Case Number: PSES 824-15/16LP
Applicant: Malesela Elias Moloto
Respondent: Department of Education Limpopo
Issue: Unfair Labour Practice - Promotion/Demotion
Venue: Department of Education-Limpopo, 113 Biccard Street, Polokwane.
Award Date: 20 July 2016
Arbitrator: ELIAS KHUTSO MPAI
Panellist/s: ELIAS KHUTSO MPAI
Case No.: PSES 824-15/16LP
Date of Award: 20th July 2016
In the ARBITRATION between:
MALESELA ELIAS MOLOTO
(Union / Applicant)
DEPARTMENT OF EDUCATION – LIMPOPO First Respondent
MAOTO, RAISIBE JERMINA Second Respondent
Union/Applicant’s representative: ATTORNEY (MR L.S. SETLATJILE)
Telephone: 015-293 1666
Telefax: 015-293 1700
Respondent’s representative: MR T.M. MAHASHA
Telephone: 015-290 9352
Telefax: 015-297 6920/4320/4494/0507/086-611 8194
Second Respondent: Maoto, Raisibe Jermina
Address P.O. Box 560
Tel: 073-927 0589
DETAILS OF THE HEARING AND REPRESENTATIONS.
 The Arbitration hearing was held on the 24th JuLY 2016 at 10h00 at the Department of Education-Limpopo, 113 Biccard Street, Polokwane.
 The Applicant, Mr M.E. Moloto appeared in person assisted by Mr L.S. Selatjile, an Attorney while the first Respondent was represented by Mr T.M. Mahasha, the labour relations officer. The second Respondent was in default after submitting a letter that she will not attend.
 Ms C. Kgatle was scheduled as the interpreter and the proceedings were digitally recorded.
BACKGROUND TO THE ISSUE.
 The Applicant is employed by the Respondent as an Educator since 1993 stationed at Modimolle Primary School with his gross salary being R275 280-00 per annum.
 On the 14th April 2014, the Respondent advertised a Principal level 1 position at the Applicant’s School and he applied for the position.
 He was shortlisted and attended the interviews where he was found to be the best candidate.
 The interviewing panel recommended the 2nd Respondent who was rated as the second best candidate for the position and the Head of Department (HOD) then appointed the Second Respondent to the said position.
 The Applicant was previously appointed as the acting Principal at the same School effective from the 01st June 2013 until the 01st June 2015.
 The Applicant is not satisfied with his non-appointment hence he referred a dispute to the Council after he followed the internal grievance procedures.
 The dispute was initially scheduled for Conciliation/Pre-Arbitration hearing where it could not be resolved and the parties prepared and filed the minutes of their Pre-Arbitration hearing.
 The matter was then scheduled for Arbitration hearing where a joinder Ruling was maded joining the second Respondent in these proceedings.
 The second Respondent was in default after she submitted a letter wherein she indicated that the dispute may be arbitrated in her absence.
 The Applicant feels that he should have been appointed to the Principlaship position as he was the best candidate while the first Respondent submitted that the second Respondent was appointed in line with its Employment Equity Plan (EEP).
 The parties’ representatives submitted bundles of documents, with the Applicant submitting Exhibit “A” while the first Respondent submitted Exhibit “B” and the second Respondent submitted Exhibit “C”.
ISSUE TO BE DECIDED.
 I have to decide whether the Respondent committed an unfair labout practice by not appointing the Applicant to the Principalship position or not. Should I find that he committed same, I will then have to determine the appropriate relief in line with the Applicant’s prayer for his appointment to the said position.
SURVEY OF EVIDENCE AND SUBMISSIONS.
The parties’ witnesses testified under oath and their evidence is briefly as follows: -
Moloto, Malesela Elias.
 Exhibit “A21” is the Departmental Notice dated the 11th September 2014 wherein the post in question was advertised. On the face of it it said: “The Limpopo Province Department of Education is an equal opportunity, affirmative action, gender sensitive employer. I invite and encourage all qualified educators to view the vacancies as an opportunity to make a meaningful contribution in the reconstruction and development of our province”.
 Exhibit “A30” is the outcome of his grievance whereby he was informed that as per the Interview Committee, he was ranked position No. 1, however the Department appointed a person who took position two (2) based on the Respondent’s Employment Equity Plan.
 In the advertisement, it was never indicated that it was an EEP position instead it invited all qualified people to apply.
 As he qualified he applied for the position and he was ranked position 1 but he was not appointed. If he did not qualify he would ot have applied for the advertised position.
 As per Exhibit “B41” he scored 72.4% while the second Respondent scored 67.4% in the interviews.
 Paragraphs 2© and (d) to Exhibit “B58” which is Circular 40/2012 dated the 17th April 2012, provides that: -“The school Governing Body shall recommend a candidate from the designated groups as per the Employment Equity Profile of the School/Circuit if the diference in score is equal to or less than five (5) percentage points as compared to that of other groups. The principle of the difference of five (5) percentage point of a candidate from designated groups shall guide the Head of Department or the delegated authority in making an appointment.”
 Paragraph 3 thereof provides that: - “This circular shall be used in shortlisting and interviewing process, for the purposes of promoting equal opportunities and redressing unfair discrimination experienced by the designated groups.”
 The above circular was never brought to his attention by the circuit manager, Mr P.E. Seroba who had the responsibility to circulate it. The Department treated him unfairly by not appointing him to the advertised position.
 The Respondent should have informed the SGB and the candidates of the School’s EEP profile before the interviews.
 As per Exhibit “B25” he applied for a promotional position under the Greater Sekhukhune District wherein nineteen (19) Principalship positions were required, out of which six (6) were to be males while thirteen (13) had to be females.
 It is the first time that he is seeing the Respondent’s District EEP targets that had to be met for 2014 but the Respondent should have considered the School’s profile.
 Exhibit “B22” reflects the Departmental Demographics and under Education, there are 23 816 male and 31 416 females while as per Exhibit “B35” there are 536 African male Principals and 200 African female Principals under the Sekhukhune District as in March 2015.
 As per Exhibit “B43”, the difference between his 72,4 percentag points and the second Respondent’s 67.4 percent is 5 percent.
 The HOD implemented the EEP while guided by the recommendations by SGB in appointing the second Respondent to the Principalship post in question.
 As per Exhibit “A26” paragraph N.B. (4) provides that: - “The Limpopo Province Department of Education is an equal opportunity, affirmative action employer. The Empoyment Equity Policy of the Department as outlined in Departmental Circular No. 40 of 2012 must be strictly adhered to”.
 When he applied for the advertised post, he read the advertisement as per Exhibit “A21” to “A29” which is inclusive of the above paragraph.
 He is not aware that the first Respondent is a designated employer with more than fifty employees, who must implement the Employment Equity Act (EEA).
 She is employed in the department of Development and HR planning where her role is to implement the first Respondent’s EEP as per Exhibit “B1” to “B36”.
 The first Respondent advertied posts as per Exhibit “A21”. In terms of Exhibit “A26” paragraph marked N.B. (4) he had to strictly adrere to the EEP of the Department which was part of the advertisement of the post in dispute. Circular 40/2012 was developed in order to implement the first Respondent’s EEP.
 The Circular was circulated prior to the implementation of the guidelines on the EEP and workshops were even conducted and trainings were conducted thereon.
 The last table on Exhibit “B25” reflects Sekhukhune District’s numerical goals which the first Respondent wanted to achieve in a certain period and the second Respondent wanted to appoint 19 Principals out of whom, 13 were to be females and 6 were to be males.
 The second Respondent could not use the school’s profile to appoint the Principal at the Applicant’s School as there is only one Principal position per school, hence they adhered to the District and Curcuit level profiles.
 Exhibit “B22” reflects the Departmental Demographics that existed by then, where females were more than males.
 As per Exhibit “B35” there were 543 male Principals which is 72,9% and 202 female Principals which made up 27.1%.
 The Applicant was rated the best candidate by the Interview Committee while the second Respondent was rated the second best candidate but the Applicant was not appointed to the position in line with Circular No. 40/2012 contained in Exhibit “B57”. That was done in order to adhere to the EEA.
 Based on paragraph 3 to Exhibit “B57” which relates to 5% points difference, the second Respondent was appointed to the disputed post due to her gender.
 You can only refer to the school profile if you were to appoint more than one (1) Principal, however because it was only one Principal that could be appointed per School, they used the Circuit and District profile in appointing the Principal.
ANALYSIS OF EVIDENCE AND FINDINGS.
 The burden of proof is on the Applicant to prove on a balance of probabilities that the Respondent committed an unfair labour practice.
 From the evidence tendered, it is common cause that the parties are in agreement in almost everything except that the Applicant feels that he should have been appointed as the Principal instead of the second Respondent as he was the best candidate.
 On the contrary, the Respondent submitted that the Applicant was not appointed as the Respondent was implementing its EEP programme in line with Circular No. 40/2012. Reference was made to the contents of Exhibit “A26” wherein it was specified that the Department’s EEP should be strictly complied with.
 It is important to note that as per the Respondent’s numerical demographics, he had more male Principals than the female Principals though he had more female staff members than males.
 The second Respondent wanted to fill up nineteen (19) Principalship positions in the Sekhuhkune District out of which, six (6) Principals had to be males and thirteen (13) had to be females.
 It canno be falted that the Respondent had to apply its EEP in order to achieve its target of redressing the gender imbalances in the District. The Respondent developed an EEP whereby he implemented stratergies aimed at achieving its objectives on gender.
 The Applicant conceded that Exhibit “A21” to “A29’ were part of the advertisement to which he responded by applying for the advertised position to which he was rated the best candidate and he was aware of its contents and provisions.
 He argued that the first Respondent did not inform him and the SGB about the EEP which was to be implemented in filling up the advertised positions. As per Circular 40/2012, the 5% points difference was to give guidance to the HOD in effecting an appointment.
 The Adevertisement was spot on and it secified the needs that were to be catered for in filling up the vacant position in the Applicant’s School. It might be that his expctations were erroneously raised by the fact that he acted as the Principal at the said school for mlore than two (2) years.
 However, the mere fact that a person acted in a position does not in itsel guarantee him automatic appointment to the position when it is advertised to be filled. Instead he has to apply and contest for the position subject to him meeting other additional requirements.
 The Applicant argued that the position was not advertised as an employment equity position otherwise he would not have applied. This is strange because he was aware of the post requirements which emphasized the first Respondent’s EEP.
 The difference between the Applicant’s percentage points and that of the second Respondent was 5% and she was a female, which entitled the first Respondent to appoint her as opposed to the Applicant, notwithstanding that he was the best candidate.
 Mrs Ngoasheng for the first Respondent was specific in her explanation on how the Respondent’s EEP was to be implemented. She submitted that they could not use the School’s profile in order to appoint a Principal while the Applicant on the contrary argued that the School’s profile was supposed to have been used.
 The submissions by Mrs Ngoasheng made more sense in that they could not use the School’s profile because they were to appoint one (1) Principal per School. It mde further sense in that they wanted to minimize the gender imbalances within the District of Sekhukhune which had at least thirty-seven (37%) percent more male Principals than females.
 It cannot therefore be argued that the Respondent was unfair in implementing its EEP in order to meet its set targets.
 I find that the Applicant did not succeed in proving on a balance of probabilities that the Respondent committed an unfair labour practice by not appointing him to the Principalship position.
 The Respondent did not commit an unfair labour practice.
The Applicant’s case is hereby dismissed.
DATED AT MAKHADO ON THIS THE 24TH DAY OF JULY 2016.
KHUTSO MPAI:- COMMISSIONER