in limine regarding the bundle of documents submitted by the respondent in particular Annexure D as the EEA was amended after the applicant’s appointment.
8. The respondent’s representative pointed out that the section on which it relies for the matter in dispute was not amended. This was not disputed by the applicant’s representative and the document was allowed as evidence in the arbitration.
ISSUES TO BE DECIDED
9. The issue to be decided was whether the respondent acted unfairly in not appointing the applicant in the Deputy Principal position.
SUMMARY OF EVIDENCE AND ARGUMENT
THE APPLICANT’S CASE
The applicant Mr. Machete testified as follows:
10. He is a teacher with 20 years teaching experience; in addition he has managerial experience as he is a HOD since 2012. He also has various qualifications in teaching.
11. According to his understanding when there is applications for appointments the SGB only recommend for appointment, the delegated authority in this case the District Director make the decision to appoint. If the Director does not appoint candidate number 01 she must motivate within 14 days or convene a meeting with the SGB to discuss the reasons for the deviation. This is in accordance with section 7(1) of the EEA.
12. He met all the requirements set out for the post and the District Director acted arbitrarily in not appointing him. He has the relevant experience and qualifications and is better qualified than the other two candidates as he has an Education Management qualification.
13. He was the number 01 candidate, but the Director appointed the number 03 candidate Ms. Mangwane. The score sheet on page 30 of bundle “A” indicated that he was the best candidate. The scores alone cannot be used to appoint the successful candidate, but is used as a tool.
14. During the shortlisting and interview process there was a resource person present who was appointed by the District Director. He endorsed both processes.
15. Given his experience in finances and the importance thereof in schools, it is surprising that the Director chose to ignore the applicant’s knowledge and skills and appointed the number 03 candidate who according to the SGB lacks the relevant skills for the position, for this reason the Director was unreasonable in appointing the number 03 candidate.
16. In cross-examination he testified that he is currently working at a secondary school while the advertised post was at a primary school. He conceded that primary and high schools does not have the same curriculum but submitted that it is not relevant to the advertised position as a Deputy Principal does not teach.
17. It was put to him that the preferred candidate, Ms. Mangwane, has 18 years’ experience as an HOD whereas he only has 04 years.
18. He also conceded the SGB only make a recommendation and do not make the appointment. He read into the record Bundle “B” 5.5.3 that the Director may appoint any suitable candidate on the list. He agreed that the successful candidate Ms. Mangwane was on the list from the SGB.
19. He held by his opinion that if the number 01 candidate is not appointed that amounts to a deviation which the Director has to motivate he disagreed that the Director only has to motivate of she does not appoint any of the 03 candidates on the list.
THE RESPONDENT’S CASE
The respondent’s representative called upon two witnesses to testify on behalf of the respondent. The first witness of the respondent, Mr. Enock Ntsuntusha, testified as follows:
20. He is a Deputy Chief Education Specialist. During the process of appointing a Deputy Principal at Mothega Primary School he was appointed by the Deputy Director as the resource person, his role was to guide the sitting in terms of policies of the Department and to supply the necessary documents etc.
21. He was present during the shortlisting and interview process. During the ratification process he was not present, that was done by the SGB as well as the motivation for preferred candidates.
22. He disagreed that he endorsed the applicant for appointment. That was not his duty; his duty was to get the top 03 candidates, the SGB then do motivations and the decision to appoint lies with the District Manager. According to him there is no duty to appoint the number 01 candidate, 03 candidates are selected and the Director then makes a final decision on who to appoint.
The second witness of the respondent, Ms. Rachel Mekwa, testified as follows:
23. Her role in the recruitment process was to receive the file from the relevant offices she had to make sure that the file was in order. There were 03 appointable persons on the list; she looked for the most suitable person to appoint. Annexure E sec 6(3) (f) of the EEA provide that she may appoint any suitable candidate on the list.
24. When she makes a decision to appoint she considers the following factors: qualification, general experience, relevant experience, other experience, in the matter before us she preferred the no 03 candidate as she has a qualification which is relevant to primary schools, her experience is relevant to primary schools where candidates number 01 and 02 did not have experience in primary schools, she applied her mind when she made the appointment. The applicant had 03 years’ experience as a HOD at a high school whereas the applicant had 17 years and 09 months as a HOD at a primary school.
25. The applicant was further preferred to the other listed candidates as the position would also entail teaching and the successful candidate is current with the primary school curriculum and the unsuccessful candidates not as they are secondary school teachers.
26. If she would be to find that not one of the 03 candidates on the list provided by the SGB would be suitable for a certain position she can deviate and appoint one of the other candidates nominated by the SGB or re-advertise the post.
27. In cross-examination the witness conceded that there is no rule that a person from a secondary school cannot be appointed at a primary school. She maintained however that she appointed the most suitable candidate based on relevant primary school qualifications and experience.
28. She clarified and explained that a deviation would be when she does not appoint any of the 3 candidates on the SGB list of preferred candidates.
SECOND RESPONDENT’S SUBMISSION
29. The successful candidate, Ms Mangwane was joined in the process and submitted that the process was fair and that the first respondent appointed the best candidate for the position.
Both parties’ submitted written heads of argument on 22 April 2016. The submitted heads of argument were regarded in its totality and are referred to as annexures “C” and “D”. A summary of the heads of argument are reflected below:
The respondent’s argument, Bundle “C”
The respondent’s representative contended as follows:
- The witness for the employer party, Mrs. R Mekwa who was the District Director, indicated that as the delegated authority she appointed the joinder based on experience and qualification on the type of school. It must be indicated that the type of school in this regard is an ordinary primary school. Mrs. Mekwa further indicated that she did not go outside the recommendation of the SGB and further involved the SGB not to be surprised. She indicated that in terms of experience the joinder had more experience in a primary school that the applicant. She further indicated the joinder do in terms her qualifications has financial management.
- Under cross-examination the applicant conceded that he never worked at a primary school and that the curriculum was not the same. His qualification is that of High School.
- It is our view as the Employer submit that the SGB only recommend and the provincial education appoints any of the three recommended candidates by the SGB as stated in Sections 6 (1) and (3) of The Employment of Educators Act. It is further our take that despite the order of preference of the SGB, the Head of Department/Delegated authority may appoint any suitable candidate on the list as stated in Section 6 (3) (f) of the Employment of Educators Act. We further believe that the delegated authority in the form of the District Director placed a significant weight on the order of preference by the SGB before appointing the joinder as held in the case of Head of Western Cape Education Department and Others v Governing Body of Point High School and Others 2008 (5) SA 18 (SCA).
- It is therefore the Departmental wish that this matter be dismissed.
The applicant’s argument, Bundle “D”
The applicant’s representative argued as follows:
- The SGB remain an important stakeholder in recruitment, selection, appointment and promotion of educators without which the HoD or delegated authority cannot effect appointment. In this instance the governing body did perform its duty i.e. shortlisted and interviewed qualifying candidates. The governing body made motivation for each candidate (refer to pp 25 to 28) and recommended the preferred list to the first respondent for appointment.
- Under cross examination the first respondent conceded that she did not consider the governing body’s motivation.
- The resource person whose responsibility is to guide the governing body in the entire process, Mr Ntsuntsha, was appointed by the first respondent. He testifies that both shortlisting and interview processes went well, namely the processes were free and fair. And that recommended list of the governing body is indicative of the candidates responses to the same questions asked during interviews. The district office of the first respondent trains governing bodies on processes of shortlisting and interviews. It is surprising, it was contended, that the first respondent trains the governing body and appoints a resource person to oversee the two processes, but ultimately does not consider their input. Hence she acted arbitrarily in her decision to appoint the second respondent. Furthermore, she says that she did not consider the governing body motivations, because the motivations were subjective, but how does she arbitrarily conclude that because she was not party during the interview? Also, the rule of audi alterum partem was not applied because governing bodies’ members’ side of story is not heard.
- The advert is very clear: It states the school type: ordinary (public). School types in our country are categorized as follows: 1. Public Ordinary schools 2. LSEN (Learners with special needs schools) 3. AET (Adult Education Training) 4. Technical Schools and SASA speaks of independent and or private schools. The respondent’s insistence on experience in a primary school is misplaced and therefore irrelevant due to the nature of the post.
- Evidence of the first respondent about primary school-curriculum also must be dismissed, because it applies only in Post Level 2 (HoD) which requires subject specific skills. In fact the first respondent has conceded under cross examination that there is no law that prevents a primary teacher from working at a secondary school. And why appoint considering primary experience as opposed to secondary experience? The respondent has set a precedent in moving a primary school principal to manage a secondary school and vice versa. Where is consistency on the side of the employer?
- Appointments of educators are done in terms of EEA 76 of 1998 and Collective Agreement 2 of 2005.
- The EEA 76 of 1998 dictates that HoD or delegated authority may appoint any suitable candidate on the governing body recommended list guided by section 7(1). The power to appoint any suitable candidate is subjected to 1(a) ability of the candidate (b) addressing equality and equity. Our view is that the applicant has the ability and capabilities to the Deputy Principal based on his qualification, experience, management, financial and leadership skills as captured by motivation of Governing body (refer page 25 on bundle) and his ability to display his experience, qualification and knowledge acquired in his work life during the interviews. And (b) becomes a non-starter because GDE had no equity plan to effect Employment Equity Act in 2015.As opposed to second respondent who with her experience ,qualification and motivation by governing body(refer page 27) and her poor performance , lack of financial management etc.
- The resource person conceded that there was no indication of undue influence to all candidates. The list on recommendation of governing body was purely on merit and performance in the interview by each candidate.
- Collective Agreement 2/2005 clause 4 on appointment on bundle F: sub clause 4.2.2 reads: The order of preference as recommended by the SGB and at least includes the names of 3(three) interviewed candidates who can be ranked and or appointed i.e. If the top ranked candidate declines the post, the next candidate will be appointed from the list.
- The first respondent conceded under cross examination that she did not consider EEA 76 of 1998 and Collective Agreement 2 of 2005 when deciding on appointing second respondent. The implication is that she acted ultra vires and unlawful. And that she did not consider motivation of governing body therefore relied on her own with no regard to legal framework. We can conclusively say that she acted arbitrarily in her decision to appoint the second respondent.
- It is our firm believe that the first respondent’s failure to appoint the applicant was biased, based on wrong principle and failed to apply her mind. We humbly persuade Commissioner to rule in our favour by appointing the applicant retrospectively from the 1st of September 2015.
ANALYSIS OF EVIDENCE AND ARGUMENT:
30. The purpose of a summary of evidence in an arbitration award is not a restatement of evidence in a form approximating a complete verbatim recording, but the listing of relevant evidence and arguments in a relatively simple form to show which relevant factors were taken into consideration. Only evidence relevant to the determining of the dispute is summarized. The failure to record any issue in this award raised in arbitration does not mean that its relevance was not considered.
31. I have considered all the arguments, together with the other evidence, oral and documentary, presented by the parties during the arbitration hearing. I have also considered all the relevant provisions of the Employment of Educators Act, no. 76 of 1998 (EEA).
32. The relevant statutory provision to this matter is section 186(2)(a) of the LRA, which reads as follows:
33. “’Unfair labour practice’ means any unfair act or omission that arises between an employer and an employee involving -
34. (a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;”
35. The applicant alleges an unfair labour practice and must show that it falls within the provisions of the definition contained in section 186(2) (a) above. The onus in an unfair labour practice disputes falls on the applicant. The applicant must prove on a balance of probabilities that the respondent acted unfairly. The employee must prove not only the existence of the labour practice, if it is disputed, but also that it is unfair. The employer must actually have done something or refused to do something. Whether the employer has committed an unfair labour practice is an objective, factual enquiry.
36. Mere unhappiness or a perception of unfairness does not establish unfair conduct - see Du Toit et al Labour Relations Law (5th ed) 488, as well as South African Municipal Workers Union obo Damon v Cape Metropolitan Council (1998) 20 ILJ 714 (CCMA). What is fair depends upon the circumstances of a particular case and essentially involves a value judgement. The fairness required in the determination of an unfair labour practice must be fairness toward both employee and employer (see National Union of Metalworkers of SA v Vetsak Co-Operative Ltd & others 1996 (4) SA 577 (SCA) 1 589C–D; National Education Health & Allied Workers Union v University of Cape Town & others (2003) 24 ILJ 95 (CC) 2.
37. In Aries v CCMA & others (2006) 27 ILJ 2324 (LC) the court held that there are limited grounds on which an arbitrator, or a court, may interfere with a discretion which has 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 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.
38. The court held further that an employee can only succeed in having the exercise of a discretion of an employer interfered with if it is demonstrated that the discretion was exercised capriciously, or for insubstantial reasons, or based upon any wrong principle or in a biased manner.
39. The applicant believes that he was the best candidate for the post based on him being scored as the number 01 candidate by the SGB and believes that he is better qualified than the preferred candidate.
40. The applicant testified that the scoresheet is used as a guideline and the final decision to appoint lies with the District Director. The District Director testified that decision to appoint the second respondent or number 03 applicant on the list provided by the SGB was not an arbitrarily decision. She applied her mind and considered the number 03 candidate to be the most suitable for the position. I find that the reasons as provided by the District Director for not appointing the applicant to be valid and reasonable.
41. I am of the opinion that the first respondent had reasonable and fair grounds for not appointing the applicant, and it could not be classified as defective reasoning on the part of the first respondent.
42. Dissatisfaction or a general perception of unfairness is not sufficient when there is no obvious or glaring deviation from the prescribed process: I find no substance in the argument that the applicant was treated unfairly. The first respondent did not act irrationally, capriciously or arbitrarily.
43. The onus is on the applicant to prove an unfair labour practice relating to promotion, and I find that the applicant did not discharge that onus. I am satisfied that the first respondent did not commit a practice that would constitute unfair action that would fall within the definition of an unfair labour practice as provided for in section 186(2)(a) of the LRA. Accordingly the applicant’s claim is dismissed.
a. I conclude that the respondent had not acted unfairly in regard to a promotion in the present case. The application is refused.
JOHANN E PRETORIUS