Case Number: PSES 78815/16
Applicant: NATU OBO BUTHELEZI TS
Respondent: Department of Education KwaZulu-Natal
Issue: Unfair Labour Practice - Promotion/Demotion
Award Date: 23 June 2016
Arbitrator: M. Mbuli
Commissioner: M Mbuli
Case No: PSES 78815/16
Date of Award: 23 June 2016
In the ARBITRATION between:
NATU OBO BUTHELEZI TS (Applicant)
DEPARTMENT OF EDUCATION KZN
Union/Applicants’ representative: Magaya Sibusiso
Respondent’s representative: Zitha MT
DETAILS OF HEARING AND REPRESENTATION
1. This matter was placed on the roll for arbitration before me on 23 June 2016 at Mkhuze circuit. The Applicant Thabisile Sylvia Buthelezi was represented by Mr. Sibusiso Magaya from the National Teachers Union (NATU) and the Respondent Department of Education (KZN) by Mr. M.T Zitha. The proceedings were recorded.
PRELIMINARY ISSUES, JURISDICTION and ISSUES TO BE DECIDED
2. No preliminary or jurisdictional issues were raised and The Education Labour Relations Council (ELRC) has the required jurisdiction to hear the matter. I have to determine whether an unfair labour practice relating to promotion was committed, and if so, the appropriate relief.
BACKGROUND TO THE DISPUTE
3.This is a promotion dispute involving the post of a principal (number 1686) at Tshaneni Primary School in Mkhuze circuit. The Applicant and the second respondent, together with other candidates, applied for appointment to this position. Appointment to the post would have been promotion for both applicant and the second respondent as they were both Head of Departments. The Applicant and second respondent were shortlisted and interviewed. The Applicant was recommended for appointment by the School Governing Body (SGB) even though she was the second best candidate. The Applicant was the only female candidate who was shortlisted for the interview. In their motivation letter to the Department, the School Governing Body gave the following reasons for recommending the Applicant: (1) she is a female (2) she has acted in the position in the past (3) while acting she improved the school. The recommendations of the School Governing Body were turned down by the Head of Department of education who then appointed the second respondent to the position of the principal at the school.
THE APPLICANTS’ CASE
4. The applicant submitted that it was wrong for the Department of Education not to appoint Buthelezi as the principal of Tshanini School because the School Governing Body which is a legal structure has recommended her for appointment to the position. Buthelezi is a South African female who had serve the school as the head of department. The School Governing Body recommended her because she is a female and this is in line with the Affirmative Action Policy of the department of education. The main purpose of employing Buthelezi was to make sure that the department achieves its affirmative policy and correct the imbalances in the department. In the department of education there are few females in management positions. The School Governing Body applied the affirmative action policy of the department when it recommended Buthelezi for the appointment to the position. The School Governing Body when making recommendations took into consideration section 5.8 of the affirmative action policy which indicate that ( From the merit list (a) the person falling within the most under represented group in the category or level of the workforce where the appointment is to be made, must be recommended provided that he/she scores at least 50% at the interview (b) should a candidate from the most under represented group score less than 50% then a candidate from the next most under represented group must be recommended provided that he/she scores at least 50%)
THE RESPONDENTS’ CASE
5. The Respondent submitted that the School Governing Body failed dismally to follow the affirmative action policy of the Department when it recommended Buthelezi for the appointment of the position of the school principal at Tshaneni. In terms of collective Agreement No. 1 of 2005 ( Affirmative Action Policy) section 5.13 the School Governing Body when making recommendations for appointment on the basis of Affirmative Action Policy, must take into consideration the Department’s workforce profile. A copy of the workforce profile of the school where the appointment is to be made must accompany their recommendations for the filling of the position and this was not done. The total number of the workforce at the school is nine and there is only one African male and the rest are African females. It is very clear that the workforce of the school was not taken into consideration when the recommendations were made.
6. Section 5.11 of the Affirmative Action Policy (Collective Agreement No.1 of 2005) allows provides that the recommendations of the School Governing Body or Council for FET or the relevant recommending authority may be declined under the following circumstances (a) the provisions of the policy have been incorrectly applied or have not been applied. (b) There is evidence of bias and/or procedural irregularities. The Head of Education was within his right in terms of the Affirmative action policy when he declined the recommendations of the School Governing Body when he noticed that the policy was not followed.
ANALYSIS OF THE EVIDENCE
7. In this case I have to determine whether an unfair labour practice relating to promotion was committed, and if so, the appropriate relief.
8. An employee who alleges that she is the victim of an unfair labour practice bears the onus of proving all of the elements of her claim on a balance of probabilities. The employee must prove not only the existence of the unfair labour practice, but also that it is unfair. What is fair depends upon the circumstances of a particular case and essentially involves a value judgment.
9. The fairness required in the determination of an unfair labour practice must be fairness towards both employer and employee. Fairness to both means the absence of bias in favour of either. In deciding whether conduct relating to a promotion was unfair, an arbitrator is in a similar position to that of an adjudicator called upon to review a decision made by a functionary or a body vested with a wide statutory discretion. Therefore in order to show unfairness relating to promotion, an employee needs to show that the employer, in not appointing him or her and appointing another candidate, acted in a manner which would ordinarily allow a Court of law to interfere with the decisions of a functionary by proving for example that the employer had acted irrationally, capriciously or arbitrarily, was actuated by bias, malice or fraud, failed to apply its mind or unfairly discriminated. Furthermore he needs to prove that had it not been for the unfair conduct, he would have been promoted. This he can only do by proving that he was the best of all the candidates who applied for the post.
10. In terms of First Respondent’s Affirmative action policy the School Governing Body when making recommendations must take into consideration the Department’s workforce profile. A copy of the workforce profile of the school where the appointment is to be made must accompany their recommendations for the filling of the post. Clearly in this instance it did not happen as the letter of the recommendation from the School Governing does not mention anything about the work profile of the school. When one also looks at the profile of the school as submitted by the First Respondent, it is clear that it is being dominated by African females and to be specific eight females. This clearly shows that the African females are over represented in this school.
11. In relation to the Department’s workforce that must to be taken into consideration, the Applicant’s representative submitted that the African females are underrepresented on the principal position but he did not provide any statistics to the claim.
12. I find that if the School Governing Body wanted really implement the Affirmative Action of the Policy, it should have requested the Department’s workforce profile from the department and also take into consideration the workforce profile of the school before making recommendations on the appointment of the Applicant not just assume that females are underrepresented in the position for principals. This would have confirmed whether or not African females were underrepresented in the category they wanted to employ in. I fully support their intention of applying affirmative action, but in doing so they must comply with the policies of the department.
13. Based on the above I find that the Head of Department was within his rights to decline the recommendations of the School Governing Body because the Affirmative Action Policy was not followed.
14. There is no unfair labour practice perpetrated upon the Employee. The application is accordingly dismissed and there is no order as to costs.