PSES 837 - 15/16LP
PSES 837 - 15/16LP
Award Date:
14 June 2016
Case Number: PSES 837 - 15/16LP
Province: Limpopo
Applicant: MOHOTO, L.M
Respondent: Department of Education Limpopo
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Polokwane, Limpompo Province.
Award Date: 14 June 2016
Arbitrator: Thando Ndlebe
Case No:PSES837-15/16LP
In the matter between
MOHOTO, L.M Applicant
and
DEPARTMENT OF EDUCATION, LIMPOMPO Respondent
ARBITRATOR: Thando Ndlebe
DELIVERED: 14 June 2016
ARBITRATION AWARD
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter was set down before me on 30 May 2016 as an arbitration process in Polokwane, Limpompo Province. The Applicant had referred an unfair labour with practice with the Council in terms of section 186(2) (a) of the Labour Relations Act 66 of 1995 as amended (“the LRA”).
2. The Applicant, namely Mr. L.M Mohoto, was present in the proceedings. The Applicant was represented by Mr. S.G Baloyi, an attorney from Baloyi-Shihari Attorneys. The Respondent was represented by Mr. R. Makhema, its Labour Relations Officer.
BACKGROUND TO THE DISPUTE AND ISSUE TO BE DECIDED
3. The Applicant referred an alleged unfair labour practice dispute with the Council. The Applicant was appointed by the Respondent on 25 April 1996 and is currently appointed as an Educator at Suthula Secondary School.
4. I have to determine whether or not the Respondent committed unfair labour practices against the Applicant.
SURVEY OF EVIDENCE AND ARGUMENTS
Applicant’s case
Mr. Lazaros Makgabo Mohoto
5. On 1 January 2014 he was appointed as an Acting Principal of Sethula Secondary School. He started acting as a Principal at the school after the School Governing Body wrote a letter to the Respondent to the effect that he must act in that capacity until the position was filled permanently. The new Principal only commenced his services at Sethula Secondary School on 1 June 2015. Whilst he was acting as a Principal, he performed all the normal responsibilities associated with the role. At the end of January 2014 he telephoned an official at the Circuit office and raised the issue of the acting allowance payment as he was not receiving same from the Respondent.
6. The Circuit office was aware that he was acting as a Principal as he interacted with the office during
his tenure. He discussed the issue of the non-payment of the acting allowance with officials of the
South African Democratic Teachers Union, {“Sadtu”). The letter dated 23 January 2015 at page B1 of Bundle “A” is a confirmation that Sadtu sent correspondence to the Respondent about his acting allowance. During his time as Acting Principal he was involved is summative assessments and the annual national assessments. Mr. Van Vuuren, an employee of the Respondent confirmed that he was appointed as an Acting Principal. The documents appearing pages D4 to D9 of Bundle “A” are a confirmation that he was attending to the school and that he had employees who reported to him.
7. He never received an appointment letter from the Respondent in respect of the Acting Principal position, but he received same from the School Governing Body. He acted as Principal from 1 January 2015 to May 2015. He was paid an acting allowance by the Respondent in November 2015. He does not know the exact amount he was supposed to receive as an acting allowance. The acting allowance he got paid was for the period from 1 May 2014 to 31 December 2014. The Respondent was supposed to pay the acting allowance from 1 January 2014 to 31 May 2015.
8. He never received a letter from the Respondent confirming that he was acting as Principal. The Respondent did not issue him with a termination letter in respect of the appointment of Acting Principal. Resolution 1 of 2008 provides that a person who has acted in a position for twelve months must be shortlisted in the process of filling the vacancy. He met the entry requirements for the position of Principal at Sethula Secondary School. He applied for the position of Principal on 1 September 2015, but he never received any response from the Respondent in respect of the application.
9. Paragraph 4.1 of Resolution 1 of 2008 as appearing at page C-4 and c-5 of Bundle “A” provides that the Respondent shall acknowledge receipt of applications by informing all applicants in writing of receipt, clearly indicating whether the application is complete or not and indicating whether the applicant meets the requirements for the post and that such applications have been referred to the institutions concerned. He never received feedback from the Respondent in respect of his application. The Respondent should also pay an acting allowance for the period he acted as Principal of Sethula Secondary School.
Under cross-examination, Mr. Mohoto responded as follows;
10. He was appointed by the Sethula Secondary School’s School Governing Body to act as Principal. His employer is the School Governing Body and the Respondent. He acted as Principal from 1 January 2014 to 31 May 2015. It is not correct that there was no teaching at Sethula Secondary School from January 2914 to April 2014. He does not understand paragraph 7.5 of Resolution 1 of 2008 and as appearing at page C2 of Bundle “A” where it is stated that a permanent serving educator who acts for twelve (12) or more continuous months in a promotion post and meets the minimum requirements must be shortlisted and that the educator must have been authorized by the Head of Department to act in the position. He was recommended to act as Principal by the School Governing Body.
11. He rendered services as Acting Principal at Sethula Secondary School but he was not paid an acting allowance for the whole period of the appointment. He was never appointed by the Respondent to act as Principal. He never received an appointment letter from Ms. Van Vuuren, the Palala South Circuit Manager, as appearing at Bundle “4”. He did not enrich himself during the period of acting as Principal.
Respondent’s case
Mr. Trevor Mafanele Mathebula
12. He is appointed by the Respondent as a Deputy Director-Corporate Services. He is responsible for the Respondent’s human resources management functions at District level.
13. At paragraph 3.2 of Employment Act 76 of 1998 as appearing at page 1 of Bundle “B-1” it is the Respondent that has a duty to advertise vacant posts and after advertising it has a duty to conduct the sifting process which is guided by the advert. The purpose of the sifting process during the recruitment exercise is to eliminate applicants that do not comply with the minimum requirements of the post. Applications that do not meet the minimum requirements are not sent to the recruiting schools.
14. Paragraph 4 of Resolution 1 of 2008 as appearing at pages C4 and C5 of Bundle “A” provides that the Respondent must confirm receipt of applications, indicate if the application is complete or not, indicate that the applicant meets the minimum requirements of the application and indicate if the applications have been referred to the institution concerned. Applicants must duly complete form LPDE 1 as confirmed at pages 4 and 11 to 14 of Bundle “B-1”. The LPDE 1 form requests for personal particulars, experience of the applicant and at the end it has a declaration section. In the event the LPDE 1 form is not properly completed, it means that the application will be sifted out of the recruitment process.
15. The Applicant’s application for the post of Principal of Sethula Secondary School did not have the LPDE 1 Form declaration addendum. It was not possible for the Applicant’s application to be sent to the school as it was not signed and it did not have a duly completed declaration addendum. The Respondent sent a letter dated 12 January 2015 to the Applicant by post confirming that his application was received but that it was incomplete. It was not possible to promote the Applicant to the position of Principal of Sethula Secondary School as his application could not be sent to the School Governing Body as it did not have a signed declaration.
Under cross-examination, Mr. Mathebula responded as follows;
16. The letter to the Applicant advising him of his application form was sent by mail. He did not bring the checklist information in terms of when the letter was sent to the Applicant to the arbitration proceedings. The letter at page 2 of Bundle “B-1” was signed by Mr. Mashishi who is appointed by the Respondent. It is incorrect that the Applicant acted as a Principal of Sethula Secondary School from1 January 2014 to 31 May 2015. The Applicant acted as principal from 1 May 2014 to 31 December 2014 and that is why the Respondent paid him an acting allowance for that period.
17. The letter from the School Governing Body dated 20 January 2014 as appearing at page D3 of Bundle “A” does not mean that the Respondent could immediately appoint the Applicant into the position of Acting Principal. The School Governing Body makes a recommendation to the Circuit Manager and the recommendation is then attended to for final approval of the District Manager. The Respondent did not fabricate the letter that was sent to the Applicant pertaining to the update in respect of his application. It is the District Manager who can approve appointment recommendations from School Governing Bodies. The Respondent appoints an employee to act on a promotion post by issuing him or her with a formal appointment letter. The Applicant was paid in full for the period that he acted as Principal of Sethula Secondary School.
Ms. Anna Jacoba Van Vuuren
18. She is appointed by the Respondent as a Circuit Manager for the Palala South Circuit and Sethula Secondary School falls under her jurisdiction.
19. She wrote a letter to the Respondent dated 30 October 2014 and as appearing at page 18 of Bundle “B-1” wherein he was recommending the Applicant for promotion. There was no schooling when Sethula Secondary School re-opened in January 2014. It was not possible for a Principal to act at that stage as there was no schooling. There was an employee who was supposed to act at Sethula Secondary School in 2014 but there was interference from a trade union and that person ended up not filling that position. The Respondent made a decision to appoint Mr. Ramashala into the position of Principal in March 2015. There is no employee who acted at Sethula Secondary School from 1 January 2014 to May 2014. It is the Respondent that has the authority to make appointments.
Under cross-examination, Ms. Van Vuuren responded as follows;
20. Sethula Secondary School was not operational in January 2014 because of unrest. It is the District Manager that has the final say on an appointment of an acting Principal. Paragraph 3.1 at a Circular dated 6 December 2005 and as appearing at page D of Bundle “A” means that if a position of Principal becomes available at a school, the Deputy Principal cannot be overlooked. However, the Circular dated 6 December 2005 is very old and there have been many Circulars that have been issued by the Respondent thereafter. When the Applicant was declared as excess staff at the school, there was no need to appoint him to act. The Applicant acted as Principal from May 2014 to December 2014.
ANALYSIS OF EVIDENCE AND ARGUMENT
21. In my analysis, I have considered the evidence and closing arguments from both parties. At the commencement of the arbitration proceedings the Respondent made an application to the effect that the Council lacked jurisdiction to hear this matter as the Applicant’s claims were merely “complaints”. I found in favour of the Applicant in this regard and found that the Council had jurisdiction to hear this matter.
22. The matter before me is in respect of two issues; namely, the promotion of the Applicant into the position of Principal and whether the Respondent is liable to pay the Applicant an acting allowance.
Promotion
22. It is provided at section 3(4) of the Employment of Educators Act 76 of 1998 that Educators are appointed by the Head of Department. It is therefore clear that an employee or Educator can never be appointed into a promotional post without the Head of Department or any other person with delegated authority making such formal appointment. However, before such an appointment can be made, the Respondent must follow a formal recruitment process. It was the evidence of the Applicant that he applied for the post of Principal of Sethula Secondary School but he was not considered for short-listing by the Respondent. According to the Applicant the Respondent failed to comply with paragraph 4 of Resolution 1 of 2008 because it did not inform him of the receipt of the application or whether his application was complete or not. On the other hand, the Respondent submitted evidence in terms of a letter dated 12 January 2015 and appearing at page 2 of Bundle “B-1” that his application was incomplete. The submission for the Applicant was that he never received the letter dated 12 January 2015. The Respondent through Mr. Mathebula testified that the Applicant’s application was incomplete as he did not fully complete the LPDE 1 Form. The version of the Applicant was that it was incorrect that he had submitted an incomplete application form. The Applicant did not provide me with a copy of the form he submitted to the Respondent in respect of the application for the promotion post. In the event that I was presented with the Applicant’s copy of the application form, same would have assisted me in this matter.
23. In his closing argument the Applicant submitted that it is a requirement in terms of Resolution 1 of 2008 that a person who has acted as a school Principal for a duration not exceeding twelve months must be shortlisted for the position he acted in. It is therefore the contention of the Applicant that he qualified to be shortlisted. The Applicant stated that he acted as Principal of Siyathula Secondary School after he received a recommendation from the School Governing Body. The Respondent’s evidence was that the Applicant was only appointed by the Respondent as Acting Principal of Sethula Secondary School from 1 May 2014 to 31 December 2014. On the other hand the Applicant stated that he acted as Principal as from 1 January 2014 to 31 May 2015. The Applicant did not provide me with proof of his appointment by the Respondent for the latter mentioned period.
24. The Applicant referred to a Circular dated 6 December 2005 which stated that should a post of Principal be available at a school; the Deputy-Principal or the most senior educator at the school cannot be overlooked for acting into the post of Principal. Ms. Van Vuuren testified that in as much she did not dispute the contents of the Circular dated 6 December 2005 it was old and that the Respondent had issued other directives relating to acting in Principal posts after the Circular was published. Was the Respondent obliged to shortlist the Applicant even though his application was not complete? I find that in the event the application of the Applicant was completely filled in, he would have been short-listed for the position of Principal. It is worth mentioning that the Circular mentioned in this paragraph does not relate to appointments but states that the person “should automatically assume the acting role”.
25. In the matter of De Nysschen v General Public Service Sectoral Bargaining Council & Others (2007) 28 ILJ 375 (LC) it was held that although the incumbent does not have a right to automatic promotion in a upgraded post, the discretion not to promote should be exercised in a way which does not constitute an unfair labour practice and does not fall foul of the balanced approach called for by the Constitutional Court. Furthermore, in the matter of Noonan v Safety and Security Sectoral Bargaining Council & Others (2012) 33 ILJ 2597 (LC) it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. 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. In the event the Applicant submitted evidence to the effect that he submitted a fully completed application form and the Respondent failed to shortlist, I would have found the action of the employer unfair. In as far as promotion is concerned, there is no guarantee that the Applicant would have been successful in the interviewing process by virtue of the fact he acted in the position of Principal. I therefore find that the Applicant has failed to prove that that he was supposed to be appointed into the position of Principal of Sethula Secondary School.
Acting allowance
26. The Applicant stated that he was appointed to act as Principal of Sethula Secondary School by the School Governing Body with effect from 1 January 2014 to 31 May 2015. Ms. Van Vuuren stated that there was no teaching activity at Sethula Secondary School when it re-opened in 2014. The Respondent submitted through Mr. Mathebula that in as much the School Governing Body can make recommendations on who must act at a school, the final decision lies with the District Manager as he or she has the delegated authority from the Head of Department to make appointments. There was no evidence that was submitted by the Applicant to the effect that the School Governing Body can make appointments of acting Principals.
27. In a letter from the South African Democratic Teachers Union (Sadtu) on behalf of the Applicant dated 23 January 2014 found at page B1 of Bundle “A” it is stated that “in all forms where he signed as acting principal they were approved”. In the same letter it is also stated that “you have ignored submissions by the SGB which recommended his acting”. I do not agree with the contention that the fact that forms wherein the Applicant signed as Acting Principal meant that the Respondent appointed him to act as such. Moreover, it can also be construed that Sadtu invariably confirmed that the Applicant was recommended to act as a Principal by the School Governing Body and that he was not appointed as an Acting Principal of Sethula Secondary School. Paragraph 7 of Resolution 1 of 2008 is in respect of short-listing processes. At paragraph 7.5 Resolution 1 of 2008 provides that if a permanent educator has acted in a position for twelve or more in a promotional post and meets the minimum requirements of the post he must be shortlisted and that the educator must have been authorized by the Head of Department to act in the position, (my emphasis). In as much paragraph 7.5 of Resolution 1 of 2008 has more relevance on the promotion process, it however confirms that it is the Head of Department who has the authority to appoint an Educator to act into a position and not the School Governing Body.
28. Mr. Mathebula conceded that the Applicant was paid an acting allowance for the period that the Respondent had approved and that there was no further acting allowance due to him. In as much the Applicant referred to the Circular dated 6 December 2005 mentioned above in respect of how the Respondent should automatically deal with an appointment of a Deputy Principal when a Principal vacates office, nowhere does it state that without any formal documentation as envisaged and implied at paragraph 7.5 of Resolution 1 of 2008, that such an appointment must be made. Moreover, at paragraph 1 of Annexure A of Resolution 8 of 2001(PAYMENT OF ACTING ALLOWANCE FOR AN EDUCATOR ACTING IN A HIGHER VACANT AND FUNDED POST) and as appearing at page 2 of Bundle “B-2” it is stated that “an educator, complying with the minimum requirements in paragraph (2) of Chapter B of the Personnel Administration Measures, shall be appointed, in writing, by the employer to act”. In the light of the aforementioned, it is therefore clear that the Applicant was not appointed to act as Acting Principal by the Head of Department for the period from 1 January 2014 to 31 May 2015. I therefore find that the Applicant’s claim for the acting allowance must fail. The applicant has failed to discharge the onus that the Respondent’s conduct was arbitrary or capricious.
AWARD
1. The Applicant’s referral is hereby dismissed.
Adv Thando Ndlebe
Arbitrator/Panellist: ELRC
Province: Limpopo
Applicant: MOHOTO, L.M
Respondent: Department of Education Limpopo
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Polokwane, Limpompo Province.
Award Date: 14 June 2016
Arbitrator: Thando Ndlebe
Case No:PSES837-15/16LP
In the matter between
MOHOTO, L.M Applicant
and
DEPARTMENT OF EDUCATION, LIMPOMPO Respondent
ARBITRATOR: Thando Ndlebe
DELIVERED: 14 June 2016
ARBITRATION AWARD
DETAILS OF THE HEARING AND REPRESENTATION
1. The matter was set down before me on 30 May 2016 as an arbitration process in Polokwane, Limpompo Province. The Applicant had referred an unfair labour with practice with the Council in terms of section 186(2) (a) of the Labour Relations Act 66 of 1995 as amended (“the LRA”).
2. The Applicant, namely Mr. L.M Mohoto, was present in the proceedings. The Applicant was represented by Mr. S.G Baloyi, an attorney from Baloyi-Shihari Attorneys. The Respondent was represented by Mr. R. Makhema, its Labour Relations Officer.
BACKGROUND TO THE DISPUTE AND ISSUE TO BE DECIDED
3. The Applicant referred an alleged unfair labour practice dispute with the Council. The Applicant was appointed by the Respondent on 25 April 1996 and is currently appointed as an Educator at Suthula Secondary School.
4. I have to determine whether or not the Respondent committed unfair labour practices against the Applicant.
SURVEY OF EVIDENCE AND ARGUMENTS
Applicant’s case
Mr. Lazaros Makgabo Mohoto
5. On 1 January 2014 he was appointed as an Acting Principal of Sethula Secondary School. He started acting as a Principal at the school after the School Governing Body wrote a letter to the Respondent to the effect that he must act in that capacity until the position was filled permanently. The new Principal only commenced his services at Sethula Secondary School on 1 June 2015. Whilst he was acting as a Principal, he performed all the normal responsibilities associated with the role. At the end of January 2014 he telephoned an official at the Circuit office and raised the issue of the acting allowance payment as he was not receiving same from the Respondent.
6. The Circuit office was aware that he was acting as a Principal as he interacted with the office during
his tenure. He discussed the issue of the non-payment of the acting allowance with officials of the
South African Democratic Teachers Union, {“Sadtu”). The letter dated 23 January 2015 at page B1 of Bundle “A” is a confirmation that Sadtu sent correspondence to the Respondent about his acting allowance. During his time as Acting Principal he was involved is summative assessments and the annual national assessments. Mr. Van Vuuren, an employee of the Respondent confirmed that he was appointed as an Acting Principal. The documents appearing pages D4 to D9 of Bundle “A” are a confirmation that he was attending to the school and that he had employees who reported to him.
7. He never received an appointment letter from the Respondent in respect of the Acting Principal position, but he received same from the School Governing Body. He acted as Principal from 1 January 2015 to May 2015. He was paid an acting allowance by the Respondent in November 2015. He does not know the exact amount he was supposed to receive as an acting allowance. The acting allowance he got paid was for the period from 1 May 2014 to 31 December 2014. The Respondent was supposed to pay the acting allowance from 1 January 2014 to 31 May 2015.
8. He never received a letter from the Respondent confirming that he was acting as Principal. The Respondent did not issue him with a termination letter in respect of the appointment of Acting Principal. Resolution 1 of 2008 provides that a person who has acted in a position for twelve months must be shortlisted in the process of filling the vacancy. He met the entry requirements for the position of Principal at Sethula Secondary School. He applied for the position of Principal on 1 September 2015, but he never received any response from the Respondent in respect of the application.
9. Paragraph 4.1 of Resolution 1 of 2008 as appearing at page C-4 and c-5 of Bundle “A” provides that the Respondent shall acknowledge receipt of applications by informing all applicants in writing of receipt, clearly indicating whether the application is complete or not and indicating whether the applicant meets the requirements for the post and that such applications have been referred to the institutions concerned. He never received feedback from the Respondent in respect of his application. The Respondent should also pay an acting allowance for the period he acted as Principal of Sethula Secondary School.
Under cross-examination, Mr. Mohoto responded as follows;
10. He was appointed by the Sethula Secondary School’s School Governing Body to act as Principal. His employer is the School Governing Body and the Respondent. He acted as Principal from 1 January 2014 to 31 May 2015. It is not correct that there was no teaching at Sethula Secondary School from January 2914 to April 2014. He does not understand paragraph 7.5 of Resolution 1 of 2008 and as appearing at page C2 of Bundle “A” where it is stated that a permanent serving educator who acts for twelve (12) or more continuous months in a promotion post and meets the minimum requirements must be shortlisted and that the educator must have been authorized by the Head of Department to act in the position. He was recommended to act as Principal by the School Governing Body.
11. He rendered services as Acting Principal at Sethula Secondary School but he was not paid an acting allowance for the whole period of the appointment. He was never appointed by the Respondent to act as Principal. He never received an appointment letter from Ms. Van Vuuren, the Palala South Circuit Manager, as appearing at Bundle “4”. He did not enrich himself during the period of acting as Principal.
Respondent’s case
Mr. Trevor Mafanele Mathebula
12. He is appointed by the Respondent as a Deputy Director-Corporate Services. He is responsible for the Respondent’s human resources management functions at District level.
13. At paragraph 3.2 of Employment Act 76 of 1998 as appearing at page 1 of Bundle “B-1” it is the Respondent that has a duty to advertise vacant posts and after advertising it has a duty to conduct the sifting process which is guided by the advert. The purpose of the sifting process during the recruitment exercise is to eliminate applicants that do not comply with the minimum requirements of the post. Applications that do not meet the minimum requirements are not sent to the recruiting schools.
14. Paragraph 4 of Resolution 1 of 2008 as appearing at pages C4 and C5 of Bundle “A” provides that the Respondent must confirm receipt of applications, indicate if the application is complete or not, indicate that the applicant meets the minimum requirements of the application and indicate if the applications have been referred to the institution concerned. Applicants must duly complete form LPDE 1 as confirmed at pages 4 and 11 to 14 of Bundle “B-1”. The LPDE 1 form requests for personal particulars, experience of the applicant and at the end it has a declaration section. In the event the LPDE 1 form is not properly completed, it means that the application will be sifted out of the recruitment process.
15. The Applicant’s application for the post of Principal of Sethula Secondary School did not have the LPDE 1 Form declaration addendum. It was not possible for the Applicant’s application to be sent to the school as it was not signed and it did not have a duly completed declaration addendum. The Respondent sent a letter dated 12 January 2015 to the Applicant by post confirming that his application was received but that it was incomplete. It was not possible to promote the Applicant to the position of Principal of Sethula Secondary School as his application could not be sent to the School Governing Body as it did not have a signed declaration.
Under cross-examination, Mr. Mathebula responded as follows;
16. The letter to the Applicant advising him of his application form was sent by mail. He did not bring the checklist information in terms of when the letter was sent to the Applicant to the arbitration proceedings. The letter at page 2 of Bundle “B-1” was signed by Mr. Mashishi who is appointed by the Respondent. It is incorrect that the Applicant acted as a Principal of Sethula Secondary School from1 January 2014 to 31 May 2015. The Applicant acted as principal from 1 May 2014 to 31 December 2014 and that is why the Respondent paid him an acting allowance for that period.
17. The letter from the School Governing Body dated 20 January 2014 as appearing at page D3 of Bundle “A” does not mean that the Respondent could immediately appoint the Applicant into the position of Acting Principal. The School Governing Body makes a recommendation to the Circuit Manager and the recommendation is then attended to for final approval of the District Manager. The Respondent did not fabricate the letter that was sent to the Applicant pertaining to the update in respect of his application. It is the District Manager who can approve appointment recommendations from School Governing Bodies. The Respondent appoints an employee to act on a promotion post by issuing him or her with a formal appointment letter. The Applicant was paid in full for the period that he acted as Principal of Sethula Secondary School.
Ms. Anna Jacoba Van Vuuren
18. She is appointed by the Respondent as a Circuit Manager for the Palala South Circuit and Sethula Secondary School falls under her jurisdiction.
19. She wrote a letter to the Respondent dated 30 October 2014 and as appearing at page 18 of Bundle “B-1” wherein he was recommending the Applicant for promotion. There was no schooling when Sethula Secondary School re-opened in January 2014. It was not possible for a Principal to act at that stage as there was no schooling. There was an employee who was supposed to act at Sethula Secondary School in 2014 but there was interference from a trade union and that person ended up not filling that position. The Respondent made a decision to appoint Mr. Ramashala into the position of Principal in March 2015. There is no employee who acted at Sethula Secondary School from 1 January 2014 to May 2014. It is the Respondent that has the authority to make appointments.
Under cross-examination, Ms. Van Vuuren responded as follows;
20. Sethula Secondary School was not operational in January 2014 because of unrest. It is the District Manager that has the final say on an appointment of an acting Principal. Paragraph 3.1 at a Circular dated 6 December 2005 and as appearing at page D of Bundle “A” means that if a position of Principal becomes available at a school, the Deputy Principal cannot be overlooked. However, the Circular dated 6 December 2005 is very old and there have been many Circulars that have been issued by the Respondent thereafter. When the Applicant was declared as excess staff at the school, there was no need to appoint him to act. The Applicant acted as Principal from May 2014 to December 2014.
ANALYSIS OF EVIDENCE AND ARGUMENT
21. In my analysis, I have considered the evidence and closing arguments from both parties. At the commencement of the arbitration proceedings the Respondent made an application to the effect that the Council lacked jurisdiction to hear this matter as the Applicant’s claims were merely “complaints”. I found in favour of the Applicant in this regard and found that the Council had jurisdiction to hear this matter.
22. The matter before me is in respect of two issues; namely, the promotion of the Applicant into the position of Principal and whether the Respondent is liable to pay the Applicant an acting allowance.
Promotion
22. It is provided at section 3(4) of the Employment of Educators Act 76 of 1998 that Educators are appointed by the Head of Department. It is therefore clear that an employee or Educator can never be appointed into a promotional post without the Head of Department or any other person with delegated authority making such formal appointment. However, before such an appointment can be made, the Respondent must follow a formal recruitment process. It was the evidence of the Applicant that he applied for the post of Principal of Sethula Secondary School but he was not considered for short-listing by the Respondent. According to the Applicant the Respondent failed to comply with paragraph 4 of Resolution 1 of 2008 because it did not inform him of the receipt of the application or whether his application was complete or not. On the other hand, the Respondent submitted evidence in terms of a letter dated 12 January 2015 and appearing at page 2 of Bundle “B-1” that his application was incomplete. The submission for the Applicant was that he never received the letter dated 12 January 2015. The Respondent through Mr. Mathebula testified that the Applicant’s application was incomplete as he did not fully complete the LPDE 1 Form. The version of the Applicant was that it was incorrect that he had submitted an incomplete application form. The Applicant did not provide me with a copy of the form he submitted to the Respondent in respect of the application for the promotion post. In the event that I was presented with the Applicant’s copy of the application form, same would have assisted me in this matter.
23. In his closing argument the Applicant submitted that it is a requirement in terms of Resolution 1 of 2008 that a person who has acted as a school Principal for a duration not exceeding twelve months must be shortlisted for the position he acted in. It is therefore the contention of the Applicant that he qualified to be shortlisted. The Applicant stated that he acted as Principal of Siyathula Secondary School after he received a recommendation from the School Governing Body. The Respondent’s evidence was that the Applicant was only appointed by the Respondent as Acting Principal of Sethula Secondary School from 1 May 2014 to 31 December 2014. On the other hand the Applicant stated that he acted as Principal as from 1 January 2014 to 31 May 2015. The Applicant did not provide me with proof of his appointment by the Respondent for the latter mentioned period.
24. The Applicant referred to a Circular dated 6 December 2005 which stated that should a post of Principal be available at a school; the Deputy-Principal or the most senior educator at the school cannot be overlooked for acting into the post of Principal. Ms. Van Vuuren testified that in as much she did not dispute the contents of the Circular dated 6 December 2005 it was old and that the Respondent had issued other directives relating to acting in Principal posts after the Circular was published. Was the Respondent obliged to shortlist the Applicant even though his application was not complete? I find that in the event the application of the Applicant was completely filled in, he would have been short-listed for the position of Principal. It is worth mentioning that the Circular mentioned in this paragraph does not relate to appointments but states that the person “should automatically assume the acting role”.
25. In the matter of De Nysschen v General Public Service Sectoral Bargaining Council & Others (2007) 28 ILJ 375 (LC) it was held that although the incumbent does not have a right to automatic promotion in a upgraded post, the discretion not to promote should be exercised in a way which does not constitute an unfair labour practice and does not fall foul of the balanced approach called for by the Constitutional Court. Furthermore, in the matter of Noonan v Safety and Security Sectoral Bargaining Council & Others (2012) 33 ILJ 2597 (LC) it was held that there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. 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. In the event the Applicant submitted evidence to the effect that he submitted a fully completed application form and the Respondent failed to shortlist, I would have found the action of the employer unfair. In as far as promotion is concerned, there is no guarantee that the Applicant would have been successful in the interviewing process by virtue of the fact he acted in the position of Principal. I therefore find that the Applicant has failed to prove that that he was supposed to be appointed into the position of Principal of Sethula Secondary School.
Acting allowance
26. The Applicant stated that he was appointed to act as Principal of Sethula Secondary School by the School Governing Body with effect from 1 January 2014 to 31 May 2015. Ms. Van Vuuren stated that there was no teaching activity at Sethula Secondary School when it re-opened in 2014. The Respondent submitted through Mr. Mathebula that in as much the School Governing Body can make recommendations on who must act at a school, the final decision lies with the District Manager as he or she has the delegated authority from the Head of Department to make appointments. There was no evidence that was submitted by the Applicant to the effect that the School Governing Body can make appointments of acting Principals.
27. In a letter from the South African Democratic Teachers Union (Sadtu) on behalf of the Applicant dated 23 January 2014 found at page B1 of Bundle “A” it is stated that “in all forms where he signed as acting principal they were approved”. In the same letter it is also stated that “you have ignored submissions by the SGB which recommended his acting”. I do not agree with the contention that the fact that forms wherein the Applicant signed as Acting Principal meant that the Respondent appointed him to act as such. Moreover, it can also be construed that Sadtu invariably confirmed that the Applicant was recommended to act as a Principal by the School Governing Body and that he was not appointed as an Acting Principal of Sethula Secondary School. Paragraph 7 of Resolution 1 of 2008 is in respect of short-listing processes. At paragraph 7.5 Resolution 1 of 2008 provides that if a permanent educator has acted in a position for twelve or more in a promotional post and meets the minimum requirements of the post he must be shortlisted and that the educator must have been authorized by the Head of Department to act in the position, (my emphasis). In as much paragraph 7.5 of Resolution 1 of 2008 has more relevance on the promotion process, it however confirms that it is the Head of Department who has the authority to appoint an Educator to act into a position and not the School Governing Body.
28. Mr. Mathebula conceded that the Applicant was paid an acting allowance for the period that the Respondent had approved and that there was no further acting allowance due to him. In as much the Applicant referred to the Circular dated 6 December 2005 mentioned above in respect of how the Respondent should automatically deal with an appointment of a Deputy Principal when a Principal vacates office, nowhere does it state that without any formal documentation as envisaged and implied at paragraph 7.5 of Resolution 1 of 2008, that such an appointment must be made. Moreover, at paragraph 1 of Annexure A of Resolution 8 of 2001(PAYMENT OF ACTING ALLOWANCE FOR AN EDUCATOR ACTING IN A HIGHER VACANT AND FUNDED POST) and as appearing at page 2 of Bundle “B-2” it is stated that “an educator, complying with the minimum requirements in paragraph (2) of Chapter B of the Personnel Administration Measures, shall be appointed, in writing, by the employer to act”. In the light of the aforementioned, it is therefore clear that the Applicant was not appointed to act as Acting Principal by the Head of Department for the period from 1 January 2014 to 31 May 2015. I therefore find that the Applicant’s claim for the acting allowance must fail. The applicant has failed to discharge the onus that the Respondent’s conduct was arbitrary or capricious.
AWARD
1. The Applicant’s referral is hereby dismissed.
Adv Thando Ndlebe
Arbitrator/Panellist: ELRC